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Govind Prasad Dubey v. Chandra Mohan Agnihotri And Another
Judgment Summary — K.K. Lahoti, J.
Factual and Procedural Background
This petition challenges an order dated 28-01-2009 of the 1st Additional District Judge, Hoshangabad in Civil Suit No. 34-A/2006, by which the trial court rejected an application filed by the petitioner under Order 1, Rule 10 read with Section 151 of the Civil Procedure Code (application dated 11-11-2008) seeking impleadment as a defendant in an eviction suit. The eviction suit had been filed by respondent No. 1 against respondent No. 2 under Section 12 of the M.P. Accommodation Control Act, 1961.
The petitioner's asserted factual position (as set out in his application and affidavit) was that in 1993 the disputed property was recorded in the name of the plaintiff/respondent No. 1; that the petitioner and respondent No. 2 (his brother Keshav Dubey) together contracted to purchase the premises for Rs. 90,000/-, of which Rs. 45,000/- was allegedly paid by the petitioner; that an oral agreement existed that the sale deed would record the petitioner's Rs. 45,000/- payment and that the first floor sale would be effected in favour of the petitioner and possession of the suit property held by Keshav Dubey would be treated on behalf of the petitioner. The petitioner sought impleadment in the eviction suit to protect these asserted interests.
The trial court heard the application and dismissed it. The trial court found, inter alia, that the petitioner alleged an oral agreement, the eviction suit was based on landlord-tenant relationship (tenancy) and did not plead tenancy by the petitioner, no written agreement was placed on record, the petitioner had not filed a suit for specific performance (whereas defendant Keshav Dubey had pleaded a suit for specific performance in his written statement), impleading the petitioner would enlarge the scope of the eviction suit, and the petitioner was not a necessary party to the eviction suit. The present petition challenges that dismissal.
Legal Issues Presented
- Whether the trial court erred in refusing to implead the petitioner as a defendant under Order 1, Rule 10 read with Section 151, Civil Procedure Code, in the eviction suit filed under Section 12 of the M.P. Accommodation Control Act, 1961.
- Whether the petitioner could invoke the doctrine of part performance under Section 53-A of the Transfer of Property Act (T.P. Act) on the basis of the alleged oral agreement and alleged part-payment/possession.
- Whether an alleged contract of sale, without a written instrument or registration as required by Sections 53-A and 54 of the T.P. Act, can give rise to such an interest as to render the petitioner a necessary party in an eviction suit between landlord and tenant.
Arguments of the Parties
Petitioner's Arguments
- The petitioner asserted that he was a necessary party to the eviction suit because he and respondent No. 2 had entered into a contract to purchase the disputed premises for Rs. 90,000/-, out of which the petitioner paid Rs. 45,000/-, and that he was in possession of the suit premises in part performance of the contract.
- The petitioner contended that, because he had an interest arising from that contract and there was alleged collusion between respondent Nos. 1 and 2, it was necessary to implead him as a defendant in the eviction suit to protect his interest.
- The petitioner relied on the Apex Court judgment D.S. Parvathamma v. A. Srinivasan (2003) 4 SCC 705 and a judgment of this Court in Mukhtiyar Mohammad v. Panna Lal (1984 MPLJ 514 : AIR 1985 MP 122) in support of his plea for impleadment under Order 1, Rule 10 CPC.
- In his affidavit filed in the trial court the petitioner admitted that the agreement between the parties was an oral agreement and that no written document was available with him.
