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Arun Kumar Gupta v/s Santosh Kumar

    Civil Misc. Writ Petition (Matters Under Article) 227 No. 4039 of 2017

    Decided On, 28 August 2017

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE SURYA PRAKASH KESARWANI

    For the Appellant: "Ram Dayal Tiwari, M.D. Singh ""Shekhar"", Advocates. For the Respondent: A.P. Tiwari, Salma Bano, Advocates.



Judgment Text

1. Heard Sri M.D. Singh Shekhar, learned Senior Counsel assisted by Sri R.D.Tiwari, learned counsel for the petitioner-defendant/tenant and Sri A.P. Tiwari, learned counsel for the respondents-landlord/plaintiffs.

FACTS

2. Briefly stated facts of the present case are that the respondents-plaintiffs have purchased a house No. B-35/42, Mohalla Sarai nandan, Ward-Bhelupur, City and district Varanasi by a registered sale-deed dated 28.8.2000. The said house was being occupied by the petitioner-defendant as tenant on a monthly rent of Rs. 240/- since the time of the erstwhile owner Sri Bulaki Sardar. The respondents-plaintiffs are occupying only one room on the ground-floor of the disputed house. They issued a notice to the petitioner-defendant for vacating the tenanted portion and to pay arrears of rent.

3. According to the respondents-plaintiffs, the said notice was not complied with by the petitioner-defendant and ultimately on 16.7.2004, they refused to vacate the tenanted portion. Therefore, in July,2004 the respondents-plaintiffs filed a release application under Section 21 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction ) Act, 1972 (hereinafter referred to as the 'Act'), which was registered as P.A. Case No. 38 of 2004. In the said P.A. case the petitioner-defendant took the stand that the erstwhile owner had executed an agreement to sale in favour of the petitioner-defendant on 2.4.1986 with respect to the disputed house, but the sale deed was not executed and as such he has filed a suit for specific performance being Original Suit No. 166 of 2002 (Amrit Lal v. Rajesh) which is pending. He further took the stand that in view of the registered agreement to sale of the disputed house, the petitioner-defendant is not a tenant and there is no relationship of landlord and tenant between the respondents-plaintiffs and the petitioner-defendant. The release application of the respondents-plaintiffs was allowed and the P.A. case was decreed by judgment and order dated 11.11.2010 passed by the Prescribed Authority/Additional Civil Judge (Senior Division )(Court No. 2), Varanasi.

4. Aggrieved with these two judgements, the petitioner-defendant filed First Appeal No. 176 of 2010 (Amrit Lal v. Santosh Kumar and others), which was dismissed by the Additional District Judge ( Court No. 9), Varanasi by the impugned judgment dated 20.4.2017.

5. Aggrieved with the aforesaid two judgments the petitioner-defendant has filed the present petition under Article 227 of the Constitution of India.

Submissions of The Petitioner-Defendants/tenant

6. Sri M.D. Singh Shekhar, learned Senior Counsel submits as under :

(i) A registered agreement to sale of the disputed house was executed by the erstwhile owner in favour of the petitioner-defendant in the year 1986, but the sale deed was not executed. Therefore, the petitioner-defendant filed a suit for specific performance in the year 2002, which is pending. Thus, the petitioner-defendant is not a tenant and there is no relationship of landlord-tenant between the respondents-plaintiffs and the petitioner-defendant. Consequently, both the impugned judgment deserves to be set aside. Reliance is placed on the judgment of Hon'ble Supreme Court in the case of R. Kanthimathi and others v. Mrs. Beatrice Xavier, AIR 2003 SC 4149 (Paras 6,7 and 8) and Arjunlal Bhatt Mall Gothani and others v. Girish Chandra Dutta and another, AIR 1973 SC 2256 (Paras 5 and 7).

(ii) On the date of execution of the aforesaid agreement to sale, the status of landlord and tenant changed into a new status as that of a purchaser and seller.

(iii) Under the circumstances, the petitioner-defendant has the protection of Section 53-A of the Transfer of Property Act, 1882. All the conditions of Section 53-A of the Transfer of Property Act, 1882 were duly fulfilled. Therefore, the petitioner-defendant has the protection of Section 53-A of the Transfer of Property Act, 1882, yet the courts below have committed manifest error of law and fact to allow the release application.

(iv) The averments made in para-8 of the plaint of the petitioner-defendant in suit for specific performance (Original Suit No. 166 of 2002) is not admission regasr his cont

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inuation in the disputed house as tenant. "This admission has no effect. The admission in para-8 of the aforesaid plaint has no effect being against law, in view of the provisions of Section 53-A of the Transfer of Property Act, 1882.

