9911796707
TMI Blog2003 (3) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... Eviction has been ordered under Clauses (a) and (h) of sub-Section (1) of Section 21 of the Act by the Rent Controller and upheld by the High Court in exercise of revisional jurisdiction under Section 50(1) of the Act. The singular issue surviving for decision at this stage and around which the learned counsel for the parties have centered their submissions is: whether the appellant is entitled to protect his possession under Section 53A of the Transfer of Property Act, 1882 and hence not liable to suffer eviction based on landlord-tenant relationship which has ceased to exist on account of subsequent events. The plea arises for determination in the background of the facts briefly stated hereinafter. The suit premises were initially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant herein against N. Shamanna the original owner, Nanjamma wife of the original owner and A. Sreenivasan, the present owner and the respondent herein (respectively impleaded as defendant nos. 1, 2 and 3 in the suit) seeking specific performance of the alleged agreement to sell of the year 1970 in his favour. The respondent herein was impleaded as subsequent transferee. The Trial Court held that though there was an agreement to sell in favour of the appellant, however, the suit filed by him was barred by limitation and also suffered from gross delay and laches. The respondent was held to be a transferee without notice of agreement in favour of the appellant, having purchased the property bona fide and for consideration. It was held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been completed in the manner prescribed therefore 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. The essential features of the equitable doctrine of part performance as statutorily modified and incorporated in Section 53A abovesaid, to the extent relevant for the purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the contract. It would be a contradiction in terms. On the suit for specific performance of contract having been dismissed, such a plea is not available to raise. There are reasons more than one why the appellant cannot be permitted to raise the plea of part performance and seek shelter thereunder. The civil suit which was filed by the appellant was initially filed in the year 1989 as a suit for injunction seeking to protect his possession. After about four years from the date of institution of the suit the relief of specific performance was also added by way of amendments in the year 1993. On 1.9.1999, the suit was dismissed in its entirety. Not only was the plaintiff's claim for specific performance and monetary relief in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g altered from that of a tenant into that of a transferee. In a suit of ejectment based on landlord-tenant relationship, the tenant sought to protect his possession by raising the plea of part performance as against subsequent purchaser of the property. Referring to Section 91 of Indian Trust Act, the High Court held that a subsequent purchaser of the property with notice of an existing contract affecting that property must hold the property for the benefit of the person in whose favour the prior agreement to sell has been executed to the extent it is necessary to give effect to that contract. But that does not mean that till a final decision has been reached the contract creates a right in the person in possession, i.e. the tenant, to refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere retention of possession to evidence part performance and some act done in furtherance of the contract and some act done in furtherance of the contract. Strong reliance was placed by the learned senior counsel for the appellant on a recent decision of this Court in Shrimant Shamrao Suryavanshi Anr. Vs. Pralhad Bhairoba Suryavanshi (Dead) by Lrs. Ors., (2002) 3 SCC 676, wherein this Court has held that a person obtaining possession of the property in part performance of an agreement of sale, can defend his possession in a suit for recovery of possession filed by the transferor or by subsequent transferee of the property claiming under him, even if a suit for specific performance of the agreement of sale has become barred by limita ..... X X X X Extracts X X X X X X X X Extracts X X X X
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