JUDGMENT
V. Jagannathan, J.
1. This appeal by the defendant before the trial court in O.S. No. 8258/2003 is directed against the trial court judgment decreeing the suit filed by the respondent-plaintiff for ejectment of the appellant from the suit schedule property.
2. The facts in brief are to the effect that the respondent-plaintiff filed the suit in question seeking ejectment of the appellant herein on the ground that the plaintiff had entered into an agreement of sale with the landlord D. Purushothm and as per the said agreement dated 22.7.1983, the said landlord had agreed to sell the suit property to the plaintiff and having received part of the consideration amount, put the plaintiff in constructive possession of the suit property and directed the appellant herein to pay the monthly rent of Rs. 3,250/- to the plaintiff. The appellant did not pay the rent and therefore, an amount of Rs. 1,17,000/ -was due for three years towards rent and even after the expiry of lease period, the appellant having continued in possession and having become the tenant holding over, the plaintiff terminated the tenancy of the appellant by issuing notice under Section 106 of the Transfer of Property Act (T.P. Act for short) and further it was the case of the plaintiff that the appellant had sub-let the schedule premises and had violated the tenancy rights and therefore, the suit was filed praying for ejectment of the appellant and also for arrears of rent and damages.
3. The said suit was contested by the appellant herein by taking up the stand that there was no jural relationship between the appellant and the respondent inasmuch as the appellant continued to be the tenant under D. Purushotham the landlord with whom the respondent-plaintiff had entered into an agreement. Therefore, it was contended that the suit itself was not maintainable and the original landlord also was not made a party to the suit. It was also contended by the appellant in his written statement that even after expiry of the lease, there was another lease agreement entered into between the original landlord Purushotham and the appellant for a period of ten years and therefore, the appellant is not liable to be ejected from the suit property as there was no violation of tenancy rights and that apart, the appellant is not aware of the transaction between the respondent-plaintiff and the landlord Purushotham. As the appellant had paid the rents regularly to the original owner, the arrears of rent also did not arise. He therefore, prayed for dismissal of the suit.
4. The above pleadings led the trial court to frame the following issues:
i) Whether the plaintiff has established that the tenancy is terminated in accordance with law?
ii) Whether the plaintiff is entitled to the rent of Rs. 3,250/- p.m. for three years ending 1st of October, 2003 amounting to Rs. 1,17,000/- with respect of suit schedule property?
iii) Whether the defendant proves that he had no jural relationship as a tenant with the plaintiff with respect of the suit schedule property?
iv) To what relief or reliefs the parties are entitled?
5. Taking into consideration the evidence let in by the parties and upon hearing the learned Counsel for the parties, the trial court answered issue Nos. 1 and 2 in the affirmative and the third issue was answered in the negative and as a result, the suit of the respondent-plaintiff came to be decreed and the appellant herein was given three months time to handover the vacant possession of the schedule property to the respondent-plaintiff and also to pay the arrears of rent as claimed by the plaintiff in the suit. It is this judgment and decree of the trial court that has given rise to this appeal by the defendent.
6. I have heard the learned Counsel for the parties and carefully perused the entire material on record.
7. Learned Counsel for the appellant Sri. Dayanand Kumar submitted that the trial court erred in recording a finding that there existed a jural relationship of the landlord and the tenant between the respondent and the appellant and the entire case of the respondent rests on Ex.P-1 which is an agreement of sale and therefore, the question of the suit property being transferred to the respondent does not arise. As such, the respondent cannot derive any right under the agreement of sale Ex.P-1 to file a suit for ejectment It was also submitted that a perusal of the document produced by the parties also goes to establish that the original landlord Purushotham insisted that the rent be paid to him by the appellant and eversince 1983, the appellant has been paying the rent to the landlord Purushotham and therefore, the question of the respondent-plaintiff becoming the landlord does not arise.
8. It was submitted that when the very owner Purushotham himself had time and again written to the appellant to pay the rent to him, the plaintiff cannot be treated as the landlord by any stretch of imagination. As far as applicability of Section 53A of the T.P. Act is concerned, it was submitted that the said section has no application to the case on hand and as there was no transfer of the suit property in favour of the respondent-plaintiff and as the agreement of sale Ex.P-1 is also an unregistered document, the question of the respondent-plaintiff getting any interest or right over the suit property to eject the appellant does not arise and as the appellant was not a party to the agreement of sale Ex.P-1, the respondent cannot use the said agreement of sate against the appellant herein as if Section 53A comes to the rescue of the respondent as a sword, to evict the appellant Referring to the documents which have been marked as Exs. D-6, D-25 and D-23, it was contended that the contents of these documents go to indicate that D. Purushotham continued to remain as the landlord of the suit properties and the appellant has been required to pay rent to him. Therefore, the trial court was totally in error in not appreciating the evidence in proper perspective and its finding with regard to the jural relationship between the appellant and respondent is erroneous and contrary to the legal position.