(v) Till the suit for specific performance (being Original Suit No. 166 of 2002) is decided, the Prescribed Authority, should have deferred the proceedings in P.A. Case No. 38 of 2004.

(vi) Once a relationship of landlord and tenant ceases on account of execution of agreement to sale by the erstwhile owner of the disputed house, it cannot be revived. Hence, eviction cannot be made under the Act.

(vii) All the conditions of Section 53-A of the Transfer of Property Act, 1882 stood complied with and as such the petitioner-defendant was entitled to the benefit of Section 50-A.

(viii) The court below have merely recorded the argument in the impugned judgments and completely failed to record any finding. Therefore, the impugned judgment cannot be sustained.

7. No other point has been argued by the learned counsel for the petitioner-defendant.

Submissions of The Respondents-Plaintiffs/Landlord

8. Sri A.P. Tiwari, learned counsel for the respondents-plaintiffs submits as under :

(i) The impugned judgments have been passed well in accordance with law and they did not suffer from any infirmity.

(ii) The findings recorded in the impugned judgments are findings of fact based on consideration of relevant evidences on record and as such it cannot be interfered with under Article 227 of the Constitution of India. (iii) The standing taken by the petitioner-defendant for the benefit of Section 53-A of the Transfer of Property Act, 1882, is wholly misconceived and misleading, inasmuch as in order to get the benefit of Section 53-A of the Transfer of Property Act, 1882, there must be possession over the property pursuance to agreement. There is no recital in the agreement to sale that the possession has been given.

(iii) The petitioner-defendant himself has admitted in para-8 of the Plaint in Original Suit No. 116 of 2002 (Suit for Specific Performance), that the petitioner-defendant was tenant of the erstwhile owner of the disputed house and is still occupying it as tenant. None of the conditions of Section 53-A of the Transfer of Property Act, 1882, are specified on the facts and circumstances of the present case and as such the provisions of Section 53-A of the Transfer of Property Act, 1882, is not attracted on the facts of the present case. The alleged unregistered deed of possession dated 6.3.1990 filed by the petitioner as Annexure-3 to the petition is a fake paper prepared by the petitioner-defendant for the purposes of the case, which was neither admissible in evidence nor was filed before the trial court.

9. In support of his submission Sri A.P. Tiwari relied upon the judgments of Hon'ble Supreme Court in the case of D.S. Parvathamma v. A Srinivasan, 2003 Law Suits (SC) 383 Eq. Citation : AIR 2002 (SC) 960 (Paras 11,14 and 17), AIR 2003 SC 3542 (Paras 6,9 and 12), Mool Chand Bakhru v. Rohan, 2002 Law Suit (SC) 125, Eq. Citation : AIR 2002 (SC ) 812 (Para 14), V.R. Sudhakara Rao v. T.V. Kameshwari, 2007 Law Suit (SC) 464 Eq. Citations : 2007(6) SCC 650. (Paras 16 and 17 ) ; Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (Dead), 2004 (4) AWC 3044 (SC), AIR 2004 (8) SCC 614 (Paras 7 and 8); Ram Kumar Agrawal v. Thawar Das 1999 Law Suit (SC) 857 Eq. Citation: 1999(7) SCC 303 (Para 8), Judgement dated 11.1.2010 in Civil Appeal No. 282 of 2010 (Joseph Kantharaj and another v. Attharunnisa Begam S.) (Paras 8,9, and 10) and a judgment of this Court in Mohd. Anwar v. Shabbir Ahmad and another, 2013 Law Suit (All) 567 Eq. Citation : 2013 (98) All LR 553 (Paras 21, 11, 45, 46 and 47).

Discussion And Findings

10. I have carefully considered the submissions of the learned counsel for the parties and with their consent the following questions are being framed for determination :

(I) Whether there is landlord-tenant relationship between the respondents-plaintiffs and the petitioner-defendant ?

(ii) Whether in view of the alleged agreement to sale of the disputed house allegedly executed by the erstwhile owner, petitioner-defendant is entitled to the protection of Section 53-A of the Transfer of Property Act, 1882 ?

(iii) Whether the impugned judgments are valid ?

