Uttarakhand High Court
Rajan Transport Company & Another vs Akhil Kumar on 29 July, 2026
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
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HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition Misc. Single No. 2199 of 2024
29 July, 2026
Rajan Transport Company & another --Petitioners
Versus
Akhil Kumar --Respondent
Presence:-
Mr. Vijay Bhatt, Senior Advocate, assisted by Mr. Priyank Kharkwal,
Advocate for the petitioners.
Mr. Piyush Garg, Advocate for the respondent.
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JUDGMENT
1. Petitioner is tenant in respect of a shop in
Arhat Bazar, Dehradun. Owner of the said shop filed
application under Section 21 (1) (a) of U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction)
Act, 1972 (U.P. Act No. 13 of 1972) for release of that
shop on the ground of personal bonafide need. Said
application was registered as P.A. Case No. 15 of 2021,
which is pending before Second Additional Civil Judge
(Senior Division), Dehradun.
2. Petitioner moved an application in the said
case praying for dismissal of release application by
contending that owner of the shop executed an
agreement to sell in favour of wife of Virendra Pal Singh
(petitioner no. 2 herein) on 26.04.2012 and the sale
consideration has also been paid to him and a suit for
specific performance of the said agreement was filed,
which is pending before 9th Additional Civil Judge
(Senior Division), Dehradun; the petitioners are in
possession over the shop not as tenant but on the
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strength of the agreement to sell.
3. Learned Second Additional Civil Judge
rejected the application filed by petitioners vide order
dated 30.07.2024 by holding that in summary
proceedings under Section 21 (1) (a) of U.P. Act No. 13
of 1972, dispute regarding title cannot be adjudicated
and it is only to be seen whether person filing release
application is the landlord or not. This order passed by
learned Second Additional Civil Judge is under
challenge in this petition filed under Article 227 of the
Constitution.
4. Learned counsel for petitioners submits that
even though petitioners were tenant earlier, however,
their status underwent a change, consequent to
execution of agreement to sell in their favour by owner
of the shop, therefore, the application for release of
shop, filed by respondent is not maintainable. He
further submits that a suit for specific performance of
the said agreement to sell was filed by petitioner no. 2,
his wife and his son, which is pending before Civil
Judge (Senior Division), Dehradun and there is fair
chance of success in that suit. Learned counsel for the
petitioners also relies upon a receipt, alleged to have
been issued, by respondent in favour of wife of
petitioner no. 2, for contending that possession of the
shop was handed over to the petitioners.
5. Per contra, learned counsel for respondent
submits that the agreement to sell relied upon by
petitioners is a bogus document and respondent never
executed such agreement in favour of petitioners. He
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further submits that even in the document relied upon
by petitioners, it is mentioned on the top of first page
that it is ‘without possession’. He refers to clause 5 of
the said document where it is mentioned that symbolic
possession of the property shall be transferred by
owner (respondent herein) in favour of wife of petitioner
no. 2 at the time of execution of sale deed. Clause 5 of
the said agreement is reproduced below for ready
reference:-
“5. That ground floor portion of the said property is already under
tenancy of M/s Rajan Transport. Symbolic possession of this part
shall be transferred to the second party at the time of sale deed. The
physical possession of the first floor portion of the said property which
is in physical possession of the first party shall be transferred to the
Third party at the time of execution of the sale deed.”
6. Learned counsel for respondent submits that
the document enclosed as Annexure-7 to the writ
petition do not support the contention of petitioners
that possession of the shop was delivered to them, even
if the said document is taken at its face value. He
further submits that his client has specifically denied
issuance of any receipt to the petitioners.
7. This Court do not find any scope for
interference with the order passed by learned
Additional Civil Judge.
8. Hon’ble Supreme Court in the case of H.K.
Sharma v. Ram Lal, reported as (2019) 4 SCC 153 held
that lessor-lessee relationship is not terminated merely
by execution of an agreement to sell for tenanted
premises in favour of the tenant and it is necessary to
determine whether the parties intended to surrender
the lease on execution of such agreement. It was
further held that if the agreement does not contain any
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stipulation from which intention of the lessor can be
gathered that he did surrender the tenancy either
expressly or impliedly in favour of the tenant, then
mere execution of an agreement to sell will not result in
determination of tenancy and the lessor would be
entitled to seek eviction of the tenant from the tenanted
premises. Paragraph no. 22 to 34 of the said judgment
are reproduced below:-
“22. The question, which arises for consideration in these appeals, is
when the lessor and the lessee enters into an agreement for
sale/purchase of the tenanted premises where the lessor agrees to sell
the tenanted premises to his lessee for consideration on certain
conditions, whether, as a result of entering into such agreement, the
jural relationship of lessor and the lessee in relation to the leased
property comes to an end and, if so, whether it results in determination
of the lease.
