Jharkhand High Court
Pawan Kumar Jaiswal vs Smt. Krishna Sinha on 6 April, 2026
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2026:JHHC:9668
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 72 of 2025
Pawan Kumar Jaiswal , S/o late Rajendra Chaudhary, aged about
59 years, R/o Plot No.239/B, Road No-02, Ashok Nagar, P.O. and
P.S. - Argora, District - Ranchi
... ... Defendant/Appellant/Appellant
Versus
Smt. Krishna Sinha, W/o late Satendra Kumar Sinha, aged about
88 years, R/o - Mahabir Sadan, Jai Prakash Nagar, P.O., P.S. -
Siwari, District - Siwan (Bihar)
... ... Plaintiff/Respondent/Respondent
---
CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Appellant : Mr. Rahul Kr. Gupta, Advocate
: Mr. Parth Jalan, Advocate
For the Respondent : Mr. Shashank Shekhar, Advocate
—
CAV on 07.01.2026 Pronounced on 06.04.2026
1. This 2nd appeal has been filed against the judgment dated
15.02.2025 (decree signed on 29.02.2025) passed by learned
Additional Judicial Commissioner-XIII, Ranchi in Civil Appeal No.10
of 2018 affirming the judgment and decree both signed on 29.11.2017
passed by learned Civil Judge (Senior Division)-X, Ranchi in Eviction
Title Suit No. 09 of 2009.
2. The suit for eviction was filed under the provisions of Bihar
Building (Lease, Rent, and Eviction) Control Act (hereinafter
referred to as “the BBC Act”) on ground of default in payment of rent
and also on account of personal necessity. The suit was decreed on
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both the grounds and the appeal has been dismissed. Consequently,
the defendant is the appellant before this Court.
3. The appeal was admitted vide order dated 10.09.2025 by
framing substantial question which was slightly modified vide order
dated 06.01.2026. Consequently, this 2nd appeal is to be heard on the
following substantial questions of law:
“(i) Whether the learned 1st Appellate Court while
confirming the judgment was justified in refusing to
consider Exhibit-E (the agreement of sale dated
30.10.2008) on the ground that it was an un-registered
agreement?
(ii) Whether the appellant ceased to be a tenant after the
agreement of sale dated 30.10.2008?”
4. Case of plaintiff
As per the case of the plaintiff, the husband of the plaintiff, had
inducted the defendant as tenant over the suit property as back as on
15.01.2001 and her husband expired on 10.03.2009. Thereafter, the
suit was filed alleging that the monthly rent was Rs.15,000/- and the
defendant was habitual defaulter in payment of rent and paid the rent
only up to December 2003 and thereafter, in spite of repeated requests,
neither paid rent nor validly tendered the same by taking advantage of
ill health of her husband Satendra Kumar Sinha. The plaintiff sent
legal notice to the defendant on 23.10.2009 under registered cover and
thereafter the suit for eviction was filed on account of default in rent
and personal necessity.
5. Case of defendant
The defendant contested the suit denying the relationship of landlord
and tenant and asserted that the defendant was inducted as monthly
tenant by husband of the plaintiff since 15.01.2001 at rent of Rs.
3,500/- per month and her husband entered into Memorandum of
Understanding dated 03.09.2007 intending to sell the suit property for
Rs.35 lakh and an advance of Rs. 1 lakh by cheque dated 08.10.2007
was issued in the name of Ajit Kumar Sinha, the Power of Attorney
holder of Satendra Kumar Sinha (husband of the plaintiff) under the
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instruction of Satendra Kumar Sinha. Upon encashment of the cheque,
Satendra Kumar Sinha entered into an agreement with the defendant
on 30.10.2008 incorporating the terms and conditions of the
agreement.
As per the agreement also, Rs.1 lakh was already given in advance at
the time of entering into Memorandum of Understanding dated
03.09.2007 and further Rs.4 lakh was paid by the defendant, and
consequently, the balance consideration amount of Rs.30 lakh was to
be paid and the registered deed of sale was to be executed on or before
03.09.2010. It was the case of the defendant that by virtue of the
agreement of sale dated 30.10.2008, the defendant was not required to
pay rent and he remained in possession by virtue of part performance
of the agreement of sale. The defendant also asserted that a suit for
specific performance of the agreement of sale was filed by the
defendant being Title Suit No. 474 of 2009 against the plaintiff which
was pending.
6. Issues before the trial court.
“1. Whether the suit as framed is maintainable?
2. Has plaintiff got valid cause of action for the present suit?
3. Whether Satendra Kumar Sinha husband of the plaintiff
inducted the defendant as a tenant in respect of the suit
premises on a monthly rent of Rs. 15,000/- and after the death
of Satendra Kumar Sinha the plaintiff being his widow inherited
property as the owner?
4. Whether defendant defaulted in payment of rent from January
2004 in respect of the suit premises?
5. Whether the plaintiff required the suit premises bonafide and
in good faith on her own requirement for the purpose of her
treatment and social care as there is no good medical treatment
in Siwan?
6. Whether Satendra Kumar Sinha intended to sale the property
that to the defendant for a consideration of Rs. 35,00,000/- and
accordingly memorandum of understanding was executed3
2026:JHHC:9668between Satendra Kumar Sinha and the defendant on 3.11.2007
and paid the defendant Rs. 1,00,000/- (One lac) as advance?
7. Whether after the agreement the defendant was not required
to pay rent of the premises to Satendra Kumar Sinha?
8. Whether the plaintiff is entitled for relief as prayed for in the
plaint?
9. To what relief or reliefs which the plaintiff is entitled for?”
7. The trial court decreed the suit by holding that there was
landlord tenant relationship between the parties and on ground of
personal necessity and also on the ground of default in payment of
rent with a direction upon the defendant to vacate the suit premises
within 2 months.
8. Point for determination before the 1st appellate court was as
follows:-
“Whether in view of the alleged unregistered agreement to
sale in favour of the appellant there subsists any relationship
of landlord and tenant between the respondent and the
appellant”.
9. The learned 1st appellate court dismissed the appeal. The
appellate court observed/ held that –
a. It appears that the plaintiff/ respondent has claimed that the rent of
the suit property was Rs.15,000/- whereas the defendant/appellant has
claimed that the rent of the suit premises was Rs. 3,500/- per month.
However the admitted position is that there is no documentary
evidence available to show the rent fixed. From perusal of plaint, it
appears that the respondent has not claimed arrears of rent, in such
position, the quantum of rent, whether it was Rs. 3,500/- as has been
claimed by the appellant or it was Rs. 15,000/- as has been claimed by
the respondent is of least relevance.
b. It is clear that the husband of the plaintiff was the owner of the suit
premises and after his death the plaintiff is the owner of the suit
premises. It is also admitted that the husband of the plaintiff had
inducted the defendant as a tenant in the suit premises.
c. The defendant relied upon the agreement of sale between the
defendant and the husband of the plaintiff and as per the terms of the
agreement, the appellant had paid Rs.1,00,000/- by cheque and also
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gave Rs.4,00,000/- in cash. As such, the defendant being the
prospective purchaser, the relation of the landlord and tenant ceased.
