TaxTMI 
TaxTMI 
2021 (8) TMI 1325
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....eing the legal heir of the alleged landlord, Late Shri Rohini Kumar Mazumdar, filed a Suit against the Appellant, alleged tenant and Respondents No. 2 to 5, other legal heirs of the alleged landlord, seeking three reliefs viz: (a) decree of possession of the tenanted premises bearing No. A-80, Chitranjan Park, New Delhi (hereinafter referred to as 'premises'); (b) recovery of arrears of rent amounting to Rs. 36,000/- along with interest @ 18% per annum and (c) recovery of mesne profits/damages @ Rs. 25,000/- per month w.e.f. 01.02.2015 along with interest @ 18% per annum. 3. The case of Respondent No. 1, as set out in the plaint, was that Late Shri R.K. Mazumdar was allotted the land underlying the premises by the Ministry of Rehabilitation, Government of India, vide registered Lease Agreement dated 24.11.1969. Late Shri Mazumdar constructed a house over the said land in the year 1991 by raising a loan from LIC through DDA against mortgage of the property with DDA. During his lifetime, Shri Mazumdar had inducted the Appellant as a tenant with respect to the entire premises, except for one store room, marked and shown separately in the site plan, initially vide Tenancy Ag....
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.... in a habitable condition and thus, it was further agreed that the husband of the Appellant would carry out the repairs and the expenditure incurred would be deducted from the sale price of the roof rights of the premises. Shri B.K. Mitra, husband of the Appellant spent Rs. 1,90,000/- on the said repairs and the family shifted to the ground floor. 6. It was averred that thereafter Late Shri Mazumdar offered to sell the entire house to the Appellant and her son for a sum of Rs. 9 Lakhs, after adjusting Rs. 1,90,000/- spent on repairs of the ground floor and Rs. 1,40,000/- paid towards the rent. A sum of Rs. 5,65,000/- was immediately paid by the Appellant and her son to Late Shri Mazumdar and in respect of balance sale consideration of Rs. 3,35,000/-, it was agreed that the same would be paid after Late Shri Mazumdar obtained the relevant documents from DDA and discharged his loan liability. It was also agreed that in case Late Shri Mazumdar did not discharge his liability, the appellant would pay the outstanding loan amount directly to DDA. An Agreement to Sell was executed by Late Shri Mazumdar on 22.11.1994 in favour of the Appellant and her son along with an irrevocable Gener....
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.... the first time only during the final arguments on 16.09.2019 and 21.09.2019. Appellant had nowhere pleaded in the Written Statement that she was entitled to the benefit of the said provision, as she had upon execution of the Agreement to Sell, taken possession of the premises, in part performance of the Agreement and consequently even evidence was not led to that effect. Instead, Appellant had pleaded that upon execution of the Agreement to Sell and GPA, both dated 22.11.1994, her son and the Appellant had become owners of the premises. Trial Court relied on the judgment of the Supreme Court in Shyam Narayan Prasad vs. Krishna Prasad & Ors., (2018) 7 SCC 646, wherein the Supreme Court has held that wherever the Defendant intends to avail the benefit of Section 53A of TPA, he must plead that he has taken possession of the property, in part performance of the contract, since pleadings give each side intimation of the each other's case and also enables the Court to determine the real issue for determination. Therefore, in the absence of pleadings, benefit of protection under Section 53A of TPA cannot be granted to the Defendant. 11. The second reason given by the Trial Court f....
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....er in view of Section 54 of TPA and that such a document only creates a right to obtain another document in the form of Sale Deed. Trial Court, therefore, held that there cannot be a transfer of title/ownership through Agreement to Sell, Power of Attorney etc. And that the said documents do not confer any right, title or interest upon the agreement purchaser, except the right to seek specific performance of the Agreement to Sell. 13. Learned Trial Court also held that the undisputed position that emerged was that denial of second Tenancy Agreement was of no consequence as even if the Appellant was not re-inducted as a tenant vide Tenancy Agreement dated 30.01.1995, she had continued to be a tenant of Late Shri Mazumdar on the basis of the tenancy emanating from the Agreement dated 22.11.1992 and the Appellant had not expressly denied service of legal notice dated 22.11.2014, whereby the tenancy was determined and terminated by Respondent No. 1. 14. In view of the aforesaid findings on Issue No. 1 in favour of Respondent No. 1, Trial Court decided Issue No. 2 partly in favour of Respondent No. 1 and held him entitled to a sum of Rs. 27,000/- in respect of arrears of rent for t....
