Hari Gopal Manu v. B S Ojha

RAJIV SAHAI ENDLAW, J. FEBRUARY 10, 2016 "bs"..

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 10th February, 2016 + HARI GOPAL MANU ..... Appellant Through: Mr. Amit Andley and Mr. Arun K. Sharma, Advs. Versus B.S. OJHA ..... Respondent Through: Mr. Arun Khatri, Adv. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. In this first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) against the judgment and decree dated 19th January, 2015 (of the Court of Additional District Judge (ADJ)-3, South East, Saket Courts, New Delhi in Civil Suit No.58/2014), on 3rd February, 2016 after hearing the counsel for the appellant and the counsel for the respondent and perusing the Trial Court record requisitioned, the following order was passed: "1. The appeal impugns a judgment and decree on admissions of ejectment of the appellant from the premises earlier in his tenancy. Inquiry into mesne profits is underway. 2. Notice of the appeal was issued. The counsels have been heard. 3. It is not in dispute that the appellant had entered into the premises as a tenant at a rent in excess of Rs.3,500/- per month and there is no registered Lease Deed between the parties. The only defence of the appellant was that the respondent had agreed to sell the premises to the appellant for a total sale consideration of Rs.1.5 crores and out of which the appellant has paid Rs.15 lacs. The appellant relies upon a Memorandum of Understanding (MoU) in this regard. 4. Needless to state that the respondent / plaintiff controverts. 5. The learned Additional District Judge in these circumstances has passed a decree for ejectment on admission. 6. The counsel for the appellant has contended that even though the respondent had denied the Agreement to Sell or having executed the MoU, the same was required to be established in evidence and no decree on admissions could have been passed. It is further contended that as per the said plea of the appellant/defendant, the nature of possession of the appellant/defendant on the date of institution of the suit was not as a tenant but as of a purchaser. 7. I have however enquired from the counsel for the appellant/defendant, whether not the appellant/defendant having entered into possession of the premises as a tenant, not obliged in law to return possession of the premises to the respondent/landlord and that if at all the nature of possession of the appellant/defendant was to change from that of a tenant to that of a purchaser, the same could be done in accordance with law and not otherwise. This Court in M.R. Sahni Vs. Doris Randhawa AIR 2008 Delhi 110 held that once a tenant, always a tenant unless the status changes by contract or by law. Parity can also be drawn with a licence, in the context whereof Supreme Court in Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332 held that once a licensee always a licensee and the licence without surrendering possession as a licensee, cannot set up another title to property. 8. Such change in accordance with law could have been by the appellant/defendant coming into possession of the premises in part performance of the Agreement to Purchase and which could have happened, after the amendment of the Stamp Act and the Registration Act w.e.f. September, 2001 only by a registered document. 9. There is admittedly no registered document recording such delivery of possession. 10. The counsel for the appellant/defendant though has not filed MoU alleged to have been executed, has on request handed over a copy thereof in the Court but therefrom also is unable to show that the respondent/landlord as a seller has put the appellant/defendant into possession of the premises in part performance of the Agreement to Sell. 11. Thus there does not appear to be any triable issue owing whereto it can be said that the judgment and decree on admission is fallacious. 12. The principles of Order 15 of the CPC can also be invoked in this respect i.e. a meaningful reading of the written statement not disclosing any triable issue. 13. The c