The memorandum of understanding, dated 03.09.07 and agreement of
sale, dated 30.10.08 as Exhibit A and E respectively. It was the case of
the defendant that in view of Sec. 53 A of Transfer of Property Act, the
plaintiff is not entitled for a decree of eviction. Reliance was placed
by the defendant on a decision of the Hon’ble Supreme Court, reported
in (2000) 9 SCC 339 and it was submitted that it has been held that
once there is agreement of sale between a landlord and a tenant, the
old relationship as such comes to an end and even after the
cancellation of such agreement of sale the status of tenant is not
restored as such. In other words, on the date of execution of the
aforesaid agreement of sale their status as that of landlord and tenant
changed into a new status as that of a purchaser and a seller. Placing
reliance on the aforesaid judgment it was submitted that since there is
no relation of landlord and tenant between the respondent and the
appellant the suit for eviction under the Jharkhand Building (Lease,
Rent & Eviction) Control Act. 2001 is not maintainable.
d. On the other hand, it was argued by the plaintiff that the alleged
agreement Exhibit E is an unregistered document and in view of
Section 49 in The Registration Act, 1908 the said document is
inadmissible in evidence and no reliance can be placed on the said
document. Reliance was placed on the judgment reported in
2010(1)PLJR, 317 to submit that it has been held that any document
containing contracts to transfer for consideration, any immovable
property for deriving the benefit under Section 53A of the Transfer of
Property Act must be registered if it has been executed after the
commencement of the Amending Act of 2001 and in case, such
document is not registered on or after such commencement it will have
no effect for the purpose of invoking the doctrine of part performance
under Section 53A. The doctrine of part performance protects the
right of a transferee of an agreement for sale it he has been put in
possession or continues in possession in part performance of the
contract or has done some act in furtherance of the contract. Prior to
the Amending Act of 2001 a party could claim the benefit of such
possession on the basis of the doctrine of part performance even if the
agreement for sale was not registered but the same has now been
specifically debarred by the Amending Act.
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e. The appellant has disputed the landlord and tenant relationship
between the husband of the respondent and himself on the strength of
an unregistered agreement to sale. However, a sale agreement is
compulsorily required to be registered and if the same is not
registered, then as per Section 49 of the Registration Act, it cannot be
received as evidence of any transaction affecting such property or
conferring such power. Though it may be received as evidence of a
contract in a suit for specific performance under Chapter II of the
Specific Relief Act, 1877. In above position the unregistered
agreement Ext. E can not be read in evidence in the present
proceeding. Accordingly, in absence of evidence the relationship of
respondent and the appellant remained as that of landlord and
tenant. In above view of the matter the ratio of the judgement of the
Hon’ble Apex Court reported in (2009) 9 SCC 339 is not applicable
to the present case.
f. The respondent in his written statement has stated that he had
regularly paid rent to Sri Satenra Kumar Sinha prior to execution of
agreement to sale dated 30.10.2008 whereas when he deposed in
Court as D.W.5, in his cross examination at para 42 had stated that
after September 2007 he stopped paying rent. However, he has
nowhere stated till which Month and Year he had paid rent. In above
position if the version of the appellant is believed to be true in that
case also it could be said that he is defaulter in payment of rent since
September 2007.
g. Another ground in which the respondent had sought eviction of the
appellant is personal necessity. The respondent has claimed that she
needs the suit premises for her personal necessity for her medical
needs. The witnesses of the appellant have sated categorically that the
respondent is in need of medical attention at Ranchi. The appellant
though disputed the claim of the respondent but admittedly the
respondent being an old lady she has got her medical needs and it is
her wish where she wants get her medical treatment. There is no
evidence available on record to suggest that the respondent is having
any other house at Ranchi.
h. The judgement of the learned trial court directing eviction was
sustained both on account of default in payment of rent from
September 2007 and on account of bonafide personal necessity of
the plaintiff.
10. Arguments of the appellant (defendant)
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A. The agreement which was entered into between the parties has
not been considered by the learned trial court on ground that
there was admission of relationship of landlord and tenant
between the parties and such an agreement of sale was
irrelevant. He has also submitted that the learned 1 st appellate
court has recorded that the agreement being an unregistered
document could not be relied and consequently, the aforesaid
substantial questions of law framed are to be decided by this
Court.
B. Learned counsel for the appellant has relied upon the following
judgments with respect to the substantial question of law
involved in this case.
I. (2000) 9 SCC 339 [R. Kanthimathi and another vs.
Beatrice Xavier (MRS)] Paragraph Nos.6, 7 and 8.
II. (2007) 15 SCC 783 [Mool Chand and others vs.
Nanagram and another] Paragraph No.5.
C. The learned counsel for the appellant referred to the plaint and
the written statement and while referring to the plaint, he
submits that the plaintiff claimed to be the owner and landlady
of the property and asserted that the defendant was the tenant at
monthly rent of Rs.15,000/-. It has also been stated that the
defendant was inducted as tenant by her husband, who expired
on 10.03.2009. The further case of the plaintiff was that the
defendant was a habitual defaulter in payment of rent and he
had paid rent only up to December 2003 and in spite of repeated
request, he did not pay the rent. However, after the death of her
husband, the plaintiff sent a legal notice dated 23.10.2009.
D. The plaintiff in paragraph 9 of the plaint claimed that the
defendant rendered himself liable for eviction for non-payment
of rent since January 2004. He has then referred to the written
statement and submitted that the defendant had specifically
denied the relationship of landlord and tenant and has asserted
that the suit itself was not maintainable. However, the defendant
had clearly stated that defendant was inducted as a monthly
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tenant with respect to the suit premises by the husband of the
plaintiff since 15.01.2001 but the rent was only Rs.3,500/- per
month. The husband of the plaintiff entered into negotiation
with respect to the sale of the property to the defendant and the
consideration was fixed at Rs.35,00,000/- and a memorandum
of understanding was executed on 03.11.2007 by virtue of
which the husband of the plaintiff undertook to sell the property
for the said consideration and an advance of Rs.1,00,000/- was
paid through cheque and as per the memorandum of agreement,
upon encashment of cheque, an agreement of sale was to be
executed. Consequently, the cheque was encashed and the
agreement of sale was executed on 30.10.2008 by referring to
the earlier memorandum of agreement dated 03.09.2007, and
the sale deed was to be executed on or before 03.09.2010 after
receipt of the balance consideration amount of Rs.30,00,000/-
but prior to reaching such date, the husband of the plaintiff
expired.
E. It was asserted in the written statement that the defendant was
not required to pay rent to the plaintiff and it was also asserted
that the defendant was in possession of the property in part
performance of the agreement. It was further case of the
defendant that the defendant was still ready and willing to pay
the balance consideration amount and ultimately a title suit was
filed seeking specific performance of contract numbered as
Title Suit No.474 of 2009.
F. As per the written statement in paragraph 8, it was stated that as
per the terms and conditions mentioned in the agreement dated
30.10.2008, the husband of the plaintiff acknowledged receipt
of Rs.1,00,000/- only as advance under memorandum of
understanding dated 03.09.2007 and received further advance of
Rs.3,00,000/- from the defendant and by virtue of the said
agreement, the defendant was not required to pay rent of the suit
premises to the husband of the plaintiff and it was stated that the
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relationship never existed as landlord and tenant between the
landlady and the defendant.
G. The learned counsel has then referred to both the memorandum
of agreement and the agreement of sale, which were marked as
Exhibit A and E respectively, but with objection. He has
referred to the terms and clauses of the agreement of the year
2008.
H. The learned counsel then referred to the judgement passed by
the learned trial court and submitted that issue nos.3, 4, 6 and 7
are relevant for the purposes of the adjudication of the
substantial question of law involved in this case.
I. The learned counsel while referring to the trial court judgement
has submitted that the trial court has not at all decided issue
no.7 as to whether after the agreement the defendant was not
required to pay rent of the premises to Satyendra Kumar Sinha,
the husband of the plaintiff. He has submitted that the learned
court has also not considered the impact of the MOU and the
agreement of sale.
J. The learned counsel has submitted that the learned 1st appellate
court has recorded a finding that there was a relationship of
landlord and tenant between the parties by refusing to consider
the agreement ‘Exhibit E’ by referring to Sections 17 and 49 of
the Registration Act and holding that the agreement is
inadmissible in evidence and consequently, the impact of
agreement entered into between the parties has not been
considered at all.