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....late Court contains only a restatement of the factual narration taken from the order of the Trial Court and the extracts of the reasoning by the Trial Court. It is totally devoid of independent discussion on the contentions put forth, the evidence led and/or with respect to the questions of law raised before it. The First Appellate Court has passed a cryptic and non-reasoned judgment and on a general agreement concluded that the judgment rendered by the Trial Court requires no interference. 18. In a nut-shell, the contention of the Appellant was that the First Appellate Court has merely reproduced the judgment of the Trial Court mechanically and has failed to discharge the duty cast upon it under Section 96 and Order XLI Rule 31 CPC and on this sole ground, the matter deserves to be remanded back for proper application of mind, after deliberating on the issues and contentions raised and giving reasons for the findings and conclusion. The judgment, according to the learned counsel, is silent and bereft of 'reasons' which are the heart and soul of a judicial order. 19. Learned counsel relied on the judgment of the Supreme Court in C. Venkata Swamy vs. H.N. Shivanna (Dea....
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....ear the loan liability and take steps to get the Conveyance Deed executed in her name. In any case, it was the duty of the Court to see the letter and spirit of the pleadings and not to throw out a genuine claim on mere technicalities. 22. Learned counsel placed reliance on the judgment of this Court in Hardip Kaur vs. Kailash & Anr. to argue that the Appellant may not be a classical owner of the property but has a 'better right' of possession and is protected under Section 53A of TPA. It was also argued that as per Sections 91 and 92 of the Evidence Act, once there is a written document of transaction, it cannot be contradicted by oral evidence. 23. Learned counsel further argued that the reliance of the Trial Court on the judgment of the Supreme Court in H.K. Sharma (supra) to hold that the Agreement to Sell is silent on the fate of tenancy, is misplaced. Trial Court erroneously did not take into consideration the GPA which categorically records the fact of the Appellant's acquiring possession and doing all acts in relation to the property including the right to sell. Trial Court failed to appreciate that it is a settled law that if a transaction is contained in....
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....dered and tested the reasons given by the Trial Court and found no reason or ground to reverse its findings. 25. It was further argued that the findings of the Trial Court are based on the evidence on record, both oral and documentary and settled legal position, with which the First Appellate Court concurred and no case for remand is made out by the Appellant. It was further contended that the Appellant has failed to raise any substantial question of law as required under Section 100 CPC and in the absence of the same the present appeal deserves to be dismissed. The Trial Court as well as the First Appellate Court have relied on the judgments where the law on the points raised by the Appellant stands settled by the Supreme Court and no question of law arises, which requires any debate or argument. Trial Court has given a reasoned judgment on the interpretation of Section 53A of the TPA, relying on the judgment of the Supreme Court in Shyam Narayan Prasad (supra), which is binding on both the Courts below. The Supreme Court has held therein that in order to avail the benefit of Section 53A of TPA, a party is required to plead that he or she has taken possession of the property, i....
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....ale Deed was ever executed in favour of the Appellant. It was submitted that Section 17 of the Registration Act, 1908 was amended and sub-Section (1A) was inserted by Amendment Act 48 of 2001 effective from 24.09.2001. After the Amendment, the documents containing contracts to transfer for consideration, any immoveable property, for the purpose of Section 53A of TPA, shall be registered, if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not so registered, they shall have no effect for the purposes of Section 53A of TPA. Counsel relied on the judgment of the Supreme Court in H.K. Sharma (supra) wherein according to him, the judgment of the Supreme Court in R. Kanthimathi (supra) relied upon by the Appellant has been distinguished. It was argued that in H.K. Sharma (supra), the Supreme Court, faced with an identical question, laid down the test that the Court must ascertain whether the terms of the Agreement to Sell set up by the Tenant evidence any intention to abandon the existing landlord-tenant relationship and only on being satisfied that such intention exists, the old relationship ....