9. In support of the above submissions, learned Counsel for the appellant placed reliance on the decisions reported in AIR 1979 Madras 26, AIR 1989 Orissa l54 and AIR 1995 SC 1891. Another submission made by the appellant’s counsel is that an application is also filed before this court under Order 41 Rule 27 of the CPC seeking permission to lead additional evidence, because the very landlord Purushotham had filed a suit against the respondent as well as the appellant and the said suit is O.S. No. 11032/2006 and as such, it is necessary to allow the said application filed for leading additional evidence.
10. On the other hand, learned Counsel Sri. Shekar Shetty for the respondent-plaintiff submitted that under Ex.P-1, the respondent was put in possession of the suit property and therefore, the respondent can be said to have been put in constructive possession of the suit property and once the respondent was put in possession pursuant to Ex.P-1 in part performance of the agreement of sale, Section 53A comes into operation and therefore, by operation of law, the respondent is entitled to evict the appellant and once the respondent is given the right to receive the rent also from the appellant, the respondent therefore, gets himself transposed as the landlord and therefore, the view taken by the trial court that there exists between the respondent and the appellant, the relationship of landlord and tenant perfectly in order and it is also in consonance with the position in law. In this connection, learned Counsel also referred to the explanation given to the term ‘delivery’ in Black’s Law Dictionary (V Edition) to submit that constructive delivery is a term comprehending all those acts which have been held by construction of law equivalent to acts of real delivery.
11. Reference was also made to the contents of Ex.P-1 to submit that the respondent has also been permitted to evict the appellant herein from the suit premises. Apart from this, number of documents produced by the respondent-plaintiff also go to show that the landlord Purushotham had directed the appellant to pay the rent to the respondent and this fact is also admitted by the appellant’s counsel in the course of his evidence. As far as the agreement of sale Ex.P-1 not being a registered document is concerned, it was submitted that by virtue of Section 17(2)(v) of the Registration Act, there is no necessity to register the said document Ex.P-1. As far as the letters upon which the appellant had placed reliance to show that the appellant was directed by the landlord Purushotham to pay the rent to the latter. It is submitted that the owner Purushotham was not examined and DW1 examined before the trial court is only a power of attorney holder. The said letters have also not been proved in accordance with the provisions of the Evidence Act and no statement of accounts of the landlord Purushotham has been produced in proof of the appellant having paid the rents to the said landlord. In support of all the above submissions, learned Counsel for the respondent placed reliance on the decisions reported in AIR 1984 Kerala 113, 1968(1) Mysore L.J. 435, 1998 (3) KLJ 73, ILR 2003 Karnataka 503, AIR 1970 SC 546 and AIR 1993 SC 1712. Learned Counsel Sri Shekar Shetty by referring to the above said decisions has submitted that, once the tenant is put in possession of the suit property, even the original owner cannot prevent the transferee from either collecting the rents or taking measures to evict the tenant. As far as the application filed under Order 41 Rule 27 is concerned, the submission made is that this court on an earlier occasion rejected the prayer of the appellant for getting the owner (sic) impleaded as a party to this appeal and therefore, when the order has been passed to the said effect, by this court, now it is not open to the appellant to once again seek the permission to lead additional evidence to prove the jural relationship and moreover, this court while rejecting the I.A. filed by the appellant, has observed that even if the respondent is the owner, it is for the alleged owner to work out the remedy. Therefore, in view of the said order passed by this court, no purpose would be served either in allowing the application under Order 41 Rule 27 or permitting the appellant to place additional evidence. It was also submitted that the application filed by the owner Purushotham was also rejected by this court on the very same grounds.
12. In the light of the submissions made as above and the rulings cited by the learned Counsel for the parties, the only point that arises for consideration is as to whether the respondent-plaintiff is entitled to seek eviction of the appellant pursuant to the agreement of sale Ex.P-1.