K. The learned counsel has submitted that the learned 1st appellate
court has completely misdirected himself while considering
Sections 17 and 49 of the Registration Act and also Section 53A
of the Transfer of Property Act. The learned counsel submits
that on the basis of the agreement, it was to be examined as to
whether there was any relationship of landlord and tenant
continued between the parties after the agreement of sale,
particularly in the light of the aforesaid clause which provided
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that by virtue of the agreement, the defendant was not required
to pay rent. He has submitted that had the agreement been
considered in the light of the judgement which was relied upon
by the defendant before the learned 1st appellate court, there
would have been no difficulty in holding that the relationship of
landlord and tenant between the parties has seized, and
consequently, the suit under the Bihar Building (Lease, Rent &
Eviction) Control Act itself was not maintainable.
L. He has further submitted that had the plaintiff filed a suit for
recovery of possession by claiming title, then the defendant
would not have been in a position to claim the protection of
Section 53A of Transfer of Property Act as admittedly the
agreement was unregistered. The learned counsel submits that
the basis of filing the suit under the BBC Act was the
relationship of landlord and tenant between the parties and
while deciding the relationship of landlord and tenant between
the parties, the agreement has been completely overlooked on
the erroneous application of law.
M. The learned counsel has submitted that though both the
memorandum of understanding and the agreement were marked
with objection, but both the courts have not disbelieved the
same and the same has not been considered only on the
technical ground that the agreement was an un-registered
document.
11. Arguments of the Respondent (Plaintiff)
I. The learned counsel appearing on behalf of the respondent-
landlord that as per the written statement, it was the specific
case of the defendant that pursuant to the MOU/agreement for
sale, the defendant continued in possession of the property in
part performance of the contract and therefore, they were not
liable to be evicted.
II. It is also an admitted fact that a suit for specific performance of
contract has been filed by the defendant with respect to the
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agreement and the suit has been numbered as Title Suit No. 474
of 2009 which is pending.
III. Learned counsel for the respondent has relied upon the
following judgments: –
i. 1999 (2) PLJR 189 [Gajendra Pd. Sinha Man Mohan Pd.
Sinha] Paragraph-4.
ii. 2003 (1) JLJR 592 [Indian Aluminium Co. Ltd. v. Regional
Labour Commr.]
iii. 2009 (3) JLJR 19, [Munmun Banerjee v. Smt. Manju Devi],
Paragraph 5 and 8.
iv. (2012) 1 SCC 656, [Suraj Lamp And Industries Private
Limited (2) Through Director v. State of Haryana and
Another] Paragraph 16, 18 and 19.
v. 2018 (4) JCR 273 (JHR) [Ashwani Kumar Paul @ Goda &
Ors. vs. Kamta Prasad & Ors.] paragraph 13, 20 and 32.
vi. (2022) 13 SCC 756 [Mohd. Raza and Another vs. Geeta
Alias Geeta Devi], Paragraph 11 and 12.
vii. AIR 2025 SC 2933 [Vinod Infra Developers Ltd. vs.
Mahaveer Lunia and Others], Paragraph 9, 9.2, 9.3, 9.4 and
9.5.
viii. Civil Appeal No. 4484 of 2025 [Som Nath vs. Ravinder
Kumar] decided on 25th of March, 2025, paragraph 13 and 14.
ix. (2019) 4 SCC 153 [H.K. Sharma vs. Ram Lal], paragraph 22,
23, 29, 30, 31, 32 and 33.
x. (2018) 7 SCC 646 [Shyam Narayan Prasad vs. Krishna
Prasad and Others], Paragraph No. 18, 19, 20, 21 and 22.
IV. While referring to paragraph 7(i), 7(v), 8 and page no. 10 of the
written statement has submitted that the relationship of landlord
and tenant stood admitted in as much as the defendant admitted
that he was inducted as tenant in the suit premises and it was the
specific case of the defendant that he was in possession of the
suit premises in part performance of the agreement and
therefore he was not required to pay rent.
V. The learned counsel for the respondent while referring to the
impugned judgement passed by the learned 1st appellate court
has in particular referred to the evidence of P.Ws. 1, 2, and 3.
He has submitted that P.W. 1 has clearly stated that the tenancy
was at Rs.15,000/- per month and it was wrong to say that the
tenancy was Rs.3,500/- per month and it was also wrong to say
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that husband of the plaintiff had entered into an agreement for
sale with respect to the suit property and had received
Rs.1,00,000/- through cheque and Rs.4,00,000/- in cash. This
witness claimed that the agreement of sale with the husband of
the plaintiff was forged. During cross-examination, he has
stated that the power of attorney holder had told him that the
defendant had paid rent till 2003 through cheque of
Rs.1,00,000/-. P.W. 2 has been examined, who is the power of
attorney, who stated that it was wrong to say that the rent was at
Rs.3,500/- and has stated that the defendant had defaulted in
payment of rent since January 2004. During his cross-
examination to the suggestion that after Memorandum of
understanding, the defendant had paid the witness Rs.1,00,000/-
by cheque as a part of consideration amount of Rs.35,00,000/-,
the witness stated that the cheque of Rs.1,00,000/- was paid on
account of rent from June 2003 to December 2003 and the
defendant had assured to give Rs.5,000/- more which he did not
pay. By referring to the evidence of P.W. 3, the learned counsel
has stated that this witness has also claimed that the agreement
of sale was forged.
VI. The learned counsel submits that the specific case from
evidence of the plaintiff witness was that the agreement of sale
as well as the memorandum of agreement were forged and
therefore no reliance can be placed upon these documents. This
is without prejudice to the submission of the learned counsel for
the respondent that the agreement of sale was compulsorily
registrable and was not admissible in evidence. The learned
counsel has also stated that the defendant had specifically
referred to the agreement of sale to seek protection under
Section 53A of the Transfer of Property Act by stating that they
came in possession of the property as part performance of the
agreement and since the agreement of sale was unregistered and
was post 2001, no such reliance could be placed by the
defendant. He submits that plea based on Section 53A of the
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Transfer of Property Act has been rightly rejected by the
learned court.
VII. The learned counsel has referred to paragraph 17 of the
appellate court’s judgement and submitted that the learned court
has rightly refused to rely upon the unregistered agreement of
sale and has rightly held that the judgement reported in (2000) 9
SCC 339 (supra) was not applicable in the present case.
VIII. The learned counsel has then relied upon the judgement passed
by this Court reported in (1999) 2 PLJR 189 (Gajendra Prasad
Sinha & Anr. Vs. Man Mohan Prasad); (2003) 1 JLJR 591
(HC) (Sheikh Sohrab Vs. Md. Kasim Ansari & Anr.); (2009) 3
JLJR 19 (supra) and has submitted that it has been clearly held
that merely because there is an agreement of sale, the same will
not terminate the relationship of landlord and tenant between
the parties and pendency of the suit seeking specific
performance of contract has no bearing in the matter. Reliance
has been placed also on the judgement reported in (2018) 4 JCR
273 (Jhr) (Ashwani Kumar Paul @ Goda & Ors. Vs. Kamta
Prasad & Ors.).
IX. The learned counsel has relied upon the judgement reported in
AIR 2025 SC 2933 (Vinod Infra Developers Ltd. Vs.
Mahaveer Lunia and Others) and has submitted that it has
been clearly held that unregistered agreement of sale cannot
under any circumstances create or convey any right, title or
interest in favour of a party under Section 54 of the Transfer of
Property Act. He has referred, in particular, to paragraph 9 of
the aforesaid judgement. He has then referred to paragraph 9.2
of the said judgement to submit that the law is well settled that
transfer of any property by way of sale can only be by deed of
conveyance and in absence of mere conveyance, no right, title
or interest in immovable property can be transferred and it has
also been held that any contract of sale which is not deed of
conveyance would fall short of the requirement of Sections 54
and 55 of the Transfer of Property Act and will not confer any
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title nor transfer any interest in any property except to the
limited right granted under Section 53 of the Transfer of
Property Act. The learned counsel has submitted that
unregistered agreement of sale can be used for the purposes of
specific performance of contract as well. On the same point, the
learned counsel has then referred to the judgement passed by
Hon’ble Supreme Court in the case of Suraj Lamp (supra) and
has referred to paragraphs 18 and 19 of the said judgement. On
the similar proposition, the learned counsel has then referred to
the judgement passed in Civil Appeal No.4484 of 2025 (Som
Nath VS. Ravinder Kumar) decided on 25.03.2025 and has
referred to paragraphs 13 and 14.