23. In other words, the question that arises for consideration is when
the lessor enters into an agreement to sell the tenanted property to his
lessee during the subsistence of the lease, whether execution of such
agreement would ipso facto result in determination of the lease and
sever the relationship of lessor and the lessee in relation to the leased
property.
24. In our considered opinion, the aforementioned question has to be
decided keeping in view the provisions of Section 111 of the TP Act and
the intention of the parties to the lease — whether the parties intended
to surrender the lease on execution of such agreement in relation to the
tenanted premises or they intended to keep the lease subsisting
notwithstanding the execution of such agreement.
25. Chapter V of the TP Act deals with the leases of immovable
property. This chapter consists of Section 105 to Section 117.
26. A lease of an immovable property is a contract between the lessor
and the lessee. Their rights are governed by Sections 105 to 117 of the
TP Act read with the respective State rent laws enacted by the State.
Section 111 of the TP Act deals with the determination of lease. Clauses
(a) to (h) set out the grounds on which a lease of an immovable property
can be determined. Clauses (e) and (f) with which we are concerned
here provide that a lease can be determined by an express surrender;
in case, the lessee yields up his interest under the lease to the lessor by
mutual agreement between them whereas clause (f) provides that the
lease can be determined by implied surrender.
27. This Court in Shah Mathuradas Maganlal & Co. v. Nagappa
Shankarappa Malage considered the scope of clauses (e) and (f) of
Section 111 of the TP Act and laid down the following principle in para
19 as under: (SCC p. 665)
“19. A surrender under clauses (e) and (f) of Section 111 of
the Transfer of Property Act, is an yielding up of the term of
the lessee’s interest to him who has the immediate reversion
or the lessor’s interest. It takes effect like a contract by mutual
consent on the lessor’s acceptance of the act of the lessee. The
lessee cannot, therefore, surrender unless the term is vested
in him; and the surrender must be to a person in whom the
immediate reversion expectant on the term is vested. Implied
surrender by operation of law occurs by the creation of a new
relationship, or by relinquishment of possession. It the lessee
accepts a new lease that in itself is a surrender. Surrender
can also be implied from the consent of the parties or from
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such facts as the relinquishment of possession by the lessee
and taking over possession by the lessor. Relinquishment of
possession operates as an implied surrender. There must be
a taking of possession, not necessarily a physical taking, but
something amounting to a virtual taking of possession.
Whether this has occurred is a question of fact.”
28. It is in the light of the aforementioned legal principle, the question
involved in this case has to be examined.
29. Perusal of agreement to sell dated 13-5-1993 (Annexure P-1) shows
that though the agreement contains 9 conditions but none of the
conditions provides, much less in specific terms, as to what will be the
fate of the tenancy. In other words, none of the conditions set out in the
agreement dated 13-5-1993 can be construed for holding that the
parties intended to surrender the tenancy rights.
30. A fortiori, the parties did not intend to surrender the tenancy rights
despite entering into an agreement of sale of the tenanted property. In
other words, if the parties really intended to surrender their tenancy
rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act
while entering into an agreement to sell the suit house, it would have
made necessary provision to that effect by providing a specific clause in
the agreement. It was, however, not done. On the other hand, we find
that the conditions set out in the agreement do not make out a case of
express surrender under clause (e) or implied surrender under clause (f)
of Section 111 of the TP Act.
31. It is for this reason, the law laid down by this Court in R.
Kanthimathi [R. Kanthimathi v. Beatrice Xavier, (2000) 9 SCC 339] has
no application to the facts of this case and is, therefore, distinguishable
on facts. Indeed, it will be clear from mere perusal of para 4 of the said
decision quoted hereinbelow: (SCC p. 341)
“4. As aforesaid, the question for consideration is, whether
the status of tenant as such changes on the execution of an
agreement of sale with the landlord. It is relevant at this
junction first to examine the terms of the agreement of sale.
The relevant portions of the agreement of sale record the
following:
‘I the aforesaid Mrs Beatrice Xavier hereby agree out of my
own free will, to sell, convey and transfer the property to you
Mrs R. Kanthimathi wife of Mr S. Ramaswami, 435 Trichy
Road, Coimbatore for a mutually agreed sale consideration of
Rs 25,000.
