SAGAR ALI Vs. DISTRICT JUDGE, DEHRADUN

JUDGEMENT

(1.) BY the present Writ Petition, the petitioner has prayed for quashing of the orders passed by the Rent Control and Eviction Officer as well as the Revisional Authority (Annexures 2 and 3 of the Writ Petition).

(2.) BRIEFLY stated, the proceedings for the vacancy were instituted in respect of the shop. In pursuance thereof an application for release was filed on the basis of agreement to sell the house on 6th July, 1981 in favour of the respondent no. 3.

(3.) IT was stated in the release application that the property in question was agreed to be sold of a sum of Rs. 10,000/ - out of which, he received a sum of Rs. 9,800/ - and the balance was to be paid at the time of registration before the Sub Registrar. The vacancy was declared on 2nd September, 1981. In pursuance of the aforesaid vacancy, the petitioner as well as the respondent both have applied for the release of the disputed shop. The Rent Control and Eviction Officer has recorded a finding that the requirement of the petitioner was neither bona fide nor genuine and therefore, the shop could not be allotted (released) in his favour. However, so far as the release in favour of the respondent no. 3 was concerned, the same was considered to be genuine on the basis of the principles contained in Section 53 -A of the Transfer of Property Act. The petitioner approached to the Revisional Authority under Section 18 of U.P. Act No. 13 of 1972. The said revision has been dismissed. Section 53 -A of the Transfer of Property Act provides as under: - "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 (* * *), where there is an instrument to transfer, that the transfer has not been completed in the manner prescribed there for 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."