Chandgi Ram and Another vs Bagirath and Another

A.S. Nehra, J.—This appeal is directed against the judgment and decree dated 5-9-1990 passed by the Additional Disctrict Judge, Bhiwani, by which the appeal filed by the defendants-appellants was dismissed and the judgment and decree dated 18-1-1989 passed by the Additional Senior Sub Judge, Bhiwani (decreeing the suit filed by the plaintiff-respondents) was upheld.

The facts giving rise to the present appeal are that Bhagirath and Roshan Lal (sons of Smt. Girdawari daughter of Achhi widow of Chimna son of Parsada), resident of village Devrala, Tehsil and District Bhiwani, filed a suit for possession of one-half share out of the total land measuring 139 Kanlas 4 Marlas, fully detailed in the plaint. The plaintiffs-respondents averred that they are owners of the suit land qua one-half share; that on 18-7-1985 the plaintiffs-respondents entered into an agreement with the defendants-appellants to alienate their share in the land, in dispute, for a sum of Rs. 96,000/-; that, on the day of execution of the agreement-deed, a sum of Rs. 35,000/- as earnest money was paid; that the sale deed was to be executed on or before 15-11-1985 and the possession of the land was delivered to the defendants-appellants on 18-7-1985 as per the terms of the agreement; that it was also agreed that on the failure of the defendants-appellants to perform their part of the contract, the earnest money of Rs. 35,000/- would be forfeited and the plaintiffs-respondents would be entitled to recover Rs. 35,000/- more and that, ultimately, the defendants-appellants failed to perform their part of the contract and, therefore, the plaintiff-respondents filed the present suit.

The defendants-appellants contested the suit and raised certain preliminary objections that the plaintiffs-respondents have no locus standi to file this suit; that the suit has not been properly valued for the purposes of Court fee and jurisdiction; the the suit is bad for non-joinder of necessary parties; that the suit is not maintainble in the present form; and that the plain-tiffs-respondnets have not come in Court with clean hands. However, it was admitted that, prior to the execution of the agreement to sell, the plaintiffs-respondnets were the owners of the land, in dispute. It was specifically alleged that the defendants-appellants were in possession of of execution of the agreement-deed, that, since the sale-deed could not be executed due to the fault of the plaintiffs-respondnets, so the defendants-appellants remained in possession of the suit land as tenants; and that, accordingly, the suit is liable to be dismissed.

On the pleading of the parties, the following issues were framed: -

(1) Whether the plaintiffs are owners of the land, in dispute, and the sale-deed, in dispute, could not be executed due to the faults of defendants? If so, to what effect ?

(2) Whether the defendants are in possession of the land, in dispute, as tenants?

(3) Whether the suit is not maintainable in the present form ?

(4) Whether the suit is bad for non-joinder of necessary parties?

(5) Whether the defendants are entitled to special Compensatory costs u/s 35A Code of Civil Procedure?

(6) Relief.

The trial Court recorded oral and documentary evidence and preferred to take up issues Nos. 1 and 2 together issue Nos. 1 and 2 were decided in favour of the plaintiffs-appellants and, similarly, issue Nos. 4 and 5 were also decided against the defendants-appellants. The suit filed by the plaintiffs-respondents was decreed by the trial Court.

It is not at all disputed between the parties that originally the land, in question belonged to Chimna son of Parsada. After the death of Chimna it came in the hands of Smt. Anchi widow of Chimna and from Anchi it came to Smt. Girdawari and then to Bhagirath and Roshan Lal. As per Jamabandi entries for the year 1983-84, Smt. Anchi widow of Chimna son of Parsada was owner in possession of one half share out of land measuring 72 Kanals 8 Marlas. Inhale son of Khubi was in cultivating possession of the land in dispute, as a co-sharer, and these entries figure in Exhibit D-2, while Khewat No. 294, Khatauni No. 401 used to be cultivated by Chandgi as a gair maurusi. When Anchi died, her property was inherited by Gidawar and mutation to this effect is Exhibit D-3. As per Exhibit D-4, Nihala also started cultivating the land, in dispute, which he used to cultivate as a co-sharer, but on payment of lagan of Rs. 60/- per year as per entries of Khasra Girdwari from 1980 to 1983, copy of the same is Exhibit D-4. Thus, from the above documents, it has become clear that when agreement to sell. the land was executed on 18-7-1985, Chandgi and Nihala were in cultivating possession of the suit land as tenants.