11. The question nos. 1 and 2 are inter-linked and, therefore, both the questions are being considered together.

12. According to the petitioner-defendant the erstwhile owner of the disputed house Sri Bulaki Lal had executed an agreement to sale dated 2.4.1986 in favour of Smt. Chintamani Gupta (mother of the petitioner-defendant) agreeing to sell the disputed house for Rs. 80,000/-. He allegedly executed another registered agreement on 6.3.1990 mentioning therein that out of the total agreed consideration of Rs. 80,000/- he has received Rs. 5000/- on 26.4.1989 and Rs. 8,000/- on 6.3.1990, total Rs. 23,000/-. Neither the registered agreement to sale dated 2.4.1986 nor the registered agreement dated 6.3.1990 contains any clause, whereby in part performance of the contract of sale, the proposed transferee (petitioner-defendant) has taken possession of the disputed house or any part thereof or the petitioner had done some act in furtherance of the contract of agreement to sale. On the contrary, in his suit for specific performance being O.S. No. 166 of 2002 (Chintamani Gupta/Amrit Lal and others v. Rajesh Yadav and others), the petitioner/proposed transferee admitted himself/herself to be the tenant and specifically stated in para 8 on personal knowledge as under :

'LANGUAGE'

13. Paragraph-8 of the aforesaid Plaint was verified by Smt. Chintamani Gupta (mother of the petitioner-defendant) on personal knowledge. The said plaint does not contain any whisper about the alleged unregistered agreement dated 6.3.1990. On the contrary, it contains clear averment that she was a tenant in the disputed house and still she is continuing as a tenant. The said plaint was verified by her on 9.3.2002. The defendants of the aforesaid Original Suit No. 166 of 2002 filed a written statement in which they denied the agreement to sale dated 2.4.1986 and the registered deed dated 6.3.1990. They further stated that an agreement to sale was executed by their father Sri Bulaki Ram Yadav in favour of Sri Babbal Yadav on 12.9.1995 with respect to the disputed house and since Sri Bulaki Ram Yadav had died on 27.10.1996 and as such the registered sale deed was executed by them on 28.8.2000 in favour of the wife of Sri Babbal Yadav, who are respondents-plaintiffs in the present petition.

14. The respondents-plaintiffs filed a release application under Section 21 of the Act being P.A. Case No. 38 of 2004. The petitioner defendant filed a written statement dated 12.4.2005 in the said P.A. Case. In the said written statement, after replying paragraph-8 of the plaint, he made additional averments in paragraph Nos. 24 to 52 in which he gave specific details of various events including execution of the registered agreement to sale dated 2.4.1986 and the registered deed dated 6.3.1990, but there is no mention of the alleged unregistered deed dated 6.3.1990, which has been heavily relied by the petitioner's counsel in the present petition. This unregistered deed was neither admissible in evidence nor was filed before the courts below in the aforesaid P.A. Case. It appears to have been filed for the first time before this Court. Thus, this alleged unregistered-deed dated 6.3.1990 appears to have been prepared merely for the purposes of the case. Own admission of the mother of the petitioner namely, the plaintiff of Original Suit No. 166 of 2002, as quoted above, leaves no manner of doubt that the petitioner-defendant continued to occupy the disputed house as tenant. There is no evidence on record that the petitioner-defendant took possession of the disputed house from the erstwhile owner in part performance of the alleged agreement to sale dated 2.4.1986. The respondents-plaintiffs had purchased the disputed house by a registered sale-deed and became owner and landlord. Thus, there was landlord-tenant relationship between the respondent-plaintiff and the petitioner-defendant.

section 53A of The Transfer of Property Act, 1882

15. Adverting to the main contention of the learned counsel for the petitioner-defendant regarding protection of Section 53-A of the Transfer of Property Act, I find that the benefit of Section 53A of the Act, is not available to the petitioner-defendant. For ready reference the provisions of Section 53-A of the Transfer of Property Act, 1882 is reproduced below :

"53A. 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 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."

16. The doctrine of part performance of contract as provided by Section 53-A aims at protecting the possession of such transferee, who takes possession of the property in part performance of the contract and is willing to perform his part of the contract, provided certain conditions contemplated by section 53A of the Transfer of Property Act, 1882, are fulfilled. The essential conditions, which are required to be fulfilled, if a transferee wants to defend or protect his possession under section 53A of the Transfer of Property Act, 1882, have been culled out by Hon'ble Supreme Court in the case of Shrimant Shamrao Suryavanshi and another v. Prahlad Bhairoba Suryavanshi (Dead) by LRs. and others, (2002)3 SCC 676 as under :

1) there must be a contract to transfer for consideration 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;

17. If the aforementioned conditions are fulfilled then in a given case, there is an equity in favour of the proposed transferee, who can protect his possession against the proposed transferor even though a registered deed conveying the title is not executed by the proposed transferor. In such as situation equitable doctrine of part performance provided under section 53A of the Transfer of Property Act, 1882 comes into play. Consequently, 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. Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It dis-entitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party. This view is supported by the law laid down by Hon'ble Supreme Court in the case of Rambhau Namdeo Gajre (supra).