The opinion does not contain a detailed account of specific legal arguments advanced by respondent No. 1 or respondent No. 2 in opposition to the impleadment application beyond the trial court's findings summarized above.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| D.S. Parvathamma v. A. Srinivasan, (2003) 4 SCC 705 (AIR 2003 SC 3542) | Earlier Apex Court authority dealing with a tenant claiming benefit under part performance and the consequences when the tenant fails to disown his character as lessee or to prove delivery of possession in part performance. | The petitioner relied on this decision. The court held that D.S. Parvathamma was not applicable to the present facts because in that case the agreement of sale was in favour of a tenant in possession and the tenant failed to disown his character as a lessee and failed to prove part performance; on those grounds the Apex Court denied relief. The present court found that the facts here did not permit reliance on that judgment to support the petitioner's claim. |
| Mukhtiyar Mohammad v. Panna Lal, 1984 MPLJ 514 : AIR 1985 MP 122 | Judgment of this Court cited by the petitioner in support of his plea for impleadment. | The petitioner placed reliance upon this judgment in his submissions. The opinion records the reliance but does not develop or apply any specific principle from it in detailed analysis; it does not form the basis for relief to the petitioner. |
| Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (Dead) Through Lrs., (2004) 8 SCC 614 | Authority explicating the doctrine of part performance under Section 53-A T.P. Act and listing the essential conditions (ingredients) for invoking Section 53-A. | The court relied on this Apex Court decision to set out the conditions required by Section 53-A (contract for transfer for consideration; contract must be in writing signed by transferor or on his behalf; writing must make terms ascertainable; possession in part performance; acts in furtherance; transferee performed or willing to perform). The court applied these conditions to the petitioner's factual assertions and found the essential ingredients absent. |
| Bhagwandas Parsadilal v. Surajmal, AIR 1961 MP 237 | Case cited in the course of judicial discussion (relied upon in D.S. Parvathamma). | The court noted that D.S. Parvathamma had relied on Bhagwandas Parsadilal. The court concluded that Bhagwandas Parsadilal was not applicable on the facts of the present case. |
Court's Reasoning and Analysis
The court analysed the petition by reference to the nature and scope of the eviction suit and the statutory requirements for claiming relief under Sections 53-A and 54 of the Transfer of Property Act, as well as the procedural question of necessary parties under Order 1, Rule 10 CPC.
Step-by-step analysis as set out in the opinion:
- The court began by noting that the underlying suit is an eviction suit under Section 12 of the M.P. Accommodation Control Act, 1961, which is limited in scope to disputes arising from landlord-tenant relationships and the lis is principally between landlord and tenant.
- The petitioner alleged an oral agreement of sale (1993) and part-payment of consideration (Rs. 45,000/-) and claimed possession in part performance. However, the petitioner's own affidavit admitted that the agreement was oral and that no written document was available.
- The court observed there was no written agreement between the parties on record and no evidence of steps taken by the petitioner over the roughly 15-year period since 1993 to enforce any agreement or to claim part performance as envisaged under Section 53-A of the T.P. Act.
- The court emphasised the statutory requirements of Section 53-A, quoting the provision and then applying it. The court noted that Section 53-A requires a contract in writing signed by the transferor (or on his behalf) from which the terms necessary to constitute the transfer can be ascertained; possession in part performance and acts in furtherance are also required.
- Relying on the Apex Court decision in Rambhau Namdeo Gajre, the court set out the essential ingredients of Section 53-A and observed that the petitioner had not shown a contract in writing, that he had been put into possession in part performance, that he had done acts in furtherance, or that he had performed or was willing to perform his part of the contract. Thus, the essential ingredients for invoking Section 53-A were not established on the material before the court.
- The court also referred to Section 54 of the T.P. Act which explains that a contract for sale, by itself, does not create any interest or charge in the property and that transfer of ownership in respect of immovable property of value of one hundred rupees and upwards can be made only by a registered instrument. On that statutory basis the court observed that no interest in the property was created in favour of the petitioner in the absence of the necessary document/registration.
- The trial court's factual findings were noted: the eviction suit was founded on tenancy; the petitioner had not pleaded tenancy with the plaintiff; defendant Keshav Dubey had pleaded a suit for specific performance in his written statement while the petitioner had not filed such a suit; impleading the petitioner would enlarge the scope of the eviction suit; and the petitioner was not a necessary party to the eviction suit.
- The court considered the precedents relied upon by the petitioner (including D.S. Parvathamma) and explained why those authorities did not aid the petitioner on the facts: D.S. Parvathamma involved different factual circumstances and did not support the petitioner's position here; Bhagwandas Parsadilal was likewise not applicable on these facts.
- On the combined statutory and factual analysis, the court concluded that prima facie the petitioner had not made out a case for impleadment as a necessary party and that the trial court's rejection of the impleadment application was justified.
Holding and Implications
Holding: The petition is dismissed at the admission stage, with no order as to costs. (The court's final line: "Petition dismissed.")
