9911796707
TMI Blog1985 (9) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt came into existence on November 1, 1966. In view of the provisions of Delhi High Court Act, the suit was transferred to Delhi High Court and was registered as Suit No. 28 of 1967. 3. The prayer in the original plaint was to the following effect: (a) That a decree for specific performance of the agreement for sale of the building known and styled as No. 77, Sunder Nagar, New Delhi, along with the lease-hold rights in the site of the said property leased by Defendant No. 1 from the President of the Union of India, be passed in favour of the Plaintiff and against the Defendants, and the Defendants be directed to apply for permission to the Chief Commissioner and convey the property on receipt of permission and in case the Defendants refuse to apply for permission and convey the property to the Plaintiff by executing the sale deed and getting the same registered and delivered to the plaintiff, proper procedure prescribed under the law, may please be adopted. (b) That all rents and profits of the property during the pendency of the suit may also be allowed to the plaintiff. (c) That in case specific performance be not allowed, a decree for ₹ 15,000/- on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n execution petition (No. 27 of 1980) which sought relief in the following words: The decree for Specific Performance was passed by this Hon'ble Court on 8-3-1979. The said appeal was also dismissed by this Hon'ble Court on 21-1-1980 with costs. That after the dismissal of the appeal, the judgment-debtors were required to execute the Sale Deed after complying with the formalities on the receipt of the balance sale consideration but they have refused to obey and comply with the decree. The two bank drafts totalling ₹ 1,87,500/- being the balance sale consideration (after deducting ₹ 15,000/-already paid as earnest money from the sale consideration of ₹ 2,02,500/-) are enclosed herewith. The drafts have been made in the name of Registrar of this Hon'ble Court. The Decree Holder is entitled to recover costs from the judgment-debtors and to adjust the same towards and against the balance sale consideration. The decree-holder is also entitled to recover and adjust the amount of rent which has been received by the judgment-debtors from the tenants of the property in suit namely, 77 Sunder Nagar, New Delhi with effect from 8-3-1979 as ordered by the Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Smt. Har Pyari (2) Dr. Sudhir Kaicker, Dr. Sushma and Mrs. Shobha and Brig. Bhawani Shanker, returnable for 20th March, 1985. Process fee within a week. Dasti. Warrants of possession were issued but possession could not be delivered on account of resistance of M/s. Batliboi Co. Ltd. (hereinafter referred to as 'Batliboi') and M/s. S.M.S. Investment Corporation Pvt. Ltd. (hereinafter referred to as SMS Corporation') who came up with the objection petitions. 9. The objections of Batliboi are contained in the application registered as E.A. 68/85. During the pendency of those objections, that company filed an application (registered as EA. 134/85) for permission to urge further grounds mentioned therein, which was allowed. 10. The objections of SMS Corporation are contained in the application registered as E.A. 71/85. During the pendency of those objections, the said company also filed an application (registered as E.A. 135/85) for permission to urge further grounds mentioned therein, which was allowed. 11. Batliboi is in possession of ground floor of the property in dispute i.e. 77, Sunder Nagar, New Delhi. That floor is actually occupied by Mr. B.M. Lal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also contended that in view of Section 52 of Transfer of Property Act, the creation of tenancies during the pendency of suit, for specific performance were not binding on the decree-holder. Following issues were framed on March 29, 1985: 1. Are the tenancies of the objectors created by Brig. Bhawani Shanker binding on the decree-holder? OP Objectors. 2. Are the tenancies created by Brig. Bhawani Shanker on 1st June, 1979 in respect of ground-floor in favour of M/s. Batliboi Co. Ltd., New Delhi and on 23rd January, 1976 in respect of first-floor in favour of M/s. S.M.S. Investment Corporation Pvt. Ltd. not hit by Section 52 of the Transfer of Property Act and are binding on the decree-holder? OP Objectors. 3. Is the decree-holder estopped from challenging the right of the objectors to hold possession as alleged by the objectors? OP Objectors. 4. Is the decree-holder not entitled to actual possession and is entitled to merely a symbolic possession from objectors? OP Objectors. 5. Relief. 16. learned Counsel for the decree-holder stated that let the allegations of the objectors be taken as correct for the purpose of deciding these issues, that then those issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dismissed in 1954. It was held that after the passing of the decree in 1951, the possession of the widow could only be that of a trespasser and that she could not create any right in the land in favour of anybody. Similarly, in the present case, Brig. Bhawani Shanker who had no right whatsoever in the property in dispute, could not create any tenancy in favour of any of the objectors. 22. The learned Counsel for the objectors submitted that Brig. Bhawani Shanker was recognised as a lessee of the Govt. of India under Section 3 of the Government Grants Act, 1895 and that, therefore, he was fully competent to create tenancy in the premises. He added that in any case he was a landlord within the meaning of Section 2(e) of the Delhi Rent Control Act and that, for being a landlord, it was not necessary that a person should be owner. He in this respect placed reliance on a judgment of the Supreme Court in Dr. H.S. Rikhi v. New Delhi Municipal Committee AIR 1962 SC 554. 