13. Certain facts which are not in dispute will have to be mentioned in the beginning itself so as to narrow down the area of controversy between the parties in the light of the contentions urged before this court. One D.A. Purushotham, the original owner of the suit property, had stepped into the shoes of one D. Arasappa and the appellant herein continued as a tenant first under D.Arasappa and later, under his son D.A.Purushotham and the lease was for a period of five years, which ended in the year 1979. The said D.A.Purushotham also had entered into an agreement of sale with the respondent-plaintiff as per Ex.P-1, which is dated 22.7.1983. Under the said document Ex.P-1, the respondent was also put in possession of the suit schedule property is also an inference which can be drawn without any doubt. The said agreement of sale Ex.P-1 is an unregistered agreement The original owner D.A. Purushotham had also written to the appellant herein to attorn the tenancy in favour of the respondent-plaintiff and to pay the rent from July 1983 onwards to the respondent by recognising him as the landlord. The said
fact is clear from Ex.P-7. The ownen Purushotham had also sent another letter to the appellant as per Ex.P-8 dated 10.11.1983 once again reiterating the fact of he having entered into an agreement with the respondent-plaintiff and directing the appellant to pay the rent to the respondent The respondent-plaintiff issued termination of tenancy notice to the appellant as required under Section 109 of the Transfer of Property Act is also clear from Ex.P-9 and there is no dispute even as regards this fact is concerned.
14. But, the appellant, also relying on certain other documents viz., Exs.P-6, D-25 and D-33, has contended that owner Purushotham had, at some point of time, went back on his instructions and required the appellant to pay the rent to Purushotham himself and on some occasions even to pay the Corporation Tax out of the rent amount. It is these documents which, according to the appellant, indicate that the respondent did not get any right to seek his ejectment on the basis of Ex.P-1, agreement of sale.
15. With the above undisputed facts, the answer that will have to be found out is as to whether the said document Ex.P-1 entitles the respondent to put himself into the shoes of the original owner Purushotham and seek for ejectment of the tenant.
16. The learned Counsel for the appellant, relying on the decisions referred to by him, has contended that an agreement of sale does not confer any right on the respondent to seek eviction of the appellant. In this connection, reference was also made to the provisions of the Transfer of Property Act and to Section 54 in particular. In the case of Lachaman Nepak v. Badan Kayalu Syama Babu Subudhi , it has been held that a mere agreement of sale cannot create any interest in or charge on the property in view of Section 54 of the Transfer of Property Act and Section 47 of the Registration Act. In the said decision, it has also been observed that the property does not pass on to the transferee until its registration is effected and a contract for the sale of the immovable property does not by itself create any interest in or charge on such property.
17. In the case of Sunil Kumar Jain v. Kishan A.I.R 1995 B.C. 1891, it has been held by the Supreme Court that an agreement of sale of land does not confer title and, therefore, the purchaser claiming to be in possession of the land is not entitled to compensation. The principle laid down in the case of A.N. Ranganatha Naidu v. Senthamarai is also to the very same effect inasmuch as the court held that an agreement of sale does not create any interest over the immovable property.
18. In view of the aforesaid principles of law, whether it can be said that, in the instant case, Ex.P-1 confers any right or interest in the respondent-plaintiff and whether such right entitles him to seek the relief as sought for by him is the question to be considered.
19. This takes us to Section 53A and Section 109 of the Transfer of Property Act. Section 53A of the said Act reads thus:
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 the contract, though required to be registered, has not been registered, or, 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
20. In the instant case, by virtue of Ex.P-1, the respondent-plaintiff was put in possession of the suit property by the original owner D.A. Purushotham. Section 53A of the Transfer of Property Act came up for interpretation before this court in the case of Narasimhasetty v. Padmasetty 1998 (3) Kar. L.J. 73. A Full Bench of this court, in the aforesaid decision, dealing with the doctrine of part performance, has observed that where, under a written contract of sale, the transferee has, in part performance of the contract, taken possession and continues to be in possession and has also performed his part of the contract by paying full amount of consideration, the transferor is estopped from seeking recovery of possession on the ground that the transfer was not effected under registered deed and that the transferee had failed to bring the suit for specific performance of contract within the period of limitation.
(emphasis Supplied)
21. Further, the court also made the following observations at paragraph-26 of the aforesaid decision:
26. From the above authoritative pronouncements of the Privy Council and the Supreme Court, it can unhesitatingly be held that Section 53A of the Act creates a statutory right in favour of transferee though the inspiration for incorporating the same might have been derived from the English equitable doctrine of part performance. But, it is now more than settled that in India the right of a transferee to defend his possession over a immovable property acquired pursuant to a contract and subject to fulfilment of statutory conditions contained in the said section is statutory in nature and cannot be whistled down on the equitable concept of latches or implied limitation.