X. The learned counsel has heavily relied upon the judgement
passed by Hon’ble Supreme Court reported in (2019) 4 SCC
153 (H.K Sharma Vs. Ram Lal) and submitted that the facts
involved in the said case was almost similar as that of the
present case and the Hon’ble Supreme Court has specifically
noted that there was no clause in the agreement discerning the
intention of the parties to surrender the tenancy agreement
either expressly of impliedly.
XI. He has submitted that the judgement of Hon’ble Supreme Court
in the case of (2019) 4 SCC 153 (Supra) assumes importance in
view of the fact that in the present case also, the terms and
conditions of the agreement do not indicate that there would be
a termination of tenancy by virtue of the agreement, rather the
agreement reveals that the tenancy did not terminate.
XII. The learned counsel submits that even if the clause of
agreement is taken into consideration, then also there is at best
deferment in payment of rent in terms of the agreement, but the
learned courts have given concurrent finding on the bonafide
requirement of the landlady which is a distinct ground for
eviction under the BBC Act. He submits that there being no
intention of termination of tenancy between the parties and even
if the ground of default is not sustained, the eviction on account
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of bonafide necessity will still be sustainable to uphold the
decree of eviction of the suit property.
12. Rejoinder arguments of the appellant
a) The learned counsel for the appellant, in response, has referred
to the plaint at paragraph 5, which is quoted as under:
“5. That the defendant was a habitual defaulter in
payment of rent. He paid rent upto December 2003
and thereafter inspite of repeated request the
defendant neither paid the rent nor has he validly
tendered the same. As a matter of fact the husband
of the plaintiff left Ranchi and taking advantage of
his absence and his ill health the defendant
completely stopped paying rent.”
b) By referring to the aforesaid statement made in paragraph 5, the
learned counsel submits that it was the specific case of the
plaintiff that the defendant was a habitual defaulter in payment
of rent and he paid the rent only till December 2003 and
thereafter inspite of repeated request, the defendant neither paid
the rent nor he had validly tendered the same. The learned
counsel submits that when the plaintiff witness was confronted
with the payment of Rs.1,00,000/- through cheque in the year
2007, which was a part of the consideration amount, they tried
to wriggle out by stating that the payment was made in the year
2007 for the period from June 2003 to December 2003. The
learned counsel submits that it was clearly an afterthought.
c) While distinguishing the judgement reported in 1999 (2) PLJR
189 (Gajendra Prasad Sinha & Anr. Vs. Man Mohan Prasad),
the learned counsel for the appellant has submitted that the
judgement passed by Hon’ble Supreme Court reported in (2000)
9 SCC 339 (R. Kanthimathi and Anr. Vs. Beatrice Xavier) was
not available for consideration at that point of time.
d) The learned counsel has also submitted that the judgement
relied upon by the Hon’ble Supreme Court in the judgement
reported in (2000) 9 SCC 339 (supra) i.e. judgement reported in
(1973) 2 SCC 197 (Arjunlal Bhatt Mall Gothani and Ors. Vs.
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Girisih Chandra Dutta and Anr.), was not placed before the
court.
e) With respect to the judgement reported in (2003) 1 JLJR 591
(HC) (Sheikh Sohrab Vs. Md. Kasim Ansari & Anr.), the
learned counsel has submitted that in this case also, the
aforesaid two judgements of the Hon’ble Supreme Court have
not been cited.
f) With respect to the judgement reported in (2009) 3 JLJR 19
(Munmun Banerjee and Others Vs. Smt. Manju Devi), the
learned counsel has submitted that the judgement of Sheikh
Sohrab (supra) has been relied upon in the said judgement and
the judgement passed in the case reported in (2000) 9 SCC 339
(supra) has been considered but distinguished on facts, holding
that the agreement has become unenforceable. Even the
judgement passed by Hon’ble Supreme Court reported in (2002)
3 SCC 676 (Shrimant Shamrao Suryavanshi and Another Vs.
Pralhad Bhairoba Suryavanshi and Ors.) has been
distinguished in the said judgement.
g) The learned counsel for the appellant has also referred to the
judgement passed by this Court in SA No.80 of 2011 (Om
Prakash Kesri Vs. Chintu Devi and Ors.) decided on
20.06.2025 and submitted that though in the facts of the said
case, there was a clear stipulation that the tenant would continue
to pay rent, and therefore, this Court held that there was a
continuation of relationship of landlord and tenant between the
parties, but in the present case, there is a clear stipulation in the
agreement that the tenant would discontinue to pay rent, and
therefore, on this distinguishing fact and on the principles of
law, the case would be covered by S.A. No.80 of 2011 on the
point of seizure of relationship of landlord and tenant between
the parties which was decided under substantial question of law
no.(B) in the said case.
h) With respect to the judgement reported in (2012) 1 SCC 656
(Suraj Lamp and Industries Vs. State of Haryana), he has
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referred to paragraph 19 of the said judgement to submit that
there is no dispute that according to Transfer of Property Act,
an agreement of sale whether with or without possession is not
a conveyance. He submits that accordingly the agreement itself
was not compulsorily registrable.
i) With respect to the judgement passed by this Court reported in
(2009) 3 JLJR 19 (supra), the learned counsel has referred to
paragraph 6 of the said judgement to submit that it was
specifically noticed by the learned trial court that there was
nothing in the agreement of sale to show that the petitioners of
the case were not required to pay rent after the agreement, and
therefore, on the basis of such agreement, it could not be held
that petitioners of the said case acquired any right, title and
interest over the property and their status and possession
changed and they continued in possession as tenant and not as
owner on the basis of such agreement and there existed a
relationship of landlord and tenant between the parties.
j) The learned counsel has referred to the definition of landlord
and tenant as defined under the BBC Act and has further
submitted that as per clause in the agreement, the defendant was
not supposed to pay rent from October 2007 and clause 6 of the
agreement would trigger only when the defendant refused to
perform in terms of the agreement. He submits that the
defendant never refused to perform and before the expiry of the
period of agreement a suit for specific performance of contract
was already filed as the husband of the plaintiff, who entered
into the agreement had expired and the plaintiff, his wife,
refused to convey the property in terms of the agreement.
Findings of this Court
13. It is not in dispute during the course of argument that the
defendant was inducted as a tenant sometimes in the year 2001-02 and
was in possession of the suit property. The suit for eviction was filed on
ground of default in payment of rent and also on account of personal
necessity.
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14. As per the defendant, one Memorandum of Understanding dated
03.09.2007 was entered into between the parties whereby the landlord
agreed to sell the suit property to the defendant for a consideration of
Rs.35 lakhs, out of which Rs.1 lakh was paid by cheque and upon
encashment of the cheque, the MOU was followed by an agreement of
sale dated 30.10.2008 and payment of Rs.4 lacs as a part of the
consideration amount. As per the defendant, the rent was paid till
September, 2007 i.e. till the month of MOU and subsequently, the
defendant stopped making payment of rent.
15. So far as the plaintiff is concerned, it was their case that the
defendant had paid rent till December, 2003 and the plaint neither
disclosed about the MOU nor disclosed about the agreement of sale and
the defendant contended at the time of evidence that the aforesaid
amount of Rs.1 lakh paid through cheque was adjusted against the
arrears of rent till December 2003 and the defendant did not pay rent
from January, 2004.
