JUDGMENT
Prakash Tatia, J.
1. The appellant is aggrieved against the judgment and decree passed by the Additional Civil Judge (J.D.) No. 2, Jodhpur in Civil Original Case Case No. 546/1987 dated 19.7.2001 and against the judgment and decree dated 10.2.2004 affirming the judgment and decree of the trial Court passed by the Court of Additional District Judge No. 3, Jodhpur in Civil Appeal (Decree) No. 23/2001. The trial Court passed the decree for eviction against the appellant-tenant on the ground of personal bonafide necessity of the land-lord plaintiff-Labh Chand (now deceased). The appeal of the tenant-appellant was dismissed by the appellate Court and hence this second appeal.
2. According to the learned Counsel for the appellant, the appellant took on rent certain properties from Thakur Vikram Singh. Thereafter, in the year 1980, i.e. on 14.7.1980 executed a fresh lease-deed in favour of Thakur Vikram Singh’s daughter Miss Urvashi, who was minor in the year, 1980, therefore, the deed was executed through Miss Urvashi’s natural guardian her mother Smt. Shobha Rani. The learned Counsel for the appellant submitted that the appellant defendant agreed to purchase the remaining rented premises from said Miss Urvashi through her natural guardian Smt. Shobha Rani by entering into an agreement on 13.5.1984 for a consideration of Rs. 10,000/- and paid Rs. 2,000/- as advance. Smt. Shobha Rani, on behalf of Miss Urvashi, executed a sale-deed on requisite stamps on 22.5.1984. In this sale-deed dated 22.5.1984, it was clearly mentioned that relationship between landlord Urvashi and the tenant-appellant come to an end and the appellant is now in possession of the rented premises as owner of the property. After signing the sale-deed on 22.5.1984, the vendor Smt. Shobha Rani, guardian of Miss Urvashi, did not turn up for registration of the document then the appellant-tenant immediately on the next day only, i.e. 23.5.1984, gave telegraphic notice to Smt. Shobha Rani for execution of the saledeed. Instead of executing sale-deed for the property in question in favour of the tenant, Shobha Rani, on behalf of Urvashi, got the sale-deed registered on 24.5.1984 in favour of the plaintiffs. According to the learned Counsel for the appellant, this deed was ante-dated and has been shown as executed on 19.5.1984. The appellant-tenant, therefore, filed suit (CO. No. 42/1985) for specific performance of the contract on 1.6.1985 and also lodged criminal complaint against Shobha Rani, which was sent for investigation to the concerned police station and according to the tenant-appellant, cognizance was taken by the Court for the offences committed by Shobha Rani.
3. The plaintiffs when obtained the sale-deed in their favour through Shobha Rani on behalf of Urvashi which was registered on 24.8.1984, filed the suit for eviction against the appellant-tenant on 30.9.1985 in the trial Court for eviction of the appellant-tenant on the ground of default and personal bonafide necessity of suit property for the landlord. The suit was contested by the appellant-tenant by filing detail written statement. It appears from the record that the plaintiffs sought stay of the present eviction suit under Section 10 C.P.C. on the ground of pendency of earlier filed suit No. 42/1985) filed by defendant for specific performance of contract dated 13.5.1984 but the proceedings of present suit No. 190/85 (New No. 546/1987) was not stayed by the trial Court vide order dated 17.5.1988 and the tenant-appellant preferred S.B. Civil Revision Petition No. 384/88 to challenge said order dated 17.5.1988 which was dismissed by this Court vide order dated 4.5.1989.
4. In the Court below, both the parties led their evidence on the issues framed by the trial Court which includes specific issue whether the defendant is tenant of the plaintiffs and whether the suit premises is required by the plaintiffs for their personal and their family need reasonably and bonafidely. A specific issue was framed on the plea taken by the defendant that the seller (who sold the property to the plaintiffs subsequent to signing sale deed in favour of defendant) terminated the lease of the defendant-tenant specifically in the sale-deed (which was not registered) executed in favour of the defendants and if it is so then what is the effect of it on the suit. Both the Courts below held the defendant to be the tenant of the plaintiffs as the plaintiffs became owner of the rented property by virtue of saledeed executed in favour of the plaintiffs by defendant-tenant’s previous land-lord and owner of the property. The trial Court, while deciding issue no,5, about the effect of the alleged unregistered sale-deed in favour of the defendant, held that since the sale-deed (Ex. 4) in favour of defendant is unregistered document, therefore, it has not created any right, title and interest in the defendant nor it has resulted into end of the relationship of the landlord and tenant between the tenant and his earlier landlord. The trial Court granted decree for eviction of appellant-tenant on 19.5.2001 and the appellate Court upheld the decree.
