IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL No. (^a /2011 APPELLANT/ : Neh Miya Sona S/o Shri Daso (DEFENDANT) Sona, aged about - 50 years, R/o Navakholi Ramnagar Supela Bhilai, Near Navnit Dairy, Bhilai, Tahsil & Distt- Durg (C.G.) VERSUS Masih Dan S/o Late M.L. Lal, aged about 67 years, R/o Somani, Tahsil 85 Distt.- Rajnandgaon (C.G.). SECOND APPEAL UNDER SECTION 100 OF THE CODE OF ,,^v"x ^^' A^'"'^^"...^ ^"^^"^^ ^' ^.^<^ -( RESPQNDENT fPLAINTIFF) CIVIL PROCEDURE, 1908 •'%^ HIGH COURT OF CHHATTISGARH AT BILASPUR S.A,No.62of2011 0, -o v APPELLANT Defendant RESPONDENT Plaintiff APPELLANT Defendant RESPONDENT Plaintiff APPELLANT Defendant RESPONDENT PIaintiff Chandrahas Patel VERSUS Masih Dan S.A.No.63of2011 Rajesh Charli VERSUS Masih Dan S,A.No.64of2011 Surendra Kaur VERSUS Masih Dan S.A. No. 65 of2011 APPELLANT Defendant RESPONDENT Plaintiff Mahipal Singh VERSUS Masih Dan S.A.No.66of2011 APPELLANT Defendant RESPONDENT Plaintiff Neh Miya Sona VERSUS Masih Dan S.A. No. 67 of 2011 APPELLANT Defendant RESPONDENT Plaintiff Ram Singh VERSUS Masih Dan ^" ^ SECOND APPEAL UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE (SB: Hon'ble Mr. N.K. Asarwal, J.) Present : Shri Jitendra Kumar Gupta with Shri Rishi Rahul Soni, Advocates for the appellants. JUDGMENT (Passedon 23.02.2011) 1. Heard on admission. 2. By this common judgment, S.A. Nos. 62,63,64,65, 66 and 67 of 2011 are being disposed of as the common facts & issues are involved in all these Second Appeals. 3. These appeals have been filed by the defendants against the judgment and decree dated 22.10.2010 passed by the VIIIth Additional District Judge (FTC), Durg in Civil Appeal Nos. 11- A/10, l-A/10, 2-A/10,3-A/10, 10-A/10 & 7-A/10 affinning the judgment and decree passed by the IVth Civil Judge, Class II, Durg in Civil Suit Nos. 38-A/09, 37-A/09, 39-A/09, 41-A/09, 40- A/09 and 36-A/09 respectively. 4. Brief facts of the case are that: admittedly, the appellants are residing in the part of suit premises as tenants of respondent/ plaintiff; the suit premises were given on rent by the plaintiff to the appellants on monthly rent ofRs. 250, 150, 250,250, 150 and 25O/- respectively; the appellants entered into agreement of sale with the respondent/Masih Dan in the year 2002; did not fulfill the conditions ofagreement ofsale, inasmuch as, neither balance consideration amount was paid nor shown their readiness and a, willingness to perform their part of contract and have also stopped paying rent to the respondent. The respondent filed suits under the provisions of C.G. Accommodation Control Act, 1961 (for short 'the Act, 1961') for eviction of appellants from the suit premises on the ground of bonafide need for residence ofhimselfand his family members and on the grounds: tenants have neither paid rent nor tendered the whole ofthe arrears ofthe rent legally recoverable from them within two months of the date on which a notice of demand for the arrears ofrent has been served on them by the landlord in the prescribed manner. The suit was contested by the appellants mainly on the ground after entering into agreement of sale they became the owner of the suit premises and relationship of landlord and tenant does not exist and the suit filed by the respondent for eviction is not maintainable. The trial court, on appreciation of evidence led material placed and submissions made, rejected the defence taken by the appellants, holding plaintiff/respondent is in bonafide need ofsuit premises and also the appellants have committed default in payment of rent despite demand notice, decreed the suit in respondent's favour. There-against, first appeals preferred by the appellants were also dismissed by the first appellate court. Hence these Second Appeals. 8. Leamed counsel appearing for the appellants would submit that afiter entering into agreement of sale, the appellants became the owner of the suit premises and the eviction suit preferred by the respondent is not maintainable, and therefore, both the courts below have erred in passing the decree in respondent's favour. 9. I have heard the counsel appearing for the appellants and pemsed the order impugned. .10. Copies of agreement of sale in all the cases are produced by the counsel appearing for the appellants during the course of arguments which is taken on records. There is nothing in the agreement ofsale suggesting their continuance in possession m part performance of the contract and that they have done some act in fartherance ofthe contract. 11. Section 53A of the Transfer of Property Act, 1882 (for short 'the TP Act') reads as under: "53A. Part performance: Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalffrom 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 ofthe contract, and the transferee has performed or is willing to perform his part ofthe contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instmment 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 ofthe contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or ofthe part performance thereof." 12. Before invoking Section 53A ofthe Act, parties invoking above provision has to establish (i) a contract to transfer immovable property; (ii) the transfer should be for consideration; (iii) the contract must be in writing; (iv) it should be signed by or on behalf of the transferor;(v) the terms of the contract can be ascertained with reasonable certainty from the writing; (vi) the transferee takes possession ofthe whole or part ofthe property or if already in possession continues in possession in part performance of the contract; (vii) the transferee should do some act in furtherance of the contract; and (viii) the transferee has performed, or is ready and willing to perform his part of the contract. 13. The Supreme Court in case of FGP Limited v. Saheh Hooseini Doctor and Another1 has held in para 25 & 26 of its judgment: - the rational of equitable doctrine of part-performance in English law and as applicable in India via Section 53-A is that the act or action relied upon as "evidencing part-performance" must be of such nature and character that its existence would establish the contract and its implementation. The crucial act or action must be of such a character as to be unequivocally referable to the ' 2009 (10) SCC 223 contract as having been performed in performance of the contract. The act relied upon by the party invoking the said doctrine must be such as by its own force to show the very existence ofthe same contract. 14. The appellants have failed to exercise their rights of specific performance of contract by filing the suit. They did not pay the balance consideration amount after entering into agreement of sale and also stopped paying rent; the appellant' defence was struck-out by the trial court under Section 13 (6) ofthe Act; there is nothing in the agreement of sale written on plain sheet of papers showing intention to extinguish relationship of landlord and tenant after its execution; the appellants have failed to show in part perfonnance of the contract; they have done some act in furtherance ofthe contract and are always been ready and willing to perform their part of contract, in the absence of above, the appellants are not entitled to take shelter of equitable doctrine of part performance ofthe contract. 15. Undisputedly, the respondent/plaintiff is an old person; is in need of suit premises; merely because at some point of time he was willing to sell the building; he cannot be preempted from claiming the reliefofevictionon the ground ofbonafide need. 16. In view ofabove, the appellants have failed to show any illegality or perversity in the concurrent findings recorded by both the courts below. Therefore, I am of the considered opinion that no o^ substantial question of law arises for determination in these appeals. 17. This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise ofthejurisdiction under the amended Section 100 of the Code. Leamed counsel appearing for the appellants failed to point out any substantial question of law, which may arise for detennination in the case. In the absence of any substantial question of law arises for determination of this Court, this Court has no option but to dismiss the appeals. 18. In view of above, since no substantial question arises for determination of the case, the appeals are dismissed. No order asto costs. Sd/- N.K. Agarwal Judge Sahu