22. The Supreme Court also considered Section 53A of the Transfer of Property Act in the case of Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi I.L.R. 2003 Karnataka 503 and 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. In the course of the said decision, the Apex Court also referred to the conditions to be satisfied before a transferee can seek to defend his possession under Section 53A of the Act. The said conditions are:
(1) there must be a contract to transfer for consideration of any immovable property;
(2) the contract must be in writing, signed by the transferor, or by someone on his behalf,
(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
(4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof,
(5) the transferee must have done some act in furtherance of the contract; and
(6) the transferee must have performed or be willing to perform his part of the contract.
If the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation.
23. The above position in law also was laid down by the Apex Court in an earlier case viz., Nathulal v. Phoolchand , and this decision has also been referred to by the Full Bench of this court in the aforementioned decision reported in 1998 (3) Kar. L.J. 73.
24. The learned Counsel for the respondent-plaintiff Shri S.Shekhar Shetty referred to Section 109 of the Transfer of Property Act and submitted that the transferee shall also possess all the rights of the lessor to the property and this will also include transfer of any part of his interest in the property by the lessor. Therefore, in the instant case, as owner Purushotham had transferred a part of his interest in the suit property by putting the respondent in possession and also permitting him to collect the rents by giving suitable instructions to the appellant, the respondent-plaintiff is entitled to seek eviction of the appellant-tenant from the premises. The submission of the learned Counsel for the respondent that even the original owner cannot disturb the possession of the transferee and that even if the tenant pays rent to the original owner, still the transferee i.e., the plaintiff herein, can seek eviction of the tenant and also gets support from the said provision, i.e., Section 109 of the T.P. Act. In this connection, it is also useful to refer to the A.I.R Commentary to the Transfer of Property Act.
25. In Volume-III of the 6th (2001) Edition of the A.I.R Commentaries, dealing with Section 109 of the T.P. Act, the following illustration is given in respect of the expression “the property leased or any part thereof or any part of the interest therein”. The said illustration No. (2) reads as under:
(2) A, the owner of property, executes a lease thereof to B, and subsequently, before the expiry of such lease, executes another lease of the same property in favour of C. ‘A’ cannot, after the date of the second lease, give B any notice to quit or recover any rent due after the date of the second lease from B. ‘c’ will be entitled to those rights.
26. Applying the same analogy to the case on hand, it can be said that although the appellant was the tenant under D.A. Purushotham at the first instance, subsequently, following the execution of the agreement of sale by Purushotham in favour of the respondent-plaintiff as per Ex.P-1 and putting the respondent in possession and also permitting him to receive the rents from the appellant, it is only the respondent, who will be entitled to receive the rents from the appellant. Thus, the respondent-plaintiff steps into the shoes of the original owner by virtue of the operation of law having regard to Section 53A and Section 109 of the T.P. Act.
27. The above conclusion is also supported by another decision of the Supreme Court in the case of Narpatchand A. Bhandari v. Shantilal Moolshankar Jani . Dealing with the expression “Landlord” under the Bombay Rents, Hotel and Lodging House Rates Control Act, the Apex Court held that the expression “Landlord” in Sub-section (1) of Section 13 of the said Act includes an usufructuary mortgage where the tenanted premises is the subject of usufructuary mortgage and an usufructuary mortgagee of tenanted premises can, therefore, file a suit for recovery of its possession from the tenant. It was also observed in the said case that when a lessor of a leased property creates an usufructuary mortgage in respect of such property, what he transfers under Section 109 of the T.P. Act as a mortgagor in favour of the usufructuary mortgagee includes his right to possession of Such property and the right to receive the rents and profits accruing from it Thus, under Section 109 of the T.P. Act, the court held that the usufructuary mortgagee is entitled from the lessor, as against the lessee, all legal rights which the lessor had against such lessee and from this, it follows that the tenanted premises, if it is mortgaged by the landlord by way of usufructuary mortage, the usufructuary mortgagee thereunder would become entitled to receive the rents and prosits accruing from such property in his own right or on his own account
28. By very same analogy, in the instent case also, as the respondent was put in posesion by the original owner Purushotham and as there was a further act on the part of the original owner in permitting the respondent to collectrents and direction also being given to the said effect to the appellant, which fact is not disputed by the appelant, for al purposes, the respondent-plaintiff, therefore, becomes the landlord and,as such, he can very well sek the relief of ejectment of the tenant. As far as as the nature of posesion by the respondent is concerned, it is also pertinent at this juncture to refer to the meaning given to the term “constructive delivery” in the Black’s Law Dictionary (V Edition), which is as under:
Constructive delivery is a general term, comprehending all those
acts which, although not truly conferring a real possession of the thing sold on the vendee, have been held by construction of law, equivalent to acts of real delivery. A constructive delivery of personality takes place when the goods are set apart and notice given to the person to whom they are to be delivered, or when, without actual transfer of the goods or their symbol, the conduct of the parties is such as to be inconsistent with any other supposition than that there has been a change in the nature of the holding. ‘Constructive Delivery’ is a term comprehending all those acts, which, although not truly conferring a real possession of the vendee, have been held by construction of law equivalent to acts of real delivery. Lakeview Gardens Inc., v. State ex.rel. Schneider. Kan. 557 P.2d 1286, 1290, See also Symbolical delivery, infra.