5. The first appellate Court observed that from the alleged unregistered sale-deed Ex. A. 1, (on the basis of which suit for specific performance of the contract for purchase of the property in dispute was filed by the appellant tenant) alleged to have been executed in favour of the defendant, there appears that date 22.5.1984 was inserted subsequently. The appellate Court also held that Ex. A. 1-sale-deed in favour of the defendant is suspicious and the defendant’s own witness, the vendor of the property who sold the property to the plaintiffs, clearly stated that she sold the property to the plaintiffs by registered saledeed. The appellate Court also rejected the defendant’s contention that by deed Ex. A. 1, the relationship of the landlord and tenant between the defendant-tenant and his previous landlord came to an end. For this, the appellate Court held that the terms of deed could have been effective only after registration of the said deed. Further, the appellate Court observed that if there was any intention of the parties to terminate the tenancy forthwith then there was no reason for writing in the deed itself that the defendant is in occupation of the property as tenant. The appellate Court also considered the arguments of the parties on the question of personal bonafide necessity and thereafter rejected the defendant’s all defences and upheld the decree for eviction of the defendant by impugned judgment and decree dated 10.2.2004.
6. The present appeal was preferred by the defendant-tenant before this Court on 17.5.2004 but without impleading one of the co-plaintiff. However, the appeal was registered and it remained pending for various reasons and one of the reasons appears to be pendency of tenant’s suit for specific performance of the contract which was now dismissed by the trial Court on 22.10.2007 and according to the learned Counsel for the tenant-appellant, the tenant-appellant has preferred appeal to challenge the judgment and decree dated 22.10.2007.
7. The appeal was argued by the learned Counsel for the appellant in detail. The learned Counsel for the respondents-landlord raised objection about the maintainability of the appeal on the ground of non-joinder of necessary party, i.e. one of the co-plaintiff in whose favour the decree for eviction was passed by the trial Court and upheld by the appellate Court. After arguments of the learned Counsel for the respondents on merits also, the appellant submitted an application under Order 1 Rule 10 C.P.C. for impleading the said left out plaintiff in this appeal. It is stated that the plaintiff No. 2 was inadvertently not impleaded as party in this appeal and the mistake is bonafide mistake. The appellant prayed that now the name of plaintiff No. 2 may be permitted to be mentioned in the appeal as respondent No. 2. The appellant also submitted an application under Order 41 Rule 27.CP.C. after completion of his arguments on merits of appeal and sought permission to produce the copy of the telegram dated 23.5.1984, which according to the plaintiffs, was sent to above Smt. Shobha Rani by defendant-tenant through his advocate when Smt. Shobha Rani did not turn up for registration of saledeed in favour of defendant-appellant. By this telegram, the appellant-tenant informed Shobha Rani that she should reach to the office of Sub-Registrar at 11 a.m. (on 24.5.1984), otherwise the sale-deed will be presented for its registration before the Sub-Registrar obviously by the purchaser appellant-tenant.
8. The learned Counsel for the respondents landlord vehemently submitted that both the applications deserves to be dismissed because of the reason that none of the application discloses any reason for not filing the such important document in time and there is no explanation for not impleading plaintiff No. 2 as party in this appeal. It is also submitted that by this time, the appeal against the respondent-plaintiff-landlord Subh Kanwar has already become barred by time as per Order 41 Rule 20, C.P.C. It is also submitted that there is no reason given that why Subh Kanwar was not impleaded as party in the appeal when she was party throughout the litigation and this fact was in the knowledge of the appellant-defendant. So far as photo-stat copy of the telegram is concerned, for its production, virtually no reason, why this was not produced in the last more than 20 years of litigation, apart from the fact that there exists no reason for not submitting the document in the trial Court and before the first appellate Court and in this second appeal along with the second appeal when the appellant-tenant was knowing well the importance of the documents if it was in existence.