18. In the case of Mohd. Anwar v. Shabbir Ahmad and another (supra), Hon'ble Supreme Court reiterated the principles laid down in the case of S.S. Suryavanshi (supra).

19. In the case of Mool Chand Bakhru v. Rohan (Supra), Hon'ble Supreme Court held that written agreement has to precede the putting of the proposed vendee in possession of the property, which is absent in the present set of facts.

20. In the case of D.S. Parvathamma (supra), Hon'ble Supreme Court considered the controversy that where the respondents claiming himself to be the owner-landlord sought eviction of the appellant alleging him to be the tenant in the suit premises. The appellant-tenant claimed his possession under Section 53-A of the Transfer of Property Act, 1882. Hon'ble Supreme Court considered the question "Whether the appellant is entitled to protect his possession under Section 53-A of the Transfer of Property Act, 1882, and hence not liable to suffer eviction based on landlord-tenant relationship which has ceased to exist on account of subsequent events" and held as under :

"Secondly, the appellant has failed to allege and prove that he was delivered possession in part performance of the contract or he, being already in possession as lessee, continued in possession in part performance of the agreement to purchase, i.e. by mutual agreement between the parties his possession as lessee ceased and commenced as that of a transferee under the contract. On the contrary, there is a finding recorded in the earlier suit that in spite of his having entered into a contract to purchase the property he had not disowned his character as lessee and he was treated as such by the parties. The judgment dated 1.9.1999 in the Civil Suit notes the conduct of the plaintiff inconsistent with his conduct as vendee in possession. When a person already in possession of the property in some other capacity enters into a contract to purchase the property, to confer the benefit of protecting possession under the plea of part performance his act effective from that day must be consistent with the contract alleged and also such as cannot be referred to the preceding title. The High Court of Madhya Pradesh had an occasion to deal with the facts very near to the facts before us in Bhagwandas Parsadilal v. Surajmal & Anr., AIR 1961 M.P. 237. A tenant in possession entered into an agreement to purchase the house forming subject matter of tenancy.

However, he failed to show his nature of possession having altered from that of a tenant into that of a transferee. In a suit of ejectment based on landlord-tenant relationship, the tenant sought to protect his possession by raising the plea of part performance as against subsequent purchaser of the property. Referring to Section 91 of Indian Trust Act, the High Court held that a subsequent purchaser of the property with notice of an existing contract affecting that property must hold the property for the benefit of the person in whose favour the prior agreement to sell has been executed to the extent it is necessary to give effect to that contract. But that does not mean that till a final decision has been reached the contract creates a right in the person in possession, i.e. the tenant, to refuse to surrender possession of the premises even if such possession was obtained by him not in part performance of the contract but in his capacity as a tenant. Having entered into possession as a tenant and having continued to remain in possession in that capacity he cannot be heard to say that by reason of the agreement to sell his possession was no longer that of a tenant. (Also see Dakshinamurthi Mudaliar (Dead) & Ors. v. Dhanakoti Ammal, AIR 1925 Madras 965 and A.M.A. Sultan (deceased by LRs) & Ors. v. Seydu Zohra Beevi, AIR 1990 Kerala 186) In our opinion the law has been correctly stated by the High Court of Madhya Pradesh in the above-said decision.

Strong reliance was placed by the learned senior counsel for the appellant on a recent decision of this Court in Shrimant Shamrao Suryavanshi & Anr. v. Pralhad Bhairoba Suryavanshi (Dead) by Lrs. & Ors., (2002) 3 SCC 676, wherein this Court has held that a person obtaining possession of the property in part performance of an agreement of sale, can defend his possession in a suit for recovery of possession filed by the transferor or by subsequent transferee of the property claiming under him, even if a suit for specific performance of the agreement of sale has become barred by limitation. (emphasis supplied) Clearly it was a case where the person in possession was so inducted in part performance of the agreement of sale. Excepting that his suit had gone barred by limitation there was nothing else to deny the benefit of the plea to the person in possession. The court proceeded on the reasoning that the law of limitation barred the remedy but did not bar the defence. The distinguishing features of that case are that: (i) it was admitted that the transferee had taken possession over the property in part performance of the contract, (ii) that the transferee had not brought any suit for specific performance of the agreement to sell, and (iii) the transferee was always and still ready and willing to perform his part of the contract. These three significant factual features are missing in the case before us and therefore the appellant's effort to find support from the authority of Shrimant Shamrao Suryavanshi's case (supra) must fail. Bar of limitation alone does not bar the plea of part performance being raised if all other requisites of Section 53-A of T.P. Act are available."