16. There are concurrent findings of both the courts that the defendant
did not pay rent at least from September 2007 and the plaintiff was in
bonafide need of the suit premises and the suit was decreed both on
account of default in payment of rent and on bonafide necessity of the
plaintiff. No substantial question of law has been framed on these two
points and essentially the substantial questions of law relate to
admissibility and relevance of the unregistered agreement of sale
(Exhibit- E) and as to whether the relationship between the parties
continued to be that of land lord and tenant after the agreement dated
30.10.2008 (Exhibit- E). If it is held that there was no relationship of
land lord and tenant, there would naturally be no question of default in
payment of rent and no question of personal necessity of the plaintiff and
in such circumstances, the decree of eviction has to be set-aside. If it is
held otherwise, the decree has to be sustained as no substantial question
of law has been framed with respect to default and personal necessity.
17. It is not in dispute that Satendra Kumar Sinha, the husband of
the plaintiff, had inducted the defendant as tenant over the suit
property as back as on 15.01.2001. Satendra Kumar Sinha expired on
10.03.2009. Thereafter, his wife filed the suit alleging that the
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monthly rent was Rs.15,000/- and the defendant was habitual defaulter
in payment of rent and paid the rent up to December 2003 and
thereafter, in spite of repeated requests, neither paid rent nor validly
tendered the same by taking advantage of ill health of her husband
Satendra Kumar Sinha.
18. The plaintiff claimed to have sent legal notice to the defendant
on 23.10.2009 under registered cover, stating that the defendant had
defaulted in payment of rent and that she required the suit property for
her personal necessity. It was specifically asserted that the defendant
had rendered himself liable for eviction for non-payment of rent since
January 2004.
19. The defendant contested the suit denying the relationship of
landlord and tenant and asserted that the defendant was inducted as
monthly tenant by Satendra Kumar Sinha since 15.01.2001 at rent of
Rs. 3,500/- per month. Satendra Kumar Sinha entered into
Memorandum of Understanding dated 03.09.2007 intending to sell the
suit property for Rs.35 lakh and an advance of Rs. 1 lakh by cheque
dated 08.10.2007 was issued in the name of Ajit Kumar Sinha, the
Power of Attorney holder of Satendra Kumar Sinha under the
instruction of Satendra Kumar Sinha. Upon encashment of the cheque,
Satendra Kumar Sinha entered into an agreement with the defendant
on 30.10.2008 incorporating the terms and conditions of the
agreement.
20. As per the agreement, Rs.1 lakh was already given in advance
at the time of entering into Memorandum of Understanding dated
03.09.2007 and further Rs.4 lakh was paid by the defendant, and
consequently, the balance consideration amount of Rs.30 lakh was to
be paid and the registered deed of sale was to be executed on or before
03.09.2010. It was the case of the defendant that by virtue of the
agreement of sale dated 30.10.2008, the defendant was not required to
pay rent and he remained in possession by virtue of part performance
of the agreement dated 30.10.2008 (Exhibit- E). The terms and
conditions of the agreement relevant for the present case in the light of
the substantial question of law are quoted as under:
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“Whereas, the terms and expression ……………………………….
……………………………………….
Where as the first party has constructed one pucca house over the said plot
as such the said plot no. 239/B which is also known and called house No.
239/B and handed over the said house to the second party on 15.01.2001 on
monthly rent of Rs. 3500/- verbally as tenant.
Whereas, the second party is residing and maintaining the house and
regularly paid the monthly rent in cash to the first party till September 2007
without obtaining any receipt from the first party, however, this fact has been
admitted and accepted herewith.
……………………………………
Whereas on 03.09.2007 first party made an MOU and expressed the desire to
sell the said plot with house and fixtures at the total cost of Rs. 35,00,000/-
(Rs. Thirty five Lakhs) only, to the second party and second party accepting
the proposal on 03.09.07 handed over an account payee cheque no. 297779
dt. 08.10.2007 of Rs. one Lakh of Bank of Maharashtra on the direction of
first party, payable to one Ajit Kumar Sinha, a faithful person of First party,
who incashed the said cheque on 08.10.2007 itself and withdrawn Rs. one
Lakh from the CCA account no 39 of the second party and handed over the
said amount to the first party, is an admitted fact and affirmed by the first
party, herewith too.
Whereas, as per terms of the MOU dt. 03.09.2007, the MOU shall prevail
further, only after encashment of Rs. One Lakh from the account of second
before 15.10.2007, since the said terms has been fulfilled by the second party
within prescribed time and further terms of payment of 10% of total cost
agreed between the parties has been subsequently paid Rs.4,00,000/- (Four
lakh Rupees) only as advance by the second party to the first party in cash
and said amount has been received by the first party from Ajit Kumar Sinha,
it is accepted and affirmed herewith. it is made clear that after September
2007 the monthly rent of the said premises shall not be chargeable from the
second party as the advance amount against the total cost of the premises
of plot No. 239/B with house and fixtures has been received by the first
party, and the second party has made maintenance cost to the services
housing Co-operative society by A/C payee cheque in the account of the
said Co-operative standing in the name of first party.
After accepting the aforesaid facts, both parties agreed to execute this
agreement to sell on the following terms and conditions:-
1. That the remaining amount Rs. 30 Lakhs against the total cost Rs. 35
Lakhs of plot no. 230/B with building and fixtures must be paid on or
before 03.09.2010 to the first party by the second party and the properties
shall be legally transferred on the payment of full and final payment,
immediately, thereafter.
2. That the second party shall remain in possession over the properties and
shall maintain the building and its fixture in well manner, no alteration or
demolition of any part or portion shall be done by the second party without
prior written permission of the first party.
3. That the prescribed maintenance charges, electricity, telephone bills etc.
shall be borne by the second party.
4. That the second party shall have no right to transfer or make any ‘type of
title deed in favour of anybody nor will have right to give on rent to
anybody.
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5. That if any party have no interest in selling or purchasing the properties
in question, in that case, at least three months notice must be served to
other party, in advance.
6. That, if the first party declines to sell, he will returned the accepted
amount with 18% interest per annum to the second party and if the second
party declines to purchase the properties, then he has to pay monthly rent
@ Rs. 10,000/- per month to the first party, form October 2007 till the date
of vacation of the building in question.
7. …………………………………………
21. However, before the cut-off date for execution of the registered
deed of sale, i.e. 03.09.2010 could be reached, Satendra Kumar Sinha
died on 10.03.2009. It was the case of the defendant that the defendant
repeatedly requested the plaintiff (wife of late Satendra Kumar Sinha)
to receive balance consideration amount and to execute the registered
deed of sale in their favour, but the plaintiff refused and ultimately a
suit for specific performance of agreement was instituted, which was
numbered as Title Suit No.474 of 2009, which was pending.
22. The defendant denied being a habitual defaulter in payment of
rent and that he had paid rent only up to December 2003. The
defendant denied the receipt of legal notice dated 23.10.2009, and
asserted that prior to November 2008, the rent with respect to the suit
premises was received by the husband of the plaintiff. Meaning
thereby, as per the case of the defendant, prior to execution of
agreement of sale dated 30.10.2008, the entire rent had already been
paid till the month of October 2008. By referring to the agreement of
sale and its terms and conditions, it was asserted by the defendant that
by virtue of the agreement, the defendant was not required to pay rent
of the suit premises to Satendra Kumar Sinha. The defendant further
asserted that there never existed any relationship of landlord and
tenant between the plaintiff on one hand and the defendant on the
other and that the rent of the suit premises was never Rs.15,000/- per
month and the plaintiff be put to strict proof of the allegations made in
the plaint.
23. This Court finds that the plaintiff did not mention about the
memorandum of agreement of the year 2007, receipt of payment and
cheque of Rs.1 lakh in the year 2007 and also the agreement of sale
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dated 30.10.2008 and these facts were brought on record by the
defendant.
24. It is important to note that in spite of the fact that memorandum
of understanding and the agreement of sale were clearly mentioned by
the defendant in the written statement, the plaintiff did not take any
steps to amend the plaint and challenge these documents. But during
the course of evidence, the plaintiff claimed that these documents are
forged and fabricated. However, the learned court has not recorded
any finding that memorandum of understanding or the agreement of
sale were forged and fabricated and no such substantial question of
law has been framed. The fact also remains that a suit for specific
performance of agreement of sale dated 30.10.2008 has been filed by
the defendant against the present plaintiff which is pending.