I shall be proceeding to Coimbatore and shall execute the sale
deed and present the same for admission and registration
before the Registering Authority, accepting and acknowledge
payment of the balance of consideration of Rs 5000 (Rupees
five thousand only) at the time of registration and shall
complete the transaction of sale and conveyance as the
property demised has already been surrendered to your
possession.'” (emphasis in original)The words highlighted in italics of the agreement were
construed by their Lordships for holding that these italicised
words in the agreement clearly indicate that the parties had
really intended to surrender their tenancy rights on execution
of the agreement of sale and bring to an end their jural
relationship of the landlord and tenant.
32. As observed supra, such is not the case here because we do not
find any such clause or a clause akin thereto in the agreement dated
13-5-1993 and nor we find that the existing conditions in the agreement
discern the intention of the parties to surrender the tenancy agreement
either expressly or impliedly.
33. In the light of the foregoing discussion, we are of the considered
opinion that the tenancy in question between the parties did not result
in its determination as contemplated under Section 111 of the TP Act
due to execution of the agreement dated 13-5-1993 between the parties
for sale of the suit house and the same remained unaffected5
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notwithstanding execution of the agreement dated 13-5-1993,
34. A fortiori, the respondent (lessor) was rightly held entitled to file an
application against the appellant (lessee) under Section 21(1)(a) of the
U.P. Act and seek the appellant’s eviction from the suit house after
determining the tenancy in question.”
9. Hon’ble Supreme Court in the case of Som
Nath v. Ravinder Kumar (Civil Appeal No. 4484 of 2025)
while dealing with the question whether decree passed
in a suit for specific performance in favour of tenant
will result in cessation of landlord-tenant relationship
held that as per Section 54 of Transfer of Property Act,
a contract for sale of immovable property does not ipso
facto create any interest in or charge on such property
to the decree holder and transfer of title would take
place only after registration of the conveyance deed.
Paragraph nos. 12, 13 & 14 of the said judgment are
reproduced below:-
“12. The next submission on behalf of the respondent that in view of there
being an agreement of sale and decree of specific performance in favour of
respondent the landlord-tenant relationship between the parties ceased to
exist, is completely misconceived for the following reasons.
13. As per Section 54 of the Transfer of Property Act, 1882 a contract for
the sale of immovable property is a contract that a sale of such property
shall take place on terms settled between the parties. It does not, of itself
create any interest in or charge on such property. Thus, even if the suit for
specific performance is decreed, without a specific decree for transfer of the
possession of the suit property, the same can be enforced only when the
court directs the judgment-debtor to convey the suit property to the decree
holder. Special. It is only after registration that the transfer of title would
take place from one to the other.
14. In the instant case, admittedly, the decree for specific performance was
a conditional decree and the decree holder (the respondent herein) had
failed to fulfill the condition and, therefore, the decree could not fructify into
a conveyance. In such circumstances, there was no transfer of property
from the appellant to the respondent. Thus, there was no termination of
landlord-tenant relationship between the parties by virtue of Section 111(d)
of the Transfer of Property Act, 1882. In consequence, there was no good
reason for the High Court to set aside concurrent findings of fact returned
by the two courts below.”
10. In the present case, though petitioners filed a
suit for specific performance, but, till the time it is
decreed and sale deed is executed in their favour, the
landlord-tenant relationship is not terminated. An
agreement to sell does not in itself, create any interest
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in or charge over the property and wife of petitioner no.
2 will become owner of the shop only upon execution of
sale deed by respondent in her favour.
11. This Court concurs with the view taken by
learned Civil Judge that in summary proceedings
under U.P. Act No. 13 of 1972, the Court only needs to
determine if a landlord-tenant relationship existed.
12. For the aforesaid reasons, the writ petition
fails and is dismissed. Having regard to the fact that
the release application is pending for 5 years, learned
Civil Judge is requested to make endeavour to decide
the release application, within six months.
(Manoj Kumar Tiwari, J.)
29 July, 2026
Navin
Digitally signed by NAVEEN CHANDRA
NAVEEN CHANDRA
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND,
2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006da82a131bb4e4403d3c0a15,
postalCode=263001, st=UTTARAKHAND,
serialNumber=18167EEFB5CA8CFFD421A103819DA875643AF56D653D095C6ED9A86DAAB21CE5,
cn=NAVEEN CHANDRA
Date: 2026.07.31 20:05:18 +05’30’
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