23. However, the aforesaid argument is not tenable. It was never alleged in the objections that Brig. Bhawani Shanker was recognised as a lessee under Section 3 of the Government Grants Act. Therefore, such con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joginder Singh Bedi v. Sardar Singh Narang ILR (1984) 2 Delhi 43: AIR 1984 NOC 319), a Division Bench of this Court held that sale of property to a third party during the pendency of a suit for specific performance of an agreement to sell is not binding on the Plaintiff in that suit in view of Section 52 of the Transfer of Property Act. 27. The learned Counsel for the objectors contended that when the suit was instituted on January 3, 1962, the provisions of the Transfer of Property Act were not extended to the Union Territory of Delhi, that it was from December 1, 1962 that those provisions came into force in the said Union Territory by means of a notification dated November 17, 1962 and that, therefore, the provisions of the said Act could not affect the substantive rights of the judgment debtor to create valid tenancies at any time, even during the pendency of the suit. The learned Counsel contended that when the provisions of Section 52 of the Transfer of Property Act were not applicable, the tenancies in favour of the objectors could be validly created and the same were binding on the decree-holder. In support of his contention to the effect that it was law prevailing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Transfer of Property Act, the objectors after the decree in favour of decree-holder became statutory tenants under the decree-holder and thus they cannot be dispossessed. The learned Counsel relied upon judgments in Mt. Aziz Fatma v. Mukund Lal AIR 1932 All 480, reasoning of minority decision in Anand Nivas Private Ltd. v. Anandji Kalvanji's Pedhi AIR 1965 SC 414 and in Smt. Safali Roy Chowdhary v. A.K. Dutta AIR 1976 SC 1810. This matter is being dealt with while dealing with issue No. 3. Briefly speaking none of the authorities is applicable to the facts of this case and are in respect of law not applicable to Delhi. AIR 1932 All 480 was in respect of Agfa Tenancy Act AIR 1965 SC 414 was on Bombay Rents, Hotel and Lodging House Rates Control Act (No. 57 of 1947) and AIR 1976 SC 1810 was on Section 16(3) of West Bengal Premises Tenancy Act. 30. Even if it is taken for granted that the provisions of Section 52 of the Transfer of Property Act were not applicable as such, the principles contained in it were applicable. It is well established that wherever Transfer of Property Act is not applicable, such principles in the provisions of the said Act, which are base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench of the Lahore High Court held that although the Transfer of Property Act was not in force in Punjab, the principles underlying the provisions including Section 52 were applicable to the said province. learned Counsel for the objectors contended that the aforesaid authority merely applied to preemption cases and was not applicable to the grant of leases or creation of tenancy. But that is obviously wrong. It was clearly laid down that principles underlying the provisions of Section 52 of the Transfer of Property Act were applicable where provisions of such Act were not in force. 33. In Milkha Singh v. Mst. Shankari AIR 1947 Lah 1 (FB), it was held that even though Transfer of Property Act was not in force in Punjab, the principles underlying the provisions of Section 53-A of the said Act were applicable. 34. In Mela Ram Sons v. Firm Ram Das Joshi and Sons AIR 1942 Lah 275 it was held that the principles underlying under Section 55 of the Transfer of Property Act were applicable even though the said Act as such was not in force in the province of Punjab. 35. In Mt. Shankari v. Milkha Singh AIR 1941 Lah 407 (FB), it was held that although Transfer of Property Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenancy rights of the objectors but on the other hand accepted and admitted the objectors as tenants and that is why called upon them not to deliver possession to Brig. Bhawani Shanker. The learned Counsel also contended that by way of approaching the Supreme Court for issue of an injunction, the decree-holder wanted to perpetuate the possession of the objectors as tenants which meant that he accepted the objectors as his tenants. The learned Counsel continued that in that way the decree-holder had waived his right to claim physical possession and was also estopped from challenging the right of the objectors to hold possession. He concluded that on account of acceptance of the objectors as tenants, the objectors had become tenants under the decree-holder and were not liable to be dispossessed. 41. In connection with the aforesaid arguments, the learned Counsel relied upon a number of authorities. In Sen Co. v. Sm. Mani Mala Sadhu AIR 1980 Cal 155, it was held that a landlord who had received rent without objection had waived his right of striking out of written statement of tenant under Section 17(3) of West Bengal Premises Tenancy Act, 1956. In Mst. Jagaribai v. Ramkhilaw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missory Estoppel was enunciated and it was stated as to what constituted a waiver. 43. In Kai Khushroo Benonjee Capadia v. Bai Jerbai Hirjibhoy Warden AIR 1949 FC 124, it was held that when a landlord accepted rent from a sub-tenant, the latter became a tenant. 