HIRALAL AGARWAL Vs. VIRENDRA KUMAR

JUDGEMENT

(1.) HEARD Shri P. K. Singhal, learned Counsel for appellant and Shri Prakash Gupta for respondents. With the consent of the parties the second appeal nominated by order of Hon'ble the Chief Justice dated 14. 9. 2007 was finally heard.

(2.) THIS defendants-second appeal arises out of Original Suit No. 341 of 1984 for declaration, possession after ejectment of the defendants and Rs. 2437/-with interest w. e. f. 22. 12. 1975 and mesne profit @ Rs. 60/- per month till the delivery of possession. It was alleged in the plaint that the deceased-defendant was the tenant of late Pandit Shiv Narain Sharma and was in possession of the premises. Shri Om Prakash Sharma the son of Pandit Shiv Narain Sharma was looking after the property and was receiving the rent. By the three sale deeds the property was transferred to the plaintiffs. As soon as the sale deeds were registered, the defendant was informed with the sale and a letter was written on 17. 11. 1971 by late Pandit Shiv Narain Sharma to pay the rent to the plaintiffs. He did not pay the rent or the water tax w. e. f. 15. 7. 1972 on which a registered notice was given on 8. 4. 1975 raising a demand for arrears of rent and water tax and terminating the tenancy. The deceased-defendant, instead of paying the rent and vacating the premises, denied that he is tenant of the house and claimed himself to be owner and thereby denied plaintiffs title.

(3.) THE defendant alleged that he is occupying the entire first floor as owner of property No. 4 (new numbers 1/17 and 1/17/1 and 5) situated at M. G. Road, Agra. He alleged that the sale deeds are void as the plaintiffs were aware of the agreement to sale dated 4. 2. 1064. There was no question of payment of rent as there was no relationship of landlord and tenant. The reply was given to the notice dated 8. 4. 1975 on 8. 5. 1975 in which it was clearly stated that by an agreement to sale dated 4. 2. 1964 the property was agreed to be sold by late Pandit Shiv Narain Sharma. The provisions of U. P. Act No. 13 of 1972 are not applicable and that the plaintiffs are not entitled to any relief. The Suit No. 172 of 1974 was filed in Judge, Small Causes Court, Agra which was not found to be within jurisdiction of the Court. In March 1984 the defendants also took the plea of jurisdiction and limitation as well as section 34 of the Specific Reliefs Act. In the additional pleas it was alleged that the first floor of house No. 4, which is numbered as 1/17 x 2 to 1/17/5 M. G. Road Agra was taken from its previous owner Shri S. N. Sharma in 1958. The defendant made it habitable after making repairs and agreed to take the premises on rent at Rs. 35/- per month on February 4, 1964. Shri S. N. Sharma, required a sum of Rs. 15,000/-which were agreed to be paid on the condition that the amount will bear interest of one per cent per month out of which Rs. 37/- will be paid towards the rent, and the remaining Rs. 115/- will accumulate upto Rs. 5000/- and whenever total amount of Rs. 20,000/- will be accumulated the tenancy will come to an end, and the defendants will continue to occupy the portion in part performance of the contract and thereafter Shri S. N. Verma will execute the sale deeds. The defendants will have the right to make additional constructions and has made considerable expenses on repairs of the property. After about two or three months of the agreement Shri S. N. Sharma suffered an attack of paralysis. He was paid rent upto August 1970 when he died leaving his wife and son Om Prakash. The defendant has been always ready and willing to perform his part of the contract and also made several times oral requests in writing and thereafter registered letters were sent to execute the sale deed without any effect. The plaintiff Harendra Kumar had knowledge of the agreement as he had singed the agreement.