Mr. R.A. Sheoran, learned counsel for the appellants, has argued that the learned lower Courts have erred in law in holding that, as soon as the appellants had entered into an agreement with the owners to purchase the suit land, they had surrendered their rights as tenants. He has further submitted that the judgment of this Court reported as Chahanka Ram v. Rehman,1 1973 P.L.J. 641 is not applicable to the facts of the present case and it is distinguishable. The learned counsel for the appellants further submitted that as mere agreements to sell does not confer title on the appellants, the appellants have not surrendered their tenancy rights in the suit land and that, in the agreement Exhibit P-3, it is mentioned that the possession shall be delivered at the time of the registration of the sale-deed. He has further submitted that as PW-1 Bhagirath and PW-4 Sajjan Kumar have admitted that the possession of the suit land was with the appellants before the agreement was executed therefore, the suit filed by the plaintiffs-respondnets for possession is not maintainable and the same is liable to be dismissed. In support of this agrument, the learned counsel for the appellants has relied upon Banshilal Vs. Noor Mohammad, ; Bhagwandas Parsadilal Vs. Surajmal and Another, ; and Sardari Lal v. Ram Lal and Anr.,4, L.P.A. No. 221 of 1961 decided on 26-12-1961.

In Banshilal''s case (supra), it has been held as under-

"It is, however, amply clear that merely by execution of the agreement to sell the property, in question, the interest of the lessor Banshilal did not become vested in the lessee Noor Mohammad and by no stretch of imagination it can be said that on execution of the ageement, Exhibit A-l, the rights of the lessor came to an end. it is too well known that by mere execution of an agreement to sell, there is no transfer of interest in the property."

In Bhagwandas Parsadilal''s case (supra), it has been held as under: -

"As the defendant had been in possession throughout in his capacity as a tenant and not in part performance of the contract, he could not be heard to say that, by reason of the agreement to sell, his possession was no longer that of a tenant. If he succeeded in his suit for specific performance of the contract, the plaintiff will, by virtue of section 91, Trusts Act, be deemed to be in possession of the property in trust for the defendant. But, till he succeeded in that suit, he could not enforce the equities in his favour as against the plaintiff in the ejectment suit."

In Sardari Lal''s case (supra), it has been held by a Division Bench of this Court as under:-

"That if the parties to the mortgage intended that the tenancy should be finally terminated by the mortgagee and that the owner would be entitled to immediate possession on the redemption of the mortgage, this would have been bound to be spcified in the mortgage contract and thereunder would in the agreement have been an express surrender by the mortgagee of the rights secured by him as a tenant under the Act. In the absence of any such specific provision in the contract of mortgage, I am of the opinion that the tenant did not surrender his rights, and that the intention of the parties to the mortgage must be interpreted as being that on the redemption of mortgage by the landlord, the tenant would still retain his rights as a tenant."

Mr. Mani Ram, learned counsel forthe respondents, has relied upon a Single Bench judgment of this Court in Chhanka Ram v. Rehman,1 1973 P.L.J. 641 in which it was held as under: -

"Although the mere agreement did not clothe the tenants R and S with rights of ownership in the land, they from the date thereof hold the property as "prospective vendees" and not in any capacity in which they held it earlier unless the continuance of the tenancy was envisaged expressly in the agreement itself. After the execution of the agreement, the possession of the tenants R & S would be referable to the terms thereof and not to any earlier relationship between the parties. The tenants R and S were in possession of the land before the agreement was executed as tenants under the landlord C. After the agreement, they continued in possession but the agreement did not provide, either expressly or by necessary implication that till the sale-deed was executed and registered, the tenants R and S shall continue to hold the land as tenants. In these circumstances, the landlord C is barred from enforcing against the tenants R and S any right arising from the earlier tenancy which was not expressly kept intact. The tenancy was superseded by the agreement after the date whereof it ceased to be operative so that revenue authorities have no jurisdictionto entertain any proceedings initiated by the landlord C for the recovery of any rent from the tenants R and S.

After hearing the learned Counsel for the parties, I am of the opinion that Chhanka Ram''s case (supra)is not applicable to the facts of the present case. In the present case, it has been specifically mentioned that the possession will be delivered to the appellants after the registration of the sale-deed. In the agreement to sell, Exhibit P-3, the appellants have not surrendered their tenancy rights.

The transferor or any person claiming under him shall be debarred from enforcing against the transferee or any person claiming under him, any right in respect of the property of which the transferee has taken or continued in possession, other than the right expressely provided by the terms of the contract. After the agreement, the appellants continued in possession. Clause (5) of the agreement, it has been specifically mentioned that the appellants will be given possession after the registration of the sale-deed in their favour.

In view of the above mentioned discussion, I hold that Chhanka Ram''s case (supra) is not applicable to the facts of the present case. The appeal is, therefore, allowed, the judgments and decrees passed by the Additional District Judge, Bhiwani, and the Additional Senior Sub-Judge Bhiwani, are set aside and the suit filed by the plaintiffs-respondnets is dismissed. No costs.