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....t performance, Appellant ought to have pleaded that she had taken some steps in furtherance of the Agreement and is in possession of the premises. She also ought to have pleaded that she was ready and willing to perform her part of the Agreement in accordance with the provisions Section 53A of the TPA, which are clear and require no interpretation. Part performance argument cannot simply flow out of an ownership argument, as in the former, one concedes that he has only an Agreement to Sell in his favour and protection from dispossession is sought on the strength of the fact that he has acted in furtherance of the Agreement and remains willing to comply with the balance terms, while in the latter case, one asserts that the Agreement to Sell is by itself proof of ownership and as a corollary nothing further is required to be done. The Appellant has clearly chosen the latter course as is evident from para 4 of the written statement. 32. Learned counsel relies on a recent judgment of the Supreme Court in H.K. Sharma (supra) which according to him clinches the issue in favour of the Respondents. It is submitted that the Supreme Court faced with an identical question held that the Cou....
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....r law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees." "Order XLI Appeals from Original Decrees 31. Contents, date and signature of judgment.--The judgment of the Appellate Court shall be in writing and shall state-- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." 37. In C. Venkata Swamy (supra....
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....tigant is entitled to a full and fair and independent consideration of the evidence at the Appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an Appellate court. 3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation." (emphasis supplied) 14. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate court under Section 96 of the Code while deciding the first appeal. We consider it apposite to refer to some of the decisions. 15. In Santosh Hazari v. Purushottam Tiwari, this Court held as under: (SCC pp. 188-89, para 15) "15. … The Appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate court must, therefore, reflect its conscious application of mind an....
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.... (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The Appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari ....
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....t them or in favour of them. It thus satisfies the test of justice, not only being done but also appears to have been done. It helps to remove any lurking feeling of injustice in the mind of the party, who has lost its case, as he knows that he has lost it for the reasons stated in the Judgment. Secondly, giving of reasons in the Judgment avoids the arbitrary exercise of the powers by the Appellate Court. It helps to remove even the impression that the decision was given in arbitrary manner. It guarantee transparency. Thirdly and equally importantly, the Appellate Court, before which the Judgment is impugned, can also get the opportunity to test the validity of the Judgment impugned, on the basis of the reasons given therein, exactly to judge whether those reasons are based on proper appreciation of evidence and sound legal position. 42. Hence, it is no exaggeration to say that, without the "reasons", the Judgment cannot be called as a Judgment at all. It is no "Judgment" in the eyes of the law. Especially, as mandated by Rule 31 of Order 41 of the Code of Civil Procedure, 1908, the first Appellate Court, being the final Court of fact finding and, to that extent, on the qu....
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....a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the Appellate court for shirking the duty cast on it. While writing a judgment of reversal the Appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the Appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the Appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35: AIR 1983 SC 114]). The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hing....
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....herefore detain this Court. Suffice would it be to refer to paragraphs 12 and 14 of the said judgment as under:- "12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means -- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with -- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta [AIR 1928 PC 172: 55 IA 235], the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships h....
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....ion of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." 43. Reference to the aforesaid passages is only with a purpose to highlight and emphasize that the scope of Second Appeal under Section 100 CPC is considerably circumscribed and also to stress on the point that on account of this limited jurisdiction of the Second Appellate Court, the burden and responsibility on the First Appellate Court becomes much higher, as it is this C....
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....he Trial Court is an easier one and expression of general agreement with reasons given by the Trial Court would ordinarily suffice, but one cannot overlook the 'note of caution' annotated by the Supreme Court in the following words:- "We would, however, like to sound a note of caution that the expression of general agreement with the findings recorded in the Judgment under Appeal should not be a device or camouflage adopted by the Appellate Court for shirking the duty cast on it." 46. There is no gainsaying that the dictum of law that the First Appellate Courts must record reasons in the judgments is applicable not only when the First Appellate Court reverses any finding or sets aside the judgment of the Trial Court, but would equally apply when the judgment of the Trial Court is confirmed and concurred with. It bears repetition to state that the Supreme Court has clearly held that even when the First Appellate Court agrees with the judgment of the Trial Court, it should not be a device or camouflage adopted by it to shirk the duty cast on it, i.e. to re-appreciate the entire evidence on record, re-consider the case keeping in mind the position in law, frame the....