21. In the case of Joseph Kantharaj & Another (supra), Hon'ble Supreme Court considered a case-where the respondent claiming to be the owner of the suit premises filed an eviction petition against the appellant under section 21(1) of the Karnataka Rent Control Act, 1961, and the appellant resisted the eviction petition contending that he was not the tenant of the premises rather he entered into an agreement to sale with the erstwhile owner in his favour. Hon'ble Supreme Court considered the controversy in detail and held as under :

"We are of the view that interference with that decision of the trial court by the High Court relying upon the earlier decision of the High Court in Haji Iqbal Shariff v. C. Manjula, ILR 2006 Kar 2766 is erroneous. In Haji Iqbal Shariff, the High Court had held that once the person in occupation of a premises, admits that he was the tenant under the previous owner, that can be taken as evidence of relationship of landlord and tenant between the transferee from previous owner and such tenant. The High Court purporting to follow the said decision, held that the first appellant having admitted that he was earlier the tenant under Anthony Swamy, became the tenant under the respondent, ignoring the defence.

There can be no dispute about the general proposition laid down by the High Court in Haji Iqbal Shariff. But the High Court ignored the fact that though the first appellant had admitted that he was earlier the tenant under the previous owner, he had also specifically pleaded that the previous owner had executed an agreement of sale and permitted him to continue in possession in part performance of the said agreement of sale and that therefore he ceased to be a tenant from the date of agreement, namely 11.6.1997, that the relationship of landlord and tenant between him and the previous owner had come to an end, and that as on the date of sale by Anthony Swamy in favour of the respondent, he was in possession in part performance of the agreement of sale and not as a tenant. In fact the first appellant also filed a suit for specific performance in the year 1999 which is pending. If there was an agreement of sale dated 11.6.1967 and delivery of possession in part performance, as alleged by the first appellant, then he did not become a tenant under the Respondent and the decision in Haji Iqbal Shariff relied on by the High Court would be inapplicable.

We may however clarify that a mere assertion by a tenant that he is in possession in part performance of an agreement of sale, or the mere filing of a suit for a specific performance, by itself will not lead to deferment of the eviction proceedings under section 43 of the New Act. But where the respondent in an eviction proceeding under the Rent Act denies the relationship of landlord and tenant contending that he is not in possession as a tenant and produces and relies upon an agreement of sale in his favour which confirms delivery of possession in past performance, and a specific performance suit is pending and there is no lease deed, or payment of rent from the date of such agreement of sale, or no acknowledgment of attornment of tenancy, section 43 of the new Act may apply. But a word of caution. Courts dealing with summary proceedings against tenants under Rent Acts for eviction, should be wary of defendants coming forward with defences of agreement of sale, lest that becomes a stock defence in such petitions. Unless the court is satisfied prima facie that the agreement is genuine and defence is bona fide, it should not defer the proceedings for eviction under the Rent Acts."

(Emphasis supplied by me )

22. Applying the ratio of the law laid down by Hon'ble Supreme Court in the afore-noted judgments, particularly, in the judgment of D.S. Parvathamma (supra) on the facts of the present case, I have no hesitation to hold that the petitioner-defendant has completely failed to bring his case within the purview of protection of Section 53-A of the Transfer of Property Act.

23. In the case of Rambhau Namdeo Gajre (supra), Hon'ble Supreme Court noted the fact that under an agreement to sale dated 16.6.1961, Narayan Bapuji Dhotra, the original plaintiffs and his brother agreed to sell the suit land to Pshorrilal Punjabi, who paid the entire amount of consideration and was put in possession of the land in part performance of the agreement of sale. Thus, the judgments relied by the learned counsel for the petitioner-defendant are clearly distinguishable on facts and are of no help to him. That apart the plea of protection of Section 53-A of the Transfer of Property Act, has been taken by the petitioner-defendant for the first time in this petition. The findings on the basis of pleadings and evidence led by the parties have been recorded by both the courts below holding landlord-tenant relationship, are findings of facts based on consideration of relevant evidences and material on record. Therefore, the findings cannot be interfered with in jurisdiction under Article 227 of the Constitution of India. The scope of judicial review in the matters where the orders of the courts below are assailed before this Court in a writ petition under Article 226/227 of the Constitution of India is very limited.