44. Neither the letter dated 23rd February, 1983 nor the application of the decree-holder filed in the Supreme Court constitutes any acceptance of the objectors as tenants. The letter does not say that the decree-holder was accepting the objectors as tenants. The letter and especially the portion relied upon by the learned Counsel for the objectors clearly indicates that the decree-holder was not recognising the objectors as tenants and that is why he was emphasising that they should hand over the possession to him rather than to Brig. Bhawani Shanker. Had the decree-holder recognised the objectors as tenants, he would have called upon them to go on living in the premises and would not have demanded possession of the same as and when called upon to do so. Subsequently that letter was also withdrawn and the objectors themselves have placed on record a copy of letter dated March 21, 1983 which shows the withdrawal of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enancy became a statutory tenant under the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947). In Manujendra Dutt v. Purendu Prosad Roy Chowdhury (1967) I SCR 475 AIR 1967 SC 1419 following (at pages 482-483) (of SCR) : (at pp. 1423-24 of AIR) was held by the Supreme Court: To summarise the position: The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary imposes certain restrictions on his right to evict a tenant under the general law or under the contract of lease. The Thika Act like other Rent Acts enacted in various States imposes certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except specified grounds set out in Section 3. The right of the Appellant therefore to have a notice as provided for by the proviso to Clause 7 of the Lease was not in any manner affected by Section 3 of the Thika Act. The effect of the non obstinate clause was that even where a landlord has duly terminated the contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a decree for eviction provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not bound by the decree and that, therefore, they were not liable to be dispossessed. 52. But the aforesaid argument clearly has no force. The objectors are not holding any right independently of the judgment-debtors. It is true that they are trespassers because they derive interest through a trespasser, namely, Brig. Bhawani Shanker. But we must not forget that Brig. Bhawani Shanker is also a judgment-debtor and the sale deed in favour of the decree-holder was executed on his behalf also by the Registrar of this Court. Therefore, the objectors who derive their rights from Brig. Bhawani Shanker are bound by the decree and they are also liable to be dispossessed in the same manner in which Brig. Bhawani Shanker is liable to be dispossessed. 53. As already held, the decree-holder never consented to objectors remaining in possession in the letter dated February 23, 1983 or application filed before the Supreme Court. He merely called upon the objectors not to deliver possession to Brig. Bhawani Shanker and rather they should give possession to him. 54. Issue is, therefore, decided accordingly in favour of the decree-holder. Issue No. 4. 55. The sum and substance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid authorities covered both the grounds, that in the present case the decree-holder was neither entitled to recovery of possession in execution of the decree nor he was entitled to even amendment of the plaint with a view to include a prayer for recovery of possession and that, therefore, the decree-holder is entitled only to symbolic possession as against the objectors. 57. The arguments of the learned Counsel for the objectors have no force and the authorities relied upon by him are no longer good law in view of the Supreme Court judgment in Babu Lal v. Hazari Lal Kishori Lal AIR 1982 SC 818. In that case, the owner of an immovable property after executing an agreement to sell in favour of one person, sold the property to others. The person, in whose favour there was an agreement to sell, brought a suit and obtained a decree for specific performance which did not contain any direction of delivery of possession. The High Court held that not only that that person was entitled to possession from the original owners but also from the transferees. The Supreme Court upheld that view. In that case, the effect of Section 22 of the Specific Relief Act, 1963 was considered and it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. The provisions of Section 55 are based on principles of equity, justice and good conscience inasmuch as it is equitable and just that when a person pays the price of an immovable property, he is entitled to possession of the said property. It will be most unjust if price is received (sic) by the buyer but the possession is not given to him. Secondly, the Supreme Court considered the legal position independently of Section 55 of the Transfer of Property Act and came to the same conclusion. 61. Even otherwise the authorities relied upon by the learned Counsel have no application in the present case. In the case before the Calcutta High Court after execution of the sale deed, the application for execution of the decree was held to be fully satisfied . That is not so in the present case. Execution No. 27 of 1980, which was the original application for execution of the decree, remained and was pending when the application for delivery of possession was made on February 4, 1985. 62. For the foregoing reasons I decide the issue in favour of the decree-holder and hold that he is entitled to physical possession of the entire property in question. Issue No. 5. 63. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered. 66. The learned Counsel for the judgment, debtors contended that according to the aforesaid provisions it was obligatory that the judgment-debtors; should have an opportunity to execute the sale deed, that if they failed to do the needful within a time to be fixed by the court, a draft of the sale deed should have been prepared by the decree-holder, objections of the objectors should have been invited, that that was never done and that, therefore, she execution of the sale deed being not in accordance with the procedure laid down by law was a nullity and not binding on the judgment-debtors as well as the objectors. 67. I, however, do not agree with the Learned Counsel. Firstly, everything was done in accordance with the decree. The decree (operative portion of the judgment has been reproduced in paragraph 5 above) gave time of two months to the judgment-debtors to execute a sale deed in favour of the decree-holder and it was provided that on the expiry of those two months, the Registrar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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