9. I considered the submissions of the learned Counsel for the parties and perused the record. It will be appropriate to first look into factual aspect of the case in hand so that application of law laid down in the judgments which were relied upon by the learned Counsel for the appellant can be judged.
10. First of all I would like to proceed with the arguments raised by the learned v counsel for the appellant, irrespective of the fact whether relevant facts are pleaded in the written statement and irrespective of the fact whether the arguments which have been advanced before this Court as such were raised or not before the two Courts below. The best of the best case of the appellant is that he entered into agreement to purchase the property in question with his landlord and for that purpose, even a sale-deed was duly executed by the vendor after taking Rs. 2000/- as advance from the appellant. The vendor landlord did not turn up for registration of document, therefore, the saledeed was not registered in favour of the appellant-tenant. It is not the case of the appellant-tenant that he acquired title to the property by unregistered sale-deed as he is seeking title by filing suit for specific performance of contract on the basis of said unregistered sale-deed. The argument of the learned Counsel for the appellant is two folds, (1) that by deed Ex. A. 1, the unregistered sale-deed, the tenancy of the appellant-tenant has come to an end and, therefore, the plaintiffs who may have stepped in the shoes of the appellant’s landlord by purchase of the property by registered sale-deed, cannot evict the appellant-tenant from the property in dispute treating the appellant his tenant. Meaning thereby, there exists no relationship of the landlord and the tenant between either Shobha Rani, Urvashi or their successor in interest in property, the plaintiffs, with the appellant-tenant. Another contention of the learned Counsel for the appellant is that the appellant’s possession in the suit property is in part performance of the contract for sale because of the reason that the unregistered sale-deed can be considered to be agreement for sale of the property. And even the appellant’s possession may be as of trespasser after the end of the relationship of landlord and tenant between plaintiffs’ predecessors and the appellant-defendant, therefore, the suit for possession on the basis of title alone could have been maintainable but not on the basis of contractual relationship of tenancy. The learned Counsel for the appellant for this purpose, relied upon the judgment of the Hon’ble Supreme Court delivered in the case of R. Kanthimathi and Ors. v. Mrs. Beatrice Xavier 2001 AIR SCW 2369 and the earlier judgment of the Hon’ble Supreme Court delivered in the case of Arjunlal Bhatt Mall Gothani and Ors. v. Girish Chandra Dutta and Anr. . The learned Counsel for the appellant further relied upon the judgment of the Hon’ble Supreme Court delivered in the case of M.T. Narayanagowda v. Smt. Machamma 2005 All India High Courts Cases 4405.
11. It will be appropriate to recapitulate that the suit for eviction of the tenant can be filed after determination of the tenancy in accordance with law as per the provisions of the Transfer of Property Act where the provisions of the Rent Control Act are not applicable and in case where provisions of State Rent Control Act are applicable then suit for eviction of the tenant can be filed on the grounds as provided by the provisions of the State Rent Control Act. In State of Rajasthan, the State Rent Act, i.e. Rajasthan Premises (Control of Rent and Eviction Act), 1950 was in force at relevant time, therefore, the tenant could not have been evicted merely because of end of contractual tenancy or mere termination of tenancy. Therefore, without going into the factual aspect of the matter, admitting for the sake of arguments that by the deed Ex. A. 1, the unregistered sale-deed, the relationship of landlord and tenant had came to an end then the provisions of Section 3(VII) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short ‘the Act of 1950’), determines the status of such tenant. The definition of tenant as given in Sub-clause VII of Section 3 clearly provides that the tenant will remain tenant even after termination of tenancy and till decree for eviction is passed against him. Therefore, after determination of tenancy, or after end of the relationship of the landlord and tenant, the tenant continues to be tenant by virtue of the operation of the law, i.e., by Section 3(VH) of the Act of 1950.