1st substantial question of law. – Whether the learned 1st Appellate
Court while confirming the judgment was justified in refusing to
consider Exhibit-E (the agreement of sale dated 30.10.2008) on the
ground that it was an un-registered agreement?
25. Section 17 of the Registration Act deals with the documents for
which registration is compulsory. Section 17 (1 – A) was introduced
vide Act 48 of 2001, w.e.f. 24.09.2001, which provides that the
documents containing contract to transfer for consideration, any
immovable property for the purposes of Section 53A of Transfer of
Property Act is required to be registered and if such documents are not
registered, they shall have no effect for the purposes of Section 53A.
17. Documents of which registration is compulsory.–(1)
The following documents shall be registered, if the
property to which they relate is situate in a district in
which, and if they have been executed on or after the date
on which, Act No. XVI of 1864, or the Indian Registration
Act, 1866, or the Indian Registration Act, 1871, or the
Indian Registration Act, 1877, or this Act came or comes
into force, namely:–
(a) ….;
4 [(1-A) The documents containing contracts to transfer
for consideration, any immovable property for the
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purpose of section 53-A of the Transfer of Property Act,
1882 (4 of 1882) shall be registered if they have been
executed on or after the commencement of the
Registration and Other Related laws (Amendment) Act,
2001 (48 of 2001) and if such documents are not
registered on or after such commencement, then, they
shall have no effect for the purposes of the said section
53A.]
26. Section 49 of the Registration Act deals with effect of non-
registration of documents required to be registered, which reads as
under:
“49. Effect of non-registration of documents required to
be registered.–No document required by section 17 1 [or
by any provision of the Transfer of Property Act, 1882 (4
of 1882)], to be registered shall– (a) affect any
immovable property comprised therein, or (b) confer any
power to adopt, or (c) be received as evidence of any
transaction affecting such property or conferring such
power, unless it has been registered:
Provided that an unregistered document affecting
immovable property and required by this Act or the
Transfer of Property Act, 1882 (4 of 1882), to be
registered may be received as evidence of a contract in a
suit for specific performance under Chapter II of the
Specific Relief Act, 1877 (3 of 1877) , the words, figures
and letter “or as evidence of part performance of a
contract for the purposes of section 53A of the Transfer of
Property Act, 1882 (4 of 1882)” omitted by Act 48 of 2001
or as evidence of any collateral transaction not required
to be effected by registered instrument.”
27. Upon conjoint reading of Sections 17 and 49 of the Transfer of
Property Act, it is clear that for the purposes of claiming benefit under
Section 53A of Transfer of Property Act, the contract to transfer
immovable property for consideration is required to be registered and
if it is not registered, it may be received as evidence of a contract in a
suit for specific performance or as evidence of any collateral
transaction not required to be effected by a registered instrument.
28. Section 53-A of Transfer of Property Act reads as under:
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“53-A. Part performance.–Where any person contracts
to transfer for consideration any immoveable 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 the words “the contract though
required to be registered, has not been registered, or”
omitted by Act 48 of 2001, s. 10 (w.e.f. 24-9-2001)., or,
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.”
29. In the judgement passed by Hon’ble Supreme Court reported in
(2002) 3 SCC 676 (supra), the Hon’ble Supreme Court has considered
the necessary conditions required to be fulfilled if a transferee wants
to defend or protect his possession under Section 53A of the Transfer
of Property Act. The Hon’ble Supreme Court has further held that if
the conditions enumerated under Section 53A of the Transfer of
Property Act are satisfied, then the law of limitation does not comes in
the way of the defendant taking the plea under Section 53A of
Transfer of Property Act, even though a suit for specific performance
of contract is barred by limitation. Paragraphs 16 and 17 of the
aforesaid judgement is quoted as under:
“16. But there are certain conditions which are required
to be fulfilled if a transferee wants to defend or protect his
possession under Section 53-A of the Act. The necessary
conditions are:
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(1) there must be a contract to transfer for consideration
of 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. We are, therefore, of the opinion that if the conditions
enumerated above are complied with, the law of limitation
does not come in the way of a defendant taking plea under
Section 53-A of the Act to protect his possession of the suit
property even though a suit for specific performance of a
contract is barred by limitation.”
30. In the judgement passed by the Hon’ble Supreme Court in the
case of Suraj Lamp (supra), it has been clearly held in paragraph 16
that Section 54 of the Transfer of Property Act makes it clear that a
contract of sale i.e. an agreement of sale does not of itself creates any
interest in or charge on such property and the title over the property
passes only on execution of conveyance. It has also been held that
protection provided under Section 53A of the Transfer of Property Act
to the proposed transferee arising out of agreement of sale is a shield
only against the transferor and it disentitles the transferor from
disturbing the possession of the proposed transferee, who is put in
possession in pursuant to such agreement. It has nothing to do with the
ownership as the proposed transferor remains the owner of the
property till it is legally conveyed by executing a registered deed in
favour of the transferee. The conclusion drawn by the Hon’ble
Supreme Court in paragraphs 18 and 19 is quoted as under:
18. It is thus clear that a transfer of immovable property by
way of sale can only be by a deed of conveyance (sale deed).
In the absence of a deed of conveyance (duly stamped and
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registered as required by law), no right, title or interest in an
immovable property can be transferred.
19. Any contract of sale (agreement to sell) which is not a
registered deed of conveyance (deed of sale) would fall short
of the requirements of Sections 54 and 55 of the TP Act and
will not confer any title nor transfer any interest in an
immovable property (except to the limited right granted
under Section 53-A of the TP Act). According to the TP Act,
an agreement of sale, whether with possession or without
possession, is not a conveyance. Section 54 of the TP Act
enacts that sale of immovable property can be made only by
a registered instrument and an agreement of sale does not
create any interest or charge on its subject-matter.
31. In the judgement passed by Hon’ble Supreme Court in the case
of Vinod Infra Developers Ltd. -vs- Mahaveer Lunia and Others reported
in 2025 SCC OnLine SC 1208, the Hon’ble Supreme Court held that
Sections 17 and 49 of the Registration Act clearly states that un-
registered documents required to be registered are inadmissible in
evidence for the purpose of conveying title or completing the sale
transaction and can only be admitted for collateral purposes or in a
suit for specific performance of contract.
32. Upon considering the aforesaid judgments and upon conjoint
reading of the provisions of Sections 17, 49 of the Registration Act
and Section 53A of Transfer of Property Act as it stands with effect
from 24.09.2001, there can be no doubt that if a person seeks to
protect his possession against the true owner pursuant to a contract for
sale and if the other conditions prescribed under Section 53A is
satisfied, then the agreement to sale is compulsorily registrable, failing
which, the protection granted under Section 53A of Transfer of
Property Act to the defendant is not available.
33. Admittedly, in the present case, the agreement of sale is after
24.09.2001 and in order to seek protection under Section 53A of
Transfer of Property Act, the same was required to be compulsorily
registrable in view of the aforesaid provisions of Section 17 of the
Registration Act. However, the consequence of non-registration is
required to be seen in the light of Section 49 of the Registration Act.
26
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This is in view of the fact that the defendant is seeking to protect his
possession by claiming part performance of agreement of sale which
is referable to Section 53A of Transfer of Property Act.
34. In view of the aforesaid provisions of law, there can be no
doubt that the defendant in the present case cannot seek protection
under Section 53A of Transfer of Property Act for want of registration
of the agreement of sale.
35. However, at the same time, it cannot be said that the agreement
of sale is of no consequence in the present case.