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.... possession of the premises by virtue of the Agreement to Sell executed by the father of Respondent No. 1 in her favour; (g). reliance on the judgment of the Supreme Court in Shyam Narayan Prasad (supra) by the Trial Court was erroneous as the challenge in the said case was to an unregistered Exchange Deed which was sought to be declared invalid on the ground that the property in question was ancestral property while the defence taken was that the property was not ancestral and in this context the Court held that plea of part performance was required to be taken while in the present case, a specific plea of possession was taken and the Appellant was thus entitled to defend her possession; (h). under the well settled law upon execution of an Agreement to Sell between the tenant and the landlord, the relationship becomes one of seller and purchaser by operation of law and the status of tenant-landlord ceases and even on cancellation of the Agreement to Sell, the status of tenant is not restored; (i). Trial Court had rendered a specific finding in favour of the Appellant that the Agreement to Sell and the GPA both dated 22.11.1994 were genuine documents and yet declined to grant prote....
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.... was entitled to protection under section 53A of the Transfer of Property Act, 1882 is wholly perverse and misconceived. F. Because despite rendering a specific finding that the alleged tenancy agreement dated 31.01.1995 does not appear to have the genuine signatures of Late Sh. R.K. Mazumdar or the appellant, the Ld. Trial Court did not take notice of the fact and took no steps to direct initiation of criminal proceedings against respondent no. 1. G. Because the Ld. Trial Court while passing the impugned judgment committed an error by holding that the appellant has not pleaded in her written statement that she was ready and willing to perform her part of the agreement to sell. H. Because the Ld. Trial Court failed to appreciate that even if the transferee who is in possession fails to file a suit for specific performance, still in law the contract remains valid and operative enabling him to exert his / her to retain possession over the property in question in exercise of his statutory right conferred by Section 53A of the Transfer of Property Act by way of defence in a suit brought against him / her for recovery of possession. I. Because the Ld.....
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....raised by the Appellant and has not even given any 'reasons' for concurring with the findings of fact and law given by the Trial Court as also the reasons why the contentions of the Appellant challenging the judgment of the Trial Court were devoid of merit. I may refer to the relevant paras from the judgment of the First Appellate Court, which would indicate that the same is totally devoid of even any consideration/discussion on the contentions put forth by the parties and bereft of reasons to concur with the Trial Court:- "28. I have gone through the entire record of the case, arguments rendered by the parties and the judgments cited by both the parties and I am of this considered opinion that the findings of the Ld. Trial court in issue no. 1 in favour of the respondent and against the appellant is well founded and require no interference from this court. 29. As regards issue no. 2 and 3 are concerned, it has been recorded by the Ld. Trial court that the appellant was a tenant qua the tenanted premises till the determination of her tenancy qua the tenanted premises by service of legal notice dated 22.11.2014 by the appellant and in view of the fact that ....
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....t that a host of judgments were cited on behalf of the Appellant but the First Appellate Court has not even mentioned the same in its judgment, while the judgments relied upon by the Respondents have been taken note of. In order to substantiate the argument, learned counsel has placed on record a copy of an email dated 06.11.2020 forwarding the judgments as also a copy of an index showing the proof of handing over hard copies of the judgments relied upon. Mr. Kalra, learned counsel had strenuously taken up this point during the arguments and there was no rebuttal on behalf of the Respondents. It is not only surprising but most unfortunate that the First Appellate Court does not even take the trouble of referring to the judgments filed and relied before it by the Appellant, leave alone dealing with them. It was the bounden duty of the First Appellate Court to take note of the law laid down in the judgments and if in its perception the same were not applicable then to have given reasons as to how the judgments did not advance the case of the Appellant and/or were distinguishable. This Court cannot but agree with the learned counsel for the Appellant that under the camouflage of concu....