12. Above legal position is also in consonance with the Clause (a) of B part of Section 108 of the Transfer of Property Act, which specifically provides that the tenant is bound to deliver the possession of the rented premises to the landlord. Meaning thereby, the landlord is entitled to recover the possession from the tenant after expiry of the period of tenancy or after determination of the tenancy by filing the suit treating the person in possession to be tenant for the purpose of getting the delivery of said immovable property without filing suit on the basis of his title and can claim possession of the leased property from tenant on the basis of contractual as well as statutory obligation of tenant and corresponding vesting of right in the landlord to take possession from the sub-tenant. In view of both laws, governing the relationship and rights and liabilities of the landlord and tenant, the tenant who continues in possession of such rented property cannot be termed to be a trespasser in the property after determination of tenancy or after end of the term of the tenancy or with the end of the tenancy. Therefore, there is no force in the submission of the learned Counsel for the appellant that his status, after determination of the tenancy by mutual agreement as written in unregistered sale-deed dated 25.5.1984 and in view of Section 11 IE, the tenant’s status became as of trespasser and he could have been evicted only by filing suit for possession by the landlord as owner of the property and on the basis of his title and could not have instituted the suit for possession as landlord and recovery of the suit property on the basis of original relation of the landlord and the tenant. The termination of lease or determination of lease or even end of relations of landlord and tenant gives cause for demanding the possession back to the landlord which may come to an end or may be satisfied by redelivery of possession to landlord and till possession is redelivered or remedy to take possession becomes barred by law, the tenant is not trespasser.
13. The another contention of the learned Counsel for the appellant is that his possession after the execution of the unregistered sale-deed Ex. A. 1, his possession is in part performance of the contract and, therefore, the vendor or his successor-in-interest, cannot evict the appellant-tenant-defendant from the suit premises. The argument advanced by the learned Counsel for the appellant is devoid of any force. The unregistered sale-deed may be treated to be agreement to sell as per proviso to Section 49 of the Registration Act, 1908 but in a suit for specific performance of contract and for the purpose of Section 53A of the Transfer of Property Act, 1882. Ingredient of Section 53A for invoking the principle of part performance of the contract requires prospective byers to do some act in furtherance to the agreement to sell. The buyer is required to fulfill the condition of Section 53A of the. Act of 1882 which includes 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”. In this case, as per the appellant himself, there was an agreement to sell between Urvashi through Shobha Rani and the appellant which was entered into on 13.5.1984. This agreement is oral and not in writing. Therefore, on the basis of this oral agreement, the plea of in possession in part performance of contract cannot be raised. Under this agreement dated 13.5.1984 and at the time of execution of the agreement dated 13.5.1984, the possession of the suit property was not delivered to the appellant-tenant in pursuance of the said agreement and the appellant’s own case is that his tenancy continued upto the execution of the sale-deed dated 22.5.1984. There is no mention in the sale-deed dated 25.5.1984 about agreement dated 13.5.1984. Under the unregistered sale-deed 22.5.1984, the appellant did not do any act in furtherance to the said sale-deed which required payment of the sale consideration to the vendor. The learned Counsel for the appellant could not explain what act was done by the appellant-tenant in furtherance to the agreement of sale dated 22.5.1984 (in fact unregistered sale-deed). The learned Counsel for the appellant only says that the appellant gave telegraphic notice to the vendor on 23.5.1984 and that may be treated to be act in furtherance to the agreement to sell. The argument is devoid of any force because of the simple reason that in furtherance of the contract and acting under the agreement for sale, is only performance of the some act which is required to be done by the term of the agreement or connected to term of contract but cannot be an act demanding from other party to the contract for taking money and executing the sale-deed itself under apprehension that the vendor will deny or vendor has denied performance of his part of the contract. Such demand by notice may be an act of showing willingness of seller to perform his part of the contract which is further requirement of Section 53A of the Transfer of Property Act, 1882 as is required separately in third part of Section 53A which provides that “and the transferee has performed or is willing to perform his part of the contract. Therefore, the contention of the learned Counsel for the appellant that appellant-defendant’s possession may be accepted as possession of prospective purchaser in part performance of the contract, and he did some act in furtherance of the contract, is liable to be rejected.