36. The present case arises out of a suit for eviction under the
Special Act dealing with the landlord-tenant relationship under the
JBC Act, and therefore, the consequence of the agreement of sale,
which was exhibited without any objection, is required to be seen for
the purpose as to whether the same can be looked into for collateral
purposes, that is for ascertaining as to whether the relationship
between the parties changed from that of land lord and tenant to seller
and buyer pursuant to the agreement of sale (Exhibit-E).
37. There is no doubt that by virtue of agreement of sale, no title is
created, declared, assigned limited or extinguished either in the
present or in future. The agreement of sale generally contains a recital
as to the pre-existing title and also a promise to execute a sale deed in
future so as to confer title by such sale deeds which are yet to be
executed. However, the consequence of agreement of sale has to be
ascertained from the terms and conditions of the agreement and can
certainly be taken into consideration for collateral purposes to
determine the change in the nature of relationship between the parties.
38. The proceeding under Jharkhand Buildings (Lease, Rent and
Eviction) Control Act, 2000 (JBC Act) is essentially a dispute with
respect to land lord tenant relationship under the JBC Act and is not a
title suit and the materials are to be primarily considered to arrive at a
finding on the point of landlord-tenant relationship, if such a
relationship is in dispute. The point to be considered is whether the
unregistered agreement of sale dated 30.10.2008 (Exhibit-E) could
have been taken into consideration by the learned court and if
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considered, what will be the bearing of such agreement of sale dated
30.10.2008 (Exhibit-E). The 1st appellate court has refused to consider
the agreement of sale dated 30.10.2008 (Exhibit-E) for want of
registration.
39. In the judgement passed by the Hon’ble Supreme Court in Mool
Chand v. Nanagram, (2007) 15 SCC 783, it has been held that the
agreement of sale is not compulsorily registrable and it can be admitted
in evidence. Paragraph 5 of the said judgement is quoted as under:-
“5. Such a document does not fall within the category of any
of the documents listed in clauses (a) to (e) of sub-section
(1) of Section 17 of the Registration Act, 1908. No title is
created, declared, assigned, limited or extinguished, whether
in the present or in future, by the said document dated 7-12-
1991. The document merely contains a recital as to a pre-
existent title and also a promise to execute sale deeds in
future so as to confer title by such sale deeds which are yet
to be executed consistently with the share of the brothers in
the property. The trial court clearly erred in holding the
document to be compulsorily registrable. The refusal of the
trial court to admit the document in evidence has occasioned
a failure of justice insofar as the appellants are concerned.”
The said judgement relates to the agreement of sale pre-2001.
However, by virtue of amendment in Registration Act and Transfer of
Property Act in 2001, the agreement of sale became inadmissible for
claiming protection under Section 53A of the Transfer of Property Act
but still remained admissible for collateral purposes.
40. This Court is also of the considered view that the agreement of
sale as such is not compulsorily registrable as the same neither creates
nor extinguishes any right or title over the property, but is required to
be registered in order to claim benefit of part performance of contract
under Section 53A of the Transfer of Property Act. The unregistered
agreement of sale could not be looked into to give protection to the
defendant under Section 53 A of Transfer of Property Act, but was
certainly required to be looked into for the purposes of finding out as
to whether the relationship between the parties changed from land
lord and tenant to seller and buyer so as to exclude the very
applicability of the JBC Act seeking remedy of eviction on account of
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default in payment of rent and bonafide personal necessity of the
plaintiff.
41. There is no dispute that from 24.09.2001 by virtue of
amendment in Sections 17, 49 of the Registration Act and Section
53A of the Transfer of Property Act, the agreement of sale with
respect to immoveable properties are compulsorily registerable in
order to claim protection of part performance of the agreement under
Section 53A of Transfer of Property Act.
42. Admittedly, the agreement of sale involved in this case is post
24.09.2001, i.e., 30.10.2008. Further, the defendant was taking a plea
of protection under Section 53A of the Transfer of Property Act to
resist eviction, but the same being unregistered could not be taken into
consideration to seek protection under Section 53A of the Transfer of
Property Act. However, the same can certainly be looked into and
ought to have been looked into from the point of view of finding out
the nature of possession so as to arrive at a finding as to whether the
relationship between the parties continued as land lord and tenant or
became that of seller and purchaser after agreement of sale dated
30.10.2008 (Exhibit-E).
43. Thus, the learned 1st appellate court while confirming the
judgement of the learned trial court was justified in not taking the
agreement of sale dated 30.10.2008 (Exhibit-E) into consideration for
giving protection to the defendant under Section 53A of the Transfer
of Property Act for want of registration but ought to have considered
the same for collateral purpose of finding out as to whether the
relationship between the parties continued as land lord and tenant or
had become that of seller and purchaser after agreement of sale dated
30.10.2008 (Exhibit-E).
44. The 1st substantial question of law is accordingly answered in
favour of the appellant (defendant) and against the respondent
(plaintiff) in the aforesaid manner. The impact of the Exhibit E will
be considered while answering the 2nd substantial question of law.
2nd substantial question of law. – Whether the appellant ceased to be a
tenant after the agreement of sale dated 30.10.2008?
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45. Now, having held as aforesaid, it has to be examined taking into
consideration the materials on record and also the unregistered
agreement of sale dated 30.10.2008 (Exhibit-E) as to the nature of
possession of the defendant and as to whether there existed a
relationship of land lord and tenant between the parties inspite of
agreement of sale dated 30.10.2008 (Exhibit-E) or their relationship
changed into that of a seller and buyer.
46. Upon perusal of the Agreement of Sale dated 30.10.2008
(Exhibit E), this Court finds that as per agreement, the rent was not to
be paid after September 2007 as the advance amount against total cost
of suit premises was received by Satendra Kumar Sinha (husband of
the plaintiff), and the defendant had paid maintenance cost to the
Services Housing Cooperative Society through the said account payee
cheque. The extract from the agreement is quoted as under:-
it is made clear that after September 2007 the monthly rent of the
said premises shall not be chargeable from the second party as the
advance amount against the total cost of the premises of plot No.
239/B with house and fixtures has been received by the first party,
and the second party has made maintenance cost to the services
housing Co-operative society by A/C payee cheque in the account
of the said Co-operative standing in the name of first party
47. As per the terms and conditions of the Agreement of Sale dated
30.10.2008 (Exhibit E), in case, Satendra Kumar Sinha, declined to
sell, he was to return the accepted amount with 18% interest per
annum to the defendant, and in case, the defendant declined to
purchase the property, then he had to pay monthly rent at the rate of
Rs. 10,000/- per month to Satyendra Kumar Sinha from October 2007
till the date of eviction of the building in question. The extract from
the agreement is quoted as under:-
6. That, if the first party declines to sell, he will returned the
accepted amount with 18% interest per annum to the second party
and if the second party declines to purchase the properties, then he
has to pay monthly rent @ Rs. 10,000/- per month to the first party,
form October 2007 till the date of vacation of the building in
question.
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48. So far as the judgment relied upon by the appellant reported in
(2000) 9 SCC 339 (Supra) is concerned, the point for consideration in
the said case was, whether on the execution of agreement of sale by
the landlord with the tenant and the landlord having received
substantial portion of sale consideration, the relationship of landlord-
tenant inter se between them ceased and fresh rights and obligations
flow from the said agreement.
In the said case, the terms and conditions of the agreement of sale
have been quoted in the said judgment itself wherein it was clearly
mentioned that the balance consideration will be paid at the time of
registration and the landlady shall complete the transaction of sale and
conveyance and the property demised was already been surrendered to
possession of the tenant. It was the case of the tenant that after
entering into the agreement, the landlady accepted Rs. 20,000/-
confirming delivery of possession and in this context, there was clear
intent of the landlady to change the nature of relationship between the
parties and much emphasis was laid on the words “already been
surrendered” which found place in the agreement involved in the said
case.