24. In the case of D.N. Banerji v. P.R. Mukherjee, 1953 AIR (SC) 58, Hon'ble Supreme Court held that "Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere."

25. In the case of Waryam Singh and another v. Amarnath and another, 1954 AIR (SC) 215, Hon'ble Supreme Court held that " the power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 (Cal) 193 to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting merer errors."

26. In the case of Mohd Yunus v. Mohd. Mustaquim and others, AIR 1984 SC 38, Hon'ble Supreme Court held that the scope of Article 227 of the Constitution is very limited and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.

27. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and dehors the factual and legal position on record. (See: Nibaran Chandra Bag v. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya v. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani v. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. v. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. v. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. v. Vinayak N. Joshi & ors. (1999) 1 SCC 47).

28. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego v. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan v. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. v. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. v. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).

29. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. v. Himmat Singh Chahar, (1999) 4 SCC 521).

30. In Ajaib Singh v. Sirhind Co-operative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.

31. In Mohan Amba Prasad Agnihotri v. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.

32. In Indian Overseas Bank v. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to re-appreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.

33. In Union of India v. Rajendra Prabhu, (2001) 4 SCC 472, the Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.

34. Similar view has been reiterated in State of Maharashtra v. Milind & ors., (2001) 1 SCC 4; Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. v. M. Abdul Khader, (2002) 1 SCC 319.

35. In Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.

36. In Jasbir Singh v. State of Punjab (2006 ) 8 SCC 294, the Court said:

"while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."

37. In Shalini Shyam Shetty and another v. Rajendra Shankar Patil (2010) 8 SCC 329, the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others v. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana v. Imandi Anasuya (2011) 12 SCC 650.

38. In Abdul Razak (D) through Lrs. & others v. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.

39. In T.G.N. Kumar v. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.

40. In Commandant, 22nd Battalion, CRPF and others v. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India v. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.

CONCLUSIONS

41. In view of the above discussions, the conclusions may be briefly summarized as under :

(i) If a proposed transferee wants to protect his possession under section 53-A of the Transfer of Property Act 1882, he has to establish that following conditions are satisfied:

(1) there must be a contract to transfer for consideration 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;

(ii) Petitioner-defendant has failed to allege and prove that he was delivered possession in part performance of the contract or he, being already in possession as lessee, continued in possession in part performance of the agreement to purchase, i.e. by mutual agreement between the parties his possession as lessee ceased and commenced as that of a transferee under the contract.

(iii) A mere assertion by a tenant that he is in possession in part performance of an agreement of sale, or the mere filing of a suit for a specific performance, by itself will not lead to deferment of the eviction proceedings.

(iv) The plea of protection of Section 53-A of the Transfer of Property Act, has been taken by the petitioner-defendant for the first time in this petition. The findings on the basis of pleadings and evidences led by the parties have been recorded by both the courts below holding landlord-tenant relationship, are findings of facts based on consideration of relevant evidences and material on record. Therefore, the findings cannot be interfered with in jurisdiction under Article 227 of the Constitution of India. The scope of judicial review in the matters where the orders of the courts below are assailed before this Court in a writ petition under Article 226/227 of the Constitution of India, is very limited.

(v) Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere. The power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. The scope of Article 227 of the Constitution is very limited and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and dehors the factual and legal position on record. Power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. This power is not in the nature of power of appellate authority enabling re-appreciation of evidence. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken, the High Court can not interfere. The High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below. Be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby. Power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(vi) There is landlord and tenant relationship between the respondent-plaintiffs and the petitioner-defendant. The findings in this regard recorded by the courts below are the findings of fact based on consideration of relevant evidences on record. The petitioner-defendant is not entitled to the protection of section 53A of the Transfer of Property Act 1882. The impugned judgments are valid.

42. In view of the above discussions, I do not find any manifest or patent illegality in the impugned judgments. The findings recorded in the impugned judgments are findings of fact, based on considerations of relevant evidences on record. The protection of Section 53-A of the Transfer of Property Act, 1882, is not available to the petitioner-defendant on the facts and circumstances of the present case. The impugned judgments do not suffer from any manifest illegality, which may require interference by this Court under Article 227 of the Constitution of India.

43. In result, the petition fails and is hereby dismissed.
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