14. Now we look into the pleadings, then it will be relevant to mention here that in the written statement, there is no reference of the alleged agreement dated 13.5.1984 in furtherance of which the appellant-tenant-defendant stated that the sale-deed was executed on 22.5.1984. Not only this, there is no reference of agreement to sell dated 13.5.1984 in the unregistered sale-deed dated 22.5.1984. The copy of the agreement dated 13.5.1984 was also not produced, if it was a written agreement. The appellant’s contention that he gave telegraphic notice to the vendor but copy of that telegram was not produced in Court in last 20 years; either in the trial Court or in the first appellate Court nor along with the present second appeal. The copy of the telegram dated 23.5.1984 has been produced after more than 20 years that too in second appeal and further more, after arguing the appeal on merit with the application under Order 41 Rule 27.C.P.C. and without disclosing any reason for not submitting the evidence in last 20 years.
15. At this juncture, it will be appropriate to consider the application of the appellant filed under Order 41 Rule 27, C.P.C. In the application, it is stated by the appellant that the first appellate Court observed that in the unregistered saledeed dated 22.5.1984, the dated 22.5.1984 was subsequently inserted. To challenge this finding, the appellant wants to produce the copy of the telegraphic notice dated 23.5.1984 which will prove that in fact agreement took place before 22.5.1984 and the writing of date 22.5.1984 in sale-deed by hand is not material. It is also submitted that copy of the said telegraphic notice dated 23.5.1984 was already submitted in the appellant’s tenant’s original case No. 190/1985(new Nos.546/1987 and 444/95) which was filed for specific performance of the contract on the basis of unregistered sale-deed dated 22.5.1984. As is clear from the facts mentioned above itself that in the written statement filed by the plaintiffs, after his filing the suit for specific performance of the contract, there is no mention in the written statement of giving of telegraphic notice by the appellant-tenant to the vendor. Admittedly, the appellant was in possession of the copy of the notice before filing the present suit on 30.9.1985. No reason has been given by the appellant for not filing the copy of the telegraphic notice dated 23.5.1984 for last 22 years. The first appellate Court dismissed the appeal of the appellant-defendant on 10.2.2004. There is no explanation for this delay of more than 3-1/2 years that why the appellant did not choose to submit the copy of the said telegraphic notice. The copy of telegraphic notice which has been submitted along with the application is neither attested nor certified true copy of the telegram nor is a certified copy obtained from defendant appellant’s suit filed for specific performance of contract dated 13.5.1984 and 22.5.1984. It is simple photo stat copy of one document. The application deserves to be rejected because of the reason mentioned above. Not only this, assuming for the sake of argument that the appellant-tenant might have given telegraphic notice and this is the copy of the said telegraphic notice, even as already held that giving of this telegraphic notice cannot be considered to be an act in furtherance to the contract to sell or performance of the any of the term of condition of the agreement by the appellant-tenant. Therefore, also, the plea of part performance of the contract cannot be accepted even after accepting all the facts as true as stated by the appellant.
16. Further more, if we look into the facts of the case, then it is never case of the defendant-tenant any time in his written statement as defence that he is in possession of the property in part performance of the contract and, therefore, the decree for eviction cannot be passed. The defence against eviction on the basis of principle of part performance of contract was if available to the defendant, then it should have been taken as defence to the suit for eviction because principally it is a plea based on facts giving a legal right to the person in possession to resist decree for his eviction on the basis of part performance of the contract which has serious consequence. Therefore, because of the absence of the plea of the defendant in the written statement, now he cannot be allowed to take this plea in second appeal. The defendant-appellant’s only plea before the two Courts below was that his tenancy stands terminated by execution of the unregistered sale-deed wherein there is reference of end of tenancy by mutual consent of landlord and tenant and he contested the suit only on the ground that since there is no relationship of landlord and tenant, therefore, the plaintiffs are not entitled for decree for eviction. Said plea is different than claiming defence against his eviction under Section 53-A of the Act of 1882.