In this background, the Hon’ble Supreme Court held that any jural
relationship between two persons could be created through agreement
and similarly could be changed through agreement subject to the
limitations under the law. The Hon’ble Supreme Court further noted
that earlier when the appellants were inducted into tenancy it only
meant that both agreed for a relationship of landlord and tenant and
later on, when the landlord decided to sell the property to the tenant
and the tenant agreed by entering into agreement, they by their
positive act changed their relationship as purchaser and seller.
Paragraphs 6 to 9 of the aforesaid judgment are quoted as under:
“6. Any jural relationship between two persons could be
created through agreement and similarly could be changed
through agreement subject to the limitations under the law.
Earlier when the appellants were inducted into tenancy it
only means both agreed that their relationship was to be
that of landlord and tenant. Later when the landlord31
2026:JHHC:9668decided to sell this property to the tenant and the tenant
agreed by entering into agreement, they by their positive
act changed their relationship as purchaser and seller.
When the seller-landlord accepts the sum, he actually acts
under this agreement. This acceptance preceded by
agreement of sale changes their relationship. This is how
they intended. Once accepting such a change, their
relationship of landlord-tenant ceases.
7. This Court in Arjunlal Bhatt Mall Gothani v. Girish
Chandra Dutta (1973) 2 SCC 197 held as under:
“The appellants were tenants in the premises of the
respondent landlord and three suits, including an
eviction suit, were pending against them. By an
agreement between the appellants and the respondent,
the respondent agreed to sell the whole property to the
appellants for a certain sum to be paid to him by equal
instalments. Clause (5) of the agreement provided that
in case of default of any instalment, the agreement for
sale would stand cancelled and if the purchasers failed
to pay the defaulted instalments within one month’s
notice the payments made would stand forfeited and
purchasers would make over possession of the
property to the vendor.”
“Under clause (5) of the agreement the question of
giving notice arises only if the vendor wanted to forfeit
the instalments paid by the purchaser. Not even one
instalment having been paid the question of forfeiture
does not arise and no notice was necessary for
cancelling agreement. It stood automatically
cancelled. It was sought to be argued before us that
once the agreement stood cancelled the appellants
stood restored to their original position as tenants and
the suit could not be filed without giving notice under
the Transfer of Property Act. We are of opinion that
when the agreement, dated June 7, 1959, was entered
into the old relationship of landlord and tenant came
to an end. The rights and liabilities of the parties have
to be worked out on the basis of that agreement.”
8. This decision clearly spells out that once there is
agreement of sale between a landlord and a tenant, the old
relationship as such comes to an end. It goes on to record
that even after the cancellation of such agreement of sale
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the status of tenant is not restored as such. In other words,
on the date of execution of the aforesaid agreement of sale
their status as that of landlord and tenant changed into a
new status as that of a purchaser and a seller.
9. Thus, within this legal premises, the submission by
learned counsel for the respondent for revival of their old
relationship of landlord and tenant when she repudiates
this agreement by sending back to the tenant Rs. 20,000
through a cheque (which according to the appellant was
not encashed) cannot be accepted. So, we have no
hesitation to reject the same. Every conduct of the
landlady right from the date of entering into agreement of
sale, accepting money towards the sale consideration,
delivering possession in lieu of such agreement all clearly
indicates and has to be construed in law that she
repudiated her old relationship of landlord and tenant.
Thus, after this parties enter into a new cloak of seller and
purchaser and their relationship is to be governed under
the said terms of the agreement. Every right and obligation
thereafter would flow from it. Even if parties under the
agreement of sale do not perform their obligations, remedy
may be availed in law as permissible under in law. Hence,
we have no hesitation to hold that the courts below
including the High Court committed error in holding that
the tenant committed wilful default. When the appellant is
no more the tenant how can non-payment be construed as
wilful default?” (emphasis supplied)
49. After considering the conduct of the landlady and also the
agreement of sale involved in the said case, it has been held in the
aforesaid judgment that once accepting the change of relationship, the
relationship of landlord and tenant ceases.
50. Thus, even as per the aforesaid judgement the fact as to whether
the relationship of landlord and tenant changed to that of seller and
buyer depends upon the terms of the agreement of sale and also
conduct of the parties.
51. The said judgement does not help the appellant (defendant) in
any manner. Upon perusal of the terms and conditions of the
agreement, this Court is of the considered view that Satyendra Kumar
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Sinha and the defendant never intended to permanently sever their
relationship as landlord and tenant and acquire the status as seller and
purchaser. The agreement revealed that inspite of the agreement of
sale (Exhibit-E) the husband of the plaintiff had the option not to sell
the property and the defendant had the option not to buy the property
and consequences for their respective option was also prescribed in
the agreement itself. If the defendant refused to buy the property,
defendant had to pay monthly rent @ Rs.10,000/- per month to the
husband of the plaintiff from October 2007 and if the husband of the
plaintiff refused to sell, he was to return the part paid money with
interest @ 18% per annum. This Court is of the considered view that
considering the terms of the agreement, the relationship between the
parties did not change into that of buyer and seller from that of tenant
and landlord. This Court is of the considered view that the learned
courts have rightly held that there was relationship of land lord and
tenant between the parties and this would be the position in law in the
facts of this case even when seen particularly in the light of the
agreement of sale dated 30.10.2008 (Exhibit-E).
52. The 2nd substantial question of law is accordingly answered
against the appellant (defendant) and in favour of the respondent
(plaintiff).
53. The agreement of sale was not taken into evidence by the
learned 1st appellate court for want of registration and this Court while
answering the 1st substantial question of law has already held that the
agreement of sale certainly could not be taken into consideration for
giving any protection to the defendant under Section 53A of the
Transfer of property Act, but was required to be considered for
collateral purpose to examine as to whether the relationship changed
from landlord and tenant to seller and purchaser pursuant to the
agreement. While answering the 2nd substantial question of law, this
Court has also taken into consideration the agreement of sale (Exhibit-
E) and has recorded a finding that the learned courts have rightly held
that there was relationship of land lord and tenant between the parties
and this would be the position in law in the facts of this case even
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when seen particularly in the light of the agreement of sale dated
30.10.2008 (Exhibit-E).
54. The suit was decreed not only on account of default, but also on
account of personal necessity. Even if it is taken for a moment that as
per the agreement of sale dated 30.10.2008 (Exhibit-E), the defendant
was not supposed to pay rent till he refused to buy the property and
cannot be a defaulter, the same does not help the defendant (appellant)
in any manner as the fact remains that the suit was also decreed on
account of bonafide personal necessity of the plaintiff and no
substantial question of law has been framed on the point of personal
necessity. Therefore, the decree of eviction would still be sustainable.
Summary: –
55. The unregistered agreement of sale dated 30.10.2008 (Exhibit –
E) cannot be taken into evidence for claiming protection under Section
53A of Transfer of Property Act but the learned 1st appellate court
ought to have considered the agreement of sale dated 30.10.2008
(Exhibit-E) for collateral purpose of ascertaining as to whether the
relationship between the parties continued to be that of landlord and
tenant or that had changed into seller and buyer. Accordingly, the 1st
substantial question of law is answered in favour of the appellant-
defendant.
Upon considering the agreement of sale dated 30.10.2008 (Exhibit-E)
while answering the 2nd substantial question of law, it is held that the
defendant did not cease to be a tenant even after the agreement of sale
deed dated 30.10.2008. The 2nd substantial question of law is
answered in favour of the respondent-plaintiff.
56. Consequently, the decree for eviction under the JBC Act which
was passed by the learned trial court and sustained by the learned 1 st
appellate court does not call for any interference.
57. It is an admitted fact that a suit for specific performance of
contract has been filed by the defendant with respect to the agreement
of sale (Exhibit-E) and the suit has been numbered as Title Suit
No.474 of 2009 which is pending. It is sufficient to observe that if the
suit for specific performance is decided in favour of the defendant, it
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will still be possible for the defendant to seek recovery of possession
as per law.
58. This appeal is accordingly dismissed.
(Anubha Rawat Choudhary, J.)
CAV on 07.01.2026
Uploaded on 06.04.2026
Saurav/-
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