SHRIRAM PISTONS Vs. BASANT KHATRI

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the Trial Court dated 8.11.2011 decreeing the suit for possession and mesne profits filed by the respondent/landlord.

(2.) THE facts of the case are that the appellant/defendant/lessee vide a lease deed dated 3.8.2005 took on lease the premises being E-35, Third Floor, Himalaya House, 23, Kasturba Gandhi Marg, New Delhi-110001 admeasuring 994 sqr. ft. from the then owner/landlord-Mrs. Usha Lall. This lease deed was for a period of 3 years from 1.7.2005 to 30.6.2008. This lease deed is not a registered document, and therefore, the tenancy would obviously be only a monthly tenancy. THE so-called period of lease expired on 30.6.2008. THE original owner/landlord, Mrs. Usha Lall in the meanwhile on 11.6.2008 had entered into an agreement to sell of this property with the present respondent/plaintiff. This agreement to sell dated 11.6.2008 was subsequently registered on 11.2.2009, after payment of the requisite stamp duty and registration charges. Since the appellant/defendant failed to vacate the property in spite of termination of the tenancy by legal notice dt.14.7.2008, the subject suit for possession and mesne profits came to be filed.

(3.) THE first argument of the learned senior counsel for the appellant before this Court is that the suit was not maintainable as the respondent/plaintiff was not the owner/landlord of the premises. In my opinion, this argument is without any merit inasmuch as the original owner/landlord, Smt. Usha Lall has executed and registered the agreement to sell dated 11.2.2009 with respect to the suit property in favour of the respondent/plaintiff. By this agreement to sell, which is a duly registered document, after paying the requisite amount of stamp duty, the original owner/landlord agreed to transfer the leased property to the respondent/plaintiff and also transferred constructive possession of the same to the respondent/plaintiff. In pursuance to the agreement to sell, registered on 11.2.2009, the original owner/landlord - Mrs. Usha Lall also wrote a letter dated 11.6.2008, Ex. PW1/5, to the appellant/defendant informing of the agreement to sell and stating that the lessee/tenant, i.e. the appellant/defendant has now to deal with the respondent/plaintiff for the suit property, including with respect to handing over possession or with respect to the security deposit. As per Section 53A of the Transfer of Property Act, 1882, once there is an agreement to sell in writing signed between the parties and possession is delivered, then the prospective purchaser under the agreement to sell gets benefit of the doctrine of part performance whereby the original owner/landlord is prevented from claiming any right of ownership in the property as against the prospective purchaser. Before passing of the Act 48 of 2001 by the Legislature which amended various provisions of the Transfer of Property Act, 1882, Registration Act, 1908, Court Fees Act, 1870 as applicable to Delhi, there was a misuse of this provision of Section 53A of Transfer of Property Act, 1882 whereby in order to overreach the authorities with respect to stamp duty, registration and payment of ?unearned increase? to the superior lessor of the land, parties were entering into an agreement to sell and taking benefit of doctrine of part performance as per Section 53A. THE Legislature consequently brought in Act 48 of 2001 whereby an agreement to sell falling under Section 53A could not be looked into unless the same be registered and the stamp duty paid thereon as per 90% value of the sale deed. For payment of stamp duty circle rates have been fixed in Delhi and on which rates stamp duty is paid. THErefore once an agreement to sell is duly registered with the necessary stamp duty having been paid, the prospective purchaser such as the respondent/plaintiff gets benefit of the doctrine of part performance under Section 53A of Transfer of Property Act, 1882. THE decision of the Supreme Court in the case of Suraj Lamp (supra) was to prohibit those sets of transactions which fell foul of the erstwhile Section 53A before the same was amended by Act 48 of 2001. However, once, the requirement of existing Section 53A of Transfer of Property Act, 1882 is satisfied, i.e. the agreement to sell is duly registered and stamped, then, such agreement can definitely to be looked into and will not fall foul either of the existing/amended Section 53A of the Transfer of Property Act, 1882 or the judgment in the case of Suraj Lamp (supra). I am therefore of the opinion that the respondent/plaintiff had definitely become the landlord of the premises entitling him to possession of the suit property on the basis of the agreement to sell registered on 11.2.2009. No doubt remains as to the respondent/plaintiff being the landlord once we look at atornment letter, Ex.PW1/5 dated 11.6.2008 addressed by Mrs. Usha Lall to the present appellant/defendant. Before this Court, in my opinion, the appellant/defendant ought to have filed a photocopy of this letter inasmuch as, this letter contains the endorsement of receipt thereof by the appellant/defendant which would have been clear from the photocopy by the appellant/defendant, however, only a typed copy of this letter dated 11.6.2008 has been filed before this Court. In any case, after perusal of the record with the learned senior counsel for the appellant, it becomes clear that there is no cross-examination of the witnesses of the respondent/plaintiff that the appellant/defendant/tenant did not receive this letter Ex.PW1/5 dated 11.6.2008 and nor is there any affirmative evidence led on behalf of the appellant/defendant that it has not received this letter dated 11.6.2008, Ex.PW1/5 from the original owner/landlord, Mrs. Usha Lall. An issue of atornment is not a matter of choice once rights in a property are transferred, and the original landlord directs the tenant to deal with the new owner/landlord. In the present case, in the face of the registered agreement to sell dated 11.2.2009 executed by the erstwhile owner/landlord in favour of the respondent/plaintiff and the atornment letter dated 11.6.2008, Ex. PW1/5, the appellant/defendant has no option but to take the respondent/plaintiff as a landlord of the premises. Merely contending that the appellant/defendant refuses to accept the respondent/plaintiff as the landlord of the premises, cannot take its case any further and the appellant/defendant is a tenant under the respondent/plaintiff. I also feel that the appellant/defendant has no business to dispute the fact that the respondent/plaintiff is the landlord inasmuch as the original owner/landlord herself is not disputing the fact that the respondent/plaintiff is the landlord.