Case: Shashi Kapila Vs. R.P. Ashwin

The appellant never contended that he had offered the suit property as an asset of the partnership firm. Nor did the firm at any time claim that the appellant threw the tenancy right over the building into the hotchpot of the partnership at any time. On the contrary, the agreement has taken care that the building is in the personal possession of the appellant. The following recital in the agreement would bear testimony to it : "The purchaser is aware that the tenant is in possession of the said premises and after the purchase he must obtain the possession of the said premises in due course at his own cost and responsibilities. The seller does not hold himself responsible in any way to get him vacant possession. In fact, the purchaser has agreed to take up this responsibility." * 8. Even that apart, when a suit was filed by M/s. Shiva and Co. for specific performance of the agreement dated 17-4-1986 the firm made it abundantly clear in the plaint itself that the appellants right in the building as a tenant is in his personal capacity and not as a partner of the firm. The relevant portion of the plaint is extracted below : "The suit schedule property, at the time of agreement of sale, was in the occupation of Mr. Shashi Kapila in his personal capacity. Hence it is agreed that the defendant would not be responsible to place the plaintiff in vacant possession of the suit property and the plaintiff agreed to the same. The suit schedule property continues to be tenanted by Mr. Shashi Kapila in his personal capacity who is also one of the partners of the plaintiffs firm." * (Mr. Shashi Kapila, mentioned in the above portion, is the appellant in this case). 9. Thus the appellant cannot lay any claim on the strength of Section 53-A of the Transfer of Property Act, even assuming that the agreement is still binding on the parties thereto. 10. The second limb of the contention is that when the landlord himself had agreed to transfer his rights to others, such a stance is nugatory to his claim that he genuinely needs the building for his own occupation. At the first blush the argument appeared forceful because the bona fides of the landlords need could possibly get eclipsed when the landlord himself wanted his rights in the building to be alienated to other persons. But when we delved into the matter we found that genuineness of the landlords need remains unimpaired despite his earlier inclination to sell the building. We shall now state the reasons. 11. We pointed out above that the agreement to sell was executed on 17-4-1986. It has been stipulated therein that the sale deed should be executed and registered within three months from the said date. It is the admitted case that the sale deed was not executed within that time. The landlord filed a petition for eviction only 6 years thereafter. In the petition for eviction he has stated that he was residing at Mysore and he shifted his residence to Bangalore and has been staying in a temporary accommodation as the building belonging to another person was given for his occupation. He further said that he is unable to continue in the said building for various reasons. It is not disputed that the landlord is now residing in the building belonging to somebody else.M/s. Shiva & Co. had filed a suit in 1986 for specific performance of the agreement. The said suit was vehemently resisted by the landlord. At some point of time the said suit was withdrawn by the firm and later in 1989 the same firm filed a second suit for specific performance of the agreement dated 17-4-1986. The landlord opposed the second suit also on all grounds. He contended, inter alia, that the agreement itself could not be acted on as he was deceived by Mr. Yati Kumar who represented the firm and it was never disclosed to the landlord that the appellant was a partner of that firm. At any rate, it was clear beyond doubt that the landlord was totally opposed to the performance of the terms of the agreement dated 17-4-1986. That stand of the landlord was proclaimed long before he launched the present litigation for eviction of the appellant on the ground of his need to occupy the building. The above developments would indicate that the need of the landlord for occupying the suit building arose only long after 17-4-1986. Therefore, he cannot be pre-empted from claiming the relief merely on the ground that six years prior to it he was willing to sell the building. Hence, we are unable to agree with the contention of the appellant that the landlord can be non-suited on the basis of the aforementioned agreement. 12. Learned Senior Counsel for the appellant relied on the decision of this Court in P. Veerappa v. M. A. Mohammed Amanulla in support of his contention that the agreement would foreclose the landlords claim that he needs the building bona fide for his own use. The following passage in the judgment is enough to show that the said decision is of no use to the appellant : "6. So long as the agreement subsists, it is settled law that the lesser right of tenancy stood merged with larger rights accrued under the agreement. But unfortunately in the compromise itself it was recognised that the appellant was to pay arrears of rent till the date of compromise. In other words, the appellant recognised the reversion to his pre-existing rights as tenant up to the date of the compromise. In other words, subject to compliance of the terms of the contract, his tenancy rights continued. The terms have not been complied with and the agreement came to an end. Thereby, the appellants pre-existing rights as a tenant stood revived and the appellant and the respondent were bound by the relationship of landlord and tenant." * 13.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Thus the appellant cannot lay any claim on the strength of Section 53-A of the Transfer of Property Act, even assuming that the agreement is still binding on the parties theretoThe second limb of the contention is that when the landlord himself had agreed to transfer his rights to others, such a stance is nugatory to his claim that he genuinely needs the building for his own occupation. At the first blush the argument appeared forceful because the bona fides of the landlords need could possibly get eclipsed when the landlord himself wanted his rights in the building to be alienated to other persons. But when we delved into the matter we found that genuineness of the landlords need remains unimpaired despite his earlier inclination to sell the building. We shall now state the reasonsWe pointed out above that the agreement to sell was executed on 17-4-1986. It has been stipulated therein that the sale deed should be executed and registered within three months from the said date. It is the admitted case that the sale deed was not executed within that time. The landlord filed a petition for eviction only 6 years thereafter. In the petition for eviction he has stated that he was residing at Mysore and he shifted his residence to Bangalore and has been staying in a temporary accommodation as the building belonging to another person was given for his occupation. He further said that he is unable to continue in the said building for various reasons. It is not disputed that the landlord is now residing in the building belonging to somebody else.M/s. Shiva & Co. had filed a suit in 1986 for specific performance of the agreement. The said suit was vehemently resisted by the landlord. At some point of time the said suit was withdrawn by the firm and later in 1989 the same firm filed a second suit for specific performance of the agreement dated 17-4-1986. The landlord opposed the second suit also on all grounds. He contended, inter alia, that the agreement itself could not be acted on as he was deceived by Mr. Yati Kumar who represented the firm and it was never disclosed to the landlord that the appellant was a partner of that firm. At any rate, it was clear beyond doubt that the landlord was totally opposed to the performance of the terms of the agreement dated 17-4-1986. That stand of the landlord was proclaimed long before he launched the present litigation for eviction of the appellant on the ground of his need to occupy the building. The above developments would indicate that the need of the landlord for occupying the suit building arose only long after 17-4-1986. Therefore, he cannot be pre-empted from claiming the relief merely on the ground that six years prior to it he was willing to sell the building. Hence, we are unable to agree with the contention of the appellant that the landlord can be non-suited on the basis of the aforementioned agreement