17. The appellant’s contention that the relationship with previous landlord stands determined and came to an end by mutual consent as permissible of Section 11 IE is concerned it will be appropriate to consider the effect of signing of the document by the landlord. Admittedly, the document Ex. A. 1 dated 22.5.1984 was executed by clear intention of both the parties that the vendor will sale the property to the vendee and the law provides that the sale will be effective only when the sale-deed is registered. By no stretch of imagination, it can be presumed that there was intention of any of the parties to the document that with the signing of the document Ex. A. 1 the sale-deed, the tenancy of the tenant will come to an end irrespective of the fact whether title passes on to the vendor appellant-defendant.
Therefore, from the language which has been used in the sale-deed it is clear that the document was executed with clear intention of both the parties that with the passing of the title of the property in the defendant-appellant, the relationship of the landlord and tenant will come to an end. If the deed contains unambiguous and clear language then that language alone can be read and there is no need to find out the intention of the parties effecting the unambiguous language of the deed. In this case, since at one place, it has been mentioned in the deed Ex. A. 1. Dated 22.5.1984 that fd fodzsrk us dzsrk dh ;g fdjk,nkjh lekIr djds dzsrk dk cspku lqnk lky o ckM+k ij ekfydkuk okLrfod dCtk djk fn;k gS^ and, thereafter, at page 5 of the deed dated 22.5.1984, it has been mentioned that fd bl ij dzsrk cgSfl;r fdjk;snkj dkfct gS The earlier language has been interpreted by the appellant so as to convey that the tenancy has come to an end whereas subsequent to that in the same deed, it is mentioned that the appellants tenant is in possession as tenant. This Court is convinced and even by first portion referred above, the tenancy has not come to an end and that portion of language cannot be read out of context of entire document. It is normal practice that the tenancy comes to an end with the passing of the title in the tenant and when both the parties executed the sale-deed on 22.5.1984 and it was to be registered on 22.5.1984, then if it has been mentioned in the sale-deed that the relationship of tenancy between the seller and the purchaser has come to an end and the tenant has become owner of the property and he is in possession of the property as owner then that clearly means that two events to happen simultaneously and not separately so as to result into termination of tenancy alone without becoming the tenant owner of the property and tenant’s loosing his tenancy rights. There is no reasonable reason to bifurcate the language referred above in to portions, (1) end of the tenancy and (2) possession of the tenant to become as of the owner’s possession or as of trespasser’s possession. In view of the above reasons, as stated above, even if the language employed in the deed dated 22.5.1984 is considered, by this deed, the relation of the landlord and the tenant was not determined nor tenancy had came to an end nor the possession of the defendant-tenant became possession as of owner nor possession in pursuance of any agreement to sell. In view of this second portion of language quoted above, both the parties admitted continuation of the tenancy of the appellant-tenant in the suit premises till he acquires the title to the property by registration of the sale-deed. In view of the above discussion also, I do not find any force in the plea of the appellant that the appellant could not have been evicted in a suit filed under the provisions of the Rent Control Act, 1950.
18. The learned Counsel for the appellant further submitted that the first appellate Court committed serious error of fact and law in holding that the deed dated 22.5.1984 is suspicious. It will be worthwhile and very pertinent that the vendor against whom the defendant-appellant himself has filed the suit for specific performance of the contract as back as on 1.6.1985 and before that also filed a criminal complaint against the vendor, produced the said vendor as his own witness in this case, though by summoning through Court process. There is no prohibition against summoning of even rival party in witness-box as his own witness but that is normally not done and if it is done, then this practice deprecated because of the reason that the adversary can not be put in a position where he may have to disclose his defence when he is not required to do so and because of the reason that it may embarrass him and may also result into deprivation of right to cross-examine of a person who is summoning the adversary and which may result into causing serious difficulty in doing justice by the Court because of the self inflicted injury of the person summoning the adversary as his witness. In this case, though adversary defendant himself as such has not been produced as plaintiff’s witness but defendant produced his own adversary against whom he himself already lodged criminal and civil cases and that too with respect to very same transaction on the basis of which the defendant took the defence in this suit and further when he is pursuing his suit on the basis of same transaction against his said witness for the same property. Only obvious reason of this may be withdrawal of criminal case by defendant appellant which might have been reason for vendor to appear in witness box for defendant-appellant. It appears that even the plaintiffs did not question this conduct of the defendant-appellant nor the witness was cross-examined to find out under what circumstances she appeared in the witness-box as witness of the defendant-appellant-tenant.