29. The inference drawn viz, that the respondent-plaintiff can step into the shoes of landlord Purushotham with all the rights and liabilities of the transferor-landlord, is also the view taken by the Kerala High Court in the case of Hajee K. Assatnar & Co. v. Chacko Joseph . Dealing with Section 109 of the T.P. Act, in the said case, the court has observed thus:
A transferee of the landlord’s rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section also protects payment of rent by the tenant to the transferor without notice of the transferee. The section does not insist that the transfer of the landlord’s rights can take effect only if the tenant attorns. Attornment by the tenant is unnecessary to confer validity to the transfer of the landlord’s rights. The attornment being unnecessary the tenant cannot dispute the right of transferee landlord to maintain application for eviction or to claim rent
30. In the light of the aforesaid position in law, in the case on hand, in view of the undisputed the facts referred to above earlier, I am of the view that the finding of the trial court that the respondent-plaintiff had made out a case for eviction of the appellant by virtue of the respondent stepping into the shoes of Purushotham as the landlord and seeking eviction of the tenant i.e., the appellant herein, therefore, cannot be found fault with or can it be said as contrary to the position in law.
31. As far as the application filed under Order 41 Rule 27 of the C.P.C. is concerned, this court, in its order passed on 17.9.2007, has rejected the applications filed both by the original owner Purushotham as well as the appellant herein and in the course of the said order at paragraphs, the following observation was made:
7. Learned Counsel for the appellant submits that, there is a serious dispute of relationship of landlord and tenant between the plaintiff and defendant As far as this suit is concerned, the issue does not require the presence of 3rd party, even if the alleged owner has grievance against the plaintiff. It is for him to work out his remedy. As far as this appeal is concerned, I do not find any justification to allow this application to implead the 3rd party in the appeal.
32. In view of the said order of this court, the question of permitting the appellant to seek to place further evidence in order to show that the original owner himself had filed a suit against the present appellant and the plaintiff, therefore, does not arise as this court had already decided the said issue by rejecting the request made by the original owner Purushotham as well as the appellant herein to implead the said Purushotham as party in this appeal. As this court has observed that the original owner can seek his remedy, it is still open to the original owner to seek any relief as is open to him in law and the very fact that the submission is made by the appellant’s counsel that the original owner had already filed a suit in O.S. No. 11032/2006 against the appellant and the respondent herein, the original owner, therefore, can pursue the said matter. But, however, that will not come in the way of this court confirming the order passed by the trial court as between the parties to the present suit are concerned,
33. For the aforesaid reasons, I do not find any good ground made out for this court to interfere with the view taken by the trial court and as the learned judge has considered all the evidence let in by the parties in proper perspective and has also referred to the position in law as has been laid down by the Apex Court, the findings recorded by the trial court on issues-1 and 3, therefore, cannot be termed as unsustainable in law. But, on the other hand, the said findings are in accordance with the evidence and the law bearing on the point in the light of the stand taken by the respective parties before the trial court.
34. In the result, the appeal is dismissed.
The appellant, however, is granted a further period of three months to vacate and hand-over the vacant possession of the suit property to the respondent-plaintiff and he shall also pay the arrears of rent due if any by him within the said period.
The respondent-plaintiff is also permitted to withdraw the amount, if any, already in deposit.