Implications:
- Direct effect: The trial court's order rejecting the petitioner's application under Order 1, Rule 10 read with Section 151 CPC to be impleaded as a defendant in the eviction suit is upheld; the petitioner will not be impleaded in that eviction suit on the basis of the material before the court.
- Statutory and evidentiary note: The decision emphasises that to claim protection under Section 53-A of the Transfer of Property Act a written contract (signed by the transferor or on his behalf) from which essential terms can be ascertained is an essential prerequisite; an oral agreement and unsupported assertions of part-payment and possession were held insufficient on the present facts.
- No extension of precedent: The court did not lay down any novel legal principle beyond applying existing statutory requirements and precedent; the opinion treats the matter as one of applying settled principles to the facts and finds no merit in the petition on that basis.
Petition dismissed.
K.K Lahoti, J.:— This petition is directed against an order dated 28-1-2009 by the 1st Additional District Judge, Hoshangabad in Civil Suit No. 34-A/2006, by which an application filed by petitioner under Order 1, Rule 10 read with section 151, Civil Procedure Code, dated 11-11-2008 was rejected.
2. Learned Counsel for petitioner submitted:—
(a) That the petitioner was necessary party in the suit filed by respondent No. 1 against respondent No. 2.
(b) That the petitioner along with respondent No. 2 entered into a contract to purchase the disputed premises for a consideration of Rs. 90,000/-. Out of this, Page: 569Rs. 45,000/- were paid by the petitioner and in part performance of the contract petitioner was in possession of the suit premises. In the aforesaid circumstances, when a suit for eviction was filed by respondent No. 1 against respondent No. 2, to protect the interest of petitioner, it was necessary to implead him as defendant.
(c) That there was collusion between respondent Nos. 1 and 2 so it became necessary for the petitioner to implead him as party.
(d) The petitioner placed reliance to the Apex Court judgment in D.S Parvathamma v. A. Srinivasan, (2003) 4 SCC 705 : AIR 2003 SC 3542 : (2003) 4 SCC 705, and a judgment of this Court reported in Mukhtiyar Mohammad v. Panna Lal, 1984 MPLJ 514 : AIR 1985 MP 122 and submitted that this petition be allowed, impugned order be quashed and application filed by the petitioner for his impleadment as party under Order 1, Rule 10, Civil Procedure Code, be allowed.
3. To appreciate the aforesaid contention, factual position in the case may be stated. The respondent No. 1 filed a suit for eviction under section 12 of the M.P Accommodation Control Act, 1961 (hereinafter referred to as ‘Act’ for short) against respondent No. 2. In the said suit the petitioner filed an application under Order 1, Rule 10 read with section 151, Civil Procedure Code, stating that the disputed property was recorded in the revenue papers in the year 1993 in the name of plaintiff Chandra Mohan Agnihotri. An amount of Rs. 90,000/- was paid to the plaintiff out of which Rs. 45,000/- was paid by the petitioner along with his brother Keshav Dubey, on the same date it was agreed between plaintiff, defendant and petitioner that in the sale deed this fact would be mentioned that out of total consideration, Rs. 45,000/- were paid by the petitioner herein. It was further pleaded in the application that at the time of execution of sale deed, the sale of 1st floor was to be effected in favour of petitioner and the possession on the suit property of defendant Keshav Dubey shall be treated on behalf of petitioner.
That on the date of filing of application 11-11-2008, petitioner became aware that a suit was filed by the respondent No. 1 against respondent No. 2, but without making such averments in the plaint in respect of agreement between the petitioner, respondent No. 2 and plaintiff.
On the aforesaid grounds it was prayed that the petitioner be impleaded as defendant No. 2 in the plaint.
4. Along with the application petitioner filed an affidavit before the trial Court, which is available on Pages 13, 14 and 15 of the paper book, in which in Para 2 of the affidavit the petitioner had stated a fact that the said agreement was oral agreement and no document was available with him.
5. The trial Court after hearing both the parties founda:—
(i) That the petitioner has alleged an oral agreement between the parties.
(ii) That the present suit is based on landlord-tenant relationship and the petitioner had not alleged any tenancy with the plaintiff.
(iii) That the petitioner had not filed any suit for specific performance of the contract, while the defendant No. 1 filed a suit for specific performance of the contract against the plaintiff as was pleaded by the defendant in Para 33 of the written statement. The trial Court found that in case the plaintiff proves the tenancy the suit shall be decided, but by impleading the petitioner as party, it shall enlarge the scope which is not permissible under the law.