19. It may be true that the vendor Shobha Rani could not have refused to appear to give her statement in the Court as she was summoned by the appellant-defendant through the process of Court. Be it as it may be, the learned Counsel for the respondents’ plea that before she appeared as witness of the appellant-tenant, the criminal case was withdrawn by the appellant-tenant which was filed against the witness Shobha Rani and, therefore, there may be possibility that she might have appeared as witness won-over by the appellant-defendant-tenant. The learned Counsel for the appellant vehemently contested this plea and stated that in fact his witness Shobha Rani realized the mistake and tendered apology and, therefore, the defendant-tenant withdrew criminal complaint filed against Shobha Rani. In above circumstances, the statement of witness Shobha Rani which has been relied upon by the learned Counsel for the appellant deserves to be considered cautiously and carefully. Before that it will also be worthwhile to mention here that the appellant is not very clear whether he wants to rely upon the statement of the witness Shobha Rani as a whole or wants to assail the statement of Shobha Rani because part of the statement with respect to the deed Ex. A.l dated 22.5.1984, the statement of Shobha Rani favours the appellant-tenant-defendant and part of her statement is against the appellant-defendant and part of her statement is against the appellant-defendant as she admitted her signatures on Ex. A.l dated 22.5.1984 and in cross examination, she denied the some writing written in her own handwriting. She stated that when she signed the sale-deed dated 22.5.1984, the portion X to Y, where date 22.5.1984 has been written, was blank. She also stated that hand-written language marked O to P and Q to R were not written when she signed Ex. D. 1. When plaintiff’s own witness produced by the plaintiff at his own risk, clearly admitted that the document Ex. D. 1 was materially altered without her consent, then we may look into the document Ex. D. 1. carefully so as to find out truth because it is unsafe to rely upon any part of the statement of plaintiff’s witness Shobha Rani because of the reasons mentioned above. The document Ex. D. 1, as already observed, contains no fact that it was executed in pursuance of the agreement dated 13.5.1984 as was the case of the defendant-appellant-tenant from the very beginning. The complete sale-deed upto the portion where the vendor’s natural guardian Shobha Rani’s signatures are there at the end of the typed document only date 22.5.1984 is handwritten. Over this handwritten date 22.5.1984, there is no initial of any of the parties to the documents. The portion O to P admittedly was inserted after signing of the document by the vendor’s natural guardian Shobha Rani. This was the condition of sale but over it, said Shobha Rani’s signatures are not obtained. The witness Shobha Rani denied the date 22.5.1984 in her hand-writing and also clearly stated that when she signed the document Ex. D. 1 dated 22.5.1984, the language 0 to P and Q to R were not written on the document. Therefore, it makes the document Ex. D. 1 dated 22.5.1984 quite suspicious document. This document was set up by the defendant, therefore, the Court was required to consider the nature of the document. The defendant could not have avoided its consideration because of the reason that the defendant himself set up this document, therefore, the first appellate Court was right in considering the document dated 22.5.1984 and rightly reached to the conclusion that the document is suspicious one. Though the first appellate Court gave some reasons only for holding the document suspicious but this Court finds more reason for finding the document Ex. D. 1 dated 22.5.1984 more suspicious. Therefore also, it cannot be said that by Ex. A.1 dated 22.5.1984, the relationship of tenancy was determined and the tenancy came to an end and the appellant-tenant’s possession became possession in part performance of the contract dated 22.5.1984.
20. Learned Counsel for the appellant in support of his contention that by execution of agreement to sell in favour of tenant by landlord, relationship of landlord and tenant comes to an end, relied upon the judgments of the Hon’ble Supreme Court delivered in the case of R. Kanthimathi and Ors. Mrs. Beatrice Xavier 2001 AIR SCW 2369 (supra) in which the earlier judgment of the Hon’ble Supreme Court taking the same view delivered in the case of Arjunlal Bhatt Mall Gothani v. Girish Chandra Dutta (supra) was considered and approved. The learned Counsel for the appellant also relied upon the judgment of the Karnataka High Court delivered in the case of M.T. Narayanagowda v. Smt. Machamma 2005 AIHC 4405 (supra).
21. The distinction between the facts of the case in hand and the cases referred above, is that in all other cases referred above, there was agreement to sell and not the unregistered saledeed. The unregistered sale-deed may be considered to be an agreement to sell for the purpose of seeking specific performance of the contract because of the proviso to Section 49 of the Indian Registration Act. Therefore, by virtue of that provision, the suit for specific performance of the contract, can be filed when the sale-deed itself has been executed by the vendor but because of any reason that the sale-deed has not been registered. So far as the terms of a document which requires registration but has not been registered then the terms of that unregistered document can be given effect to only when the document is got registered. Contrary to it, an agreement to sell simplicitor takes effect from the date when it is executed or from the date from which it is made executable. The terms of the agreement simplicitor bind both the parties, whereas the terms of the unregistered sale-deed can bound down the parties when the deed (which is required to be registered compulsorily), is registered. The distinction between agreement simplicitor and a deemed agreement by virtue of proviso to Section 49 of the Indian Registration Act is thin, but is a clear distinction. Apart from above, since the the deed in question on the basis of which the appellant submitted that the relation of landlord and tenant stands terminated, which was not found reliable by this Court, therefore, also it is held that by virtue of that agreement/unregistered sale-deed, the relationship of landlord and the tenant has come to an end.
22. In addition to above, the learned Counsel for the appellant vehemently submitted that the plaintiff pleaded unnecessary facts and did not plead material facts so as to constitute cause of action about his personal bonafide necessity seeking eviction of the tenant as required to be pleaded under Section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act. The learned Counsel for the appellant relied upon the judgment of the Hon’ble Supreme Court delivered in the cases of Shri H.D. Vashistha v. Glaxo Laboratories , Hasmat Rai and Anr. v. Raghunath Prasad , Duggi Veera Venkata Gopala Satyanarayana v. Sakala Veera Raghavaiah and Anr. 1987 (1) RCR 186. The learned Counsel for the appellant also submitted that if there is no pleading, no evidence with respect to said fact, can be looked into for which the plaintiff has not pleaded the facts. For this the the learned Counsel for the appellant relied upon the judgments delivered in the cases of State of Rajasthan v. Bundi Electric Supply Co., Ltd., Bundi 1970 AIR Raj. 36, Girdhar Singh and Anr. v. Anand Singh and Ors. AIR 1982 Raj. 229 and Khagendra Lall Dutta and Anr. v. Jacob Sole Jacob 1995 (3) CCC 363(SC).
23. From the facts of the case, it is clear that the tenant-appellant understood the case of the plaintiff and contested it on merits and not on the legal plea that the plaint is liable to be rejected because of lack of pleading to the extent that the pleading does not disclose cause of action. The defect in pleadings, if is curable then it is duty of the defendant to raise objection of defect in pleading at earliest possible time because of the plain and simple reason that the rule of law is not that how the cause can be frustrated even in a matter where defect can be cured or could have been cured, if the appropriate objection would have been taken in time. In view of the above, said plea of the defendant-appellant in second appeal cannot be a ground to entertain the second appeal. Otherwise also, I do not find that any prejudice has been caused to the appellant-defendant because of lack of material particulars in the pleadings and, therefore, the judgments relied upon by the learned Counsel for the appellant have no application to the facts of the case.
The appellant also assailed the finding recorded by the Courts below about personal bonafide necessity of the plaintiff for the suit premises but after going through the reasons given by the Courts below, on issue of personal bonafide necessity of the plaintiff, I do not find that the findings suffer from any error of law and I do not find that any substantial question of law is involved for this finding also.
In view of the above, the appeal of the appellant is dismissed. No order as to costs. Hence the decree shall be executable from 1st July, 2008.