(iv) That the petitioner was not necessary party for the decision of the suit.
(v) That the petitioner may file an application for his implcadment in the suit filed by the defendant Keshav Dubey against the plaintiff for specific performance of the contract, but in the present suit of eviction he was not necessary party and dismissed the application.
This order is under challenge in this petition.
6. In this case, it is not in dispute that the present suit was filed for eviction on the ground enumerated under section 12 of the Act. The scope of suit is limited and the lis is between the landlord and tenant based on tenancy. Though the defendant Keshav Dubey, who is the real brother of petitioner, in written statement took a plea of alleged agreement with the plaintiff, but it appears that he had not pleaded in the written statement that such agreement was along with petitioner and plaintiff. There is no written agreement between the parties and on the basis of an oral agreement, the present application was filed. It is alleged that the entire consideration of Rs. 90,000/- was paid by the petitioner and defendant to the plaintiff, but without any document. The alleged agreement as pleaded in the plaint was of 1993 and the period of near about 15 years has elapsed since then, but what steps were taken by the petitioner for enforcing the agreement nothing is on record to claim part performance as envisaged under section 53-A of Transfer of Property Act, (hereinafter referred to as ‘T.P Act’ for short). A written agreement is the essential requirement under section 53-A of the T.P Act. For ready reference section 53-A may be quoted which reads as under:—
“53-A. Part performance. — Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,
and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,
and the transferee has performed or is willing to perform his part of the contract,
then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.”
In view of the aforesaid specific provision, to claim a plea under section 53-A of the T.P Act a written contract was essential and in absence of any document in writing, the petitioner was not entitled to claim a plea of part performance in the matter. Apart from this, section 54 of the T.P Act Page: 571specifically provides that the contract for sale of immovable property by itself does not create any interest or charge in the property. In view of specific mandate under section 54 of the T.P Act, no interest or charge on such property was created in favour of petitioner. In view of specific mandate under section 54 when no interest was created in the property, the petitioner was not entitled to be impleaded as party. For ready reference section 54 may be quoted, which reads as under:—
54. “Sale” defined. — “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made. — Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upward, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. — A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself create any interest in or charge on such property.”
7. The Apex Court considering this aspect in Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (Dead) Through Lrs., (2004) 8 SCC 614, held that the doctrine of part performance aims at protecting the possession of such transferee provided certain conditions contemplated by section 53-A are fulfilled. These conditions are:—
(a) there must be a contract for transfer for consideration of any immovable property,
(b) the contract must be in writing, signed by the transferor or someone on his behalf,
(c) the writing must be in such words from which the terms necessary to construe the transfer may be ascertained,
(d) the transferee must in part performance of the contract take possession of the property, or of any part thereof,
(e) the transferee must have done some act in furtherance of the contract; and
(f) the transferee must have performed or be willing to perform his part of the contract.
8. In the present case, it is not the case of petitioner that there was a contract in writing between the petitioner and respondent No. 1, the petitioner was put into possession of the suit property in part performance of the contract, the petitioner had done some act in furtherance of the contract or the petitioner had performed or was willing to perform his part of the contract. In absence of aforesaid essential ingredients of section 53-A of the T.P Act, prima facie no case was established in favour of petitioner.
9. So far as the judgment of Apex Court in D.S Parvathamma (supra), in that case the agreement of sale of the premises by original landlord was in favour of tenant in possession. The tenant failing to disown his character as lessee and also failing to prove that possession was delivered to him in part performance of the agreement, he was not entitled for any benefit. Apart from this suit for specific performance of contract filed by the tenant was dismissed on merits. On the aforesaid grounds the Apex Court held that the tenant was not entitled to claim any benefit in the case. The Apex Court relied on the case of Bhagwandas Parsadilal v. Surajmal, AIR 1961 MP 237, in the matter.
10. In view of aforesaid factual position petitioner is not entitled to take any benefit of D.S Parvathamma (supra). Similarly judgment of this Court in Bhagwandas Parsadilal (supra) is not applicable in the facts of the present case.
11. In view of aforesaid factual discussion, we do not find any merit in this petition. This petition is dismissed at admission stage, with no order as to costs.
Petition dismissed.
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