Judgment:
J.B. Bhatt, J.
1. A very short question which arises in this revision is as to whether the respondent-original defendant No. 4 - judgment debtor - is bound by the decree passed in Civil Suit No. 2 of 1958.
2. In this revision under Section 115 of Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code'), the challenge is against the order passed by the Execution Court in a Special Execution Application No. 25 of 1982 recorded on 15th December, 1988, wherein, the Executing Court upheld the contention of the respondent that he is not liable to hand over the actual physical possession of part of the premises in his possession as he is a protected tenant therein.
3. The learned Counsel appearing for the petitioner has raised the following contentions while challenging the impugned order passed by the Executing Court:
(i) that there was an implied surrender of tenancy.
(ii) that judgment-debtor cannot be allowed to approbate and reprobate.
(iii) that there was a merger of tenancy right in the agreement of sale coupled with position in that capacity and recovery of rent from other tenants.
4. The aforesaid contentions are, vehemently, countered on behalf of the respondent by learned Counsel, Mr. Jani.
With a view to appreciating the aforesaid contentions and examining their merits a resume of the few material facts as may be narrated.
5. The petitioner is a original-plaintiff No. 1, who alongwith others had instituted a Special Civil Suit No. 2 of 1958 for specific performance of an agreement to sell in respect of the suit property, wherein the respondent was defendant No. 1, who inter-alia contended that he has acquired ownership right by virtue of an agreement to sell dated 10-1-1957 executed by the original owner of the property in his favour. The petitioner-plaintiffs one of the contention was that the respondent-defendant No. 4 is the tenant in respect of part of the suit premises and he is not the owner and the plea of an agreement in his favour is false and fabricated.
6. Upon the appreciation of the facts and circumstances of the evidence on record the trial Court dismissed the suit upholding the defence plea raised by the respondent-defendant No. 4, the trial Court reached to the conclusion that since the original owner has executed an agreement to sell in favour of the defendant No. 4 which is first in point of time, the suit for specific performance filed by the plaintiff of an agreement which is subsequent, is not maintainable. Accordingly, the suit came to be dismissed.
7. The original-plaintiff carried the matter in the appeal. First Appeal No. 115 of 1961 came to be filed before this Court by the petitioner alongwith other appellants. This Court allowed the appeal and reversed the decree recorded by the trial Court by a judgment dated 30th April, 1970.
8. The petitioner being a judgment-creditor filed an execution petition No. 25 of 1982 before the trial Court. The respondent-original defendant No. 4, one of the judgment debtors, raised the contention that he is not liable to be ejected and to hand over the actual physical vacant possession of the premises in his possession as he is the protected tenant. The Executing Court upheld this contention, the prayer for actual Physical possession sought against the respondent-original judgment debtor came to be rejected. Being aggrieved by the said order, petitioner has filed this revision application under Section 115 of the Code.
9. The aforesaid contentions raised on behalf of the petitioner-original plaintiff were also raised before the Executing Court in other words, the aforesaid contentions are reiterated before this Court in this revision. This Court is taken through the impugned order recorded by the Executing Court. After having examined the facts and circumstances and the views recorded by the trial Court in the impugned order, this Court has no hesitation in finding that this revision is totally meritless.
10. The jurisdictional sweep in a revision under Section 115 of the Code is very much circumscribed, Section 115 of the Code empowers High Court to satisfy itself on three matters; (i) that the impugned order passed by the Court is passed within its jurisdiction; (ii) that the case is one in which the Court ought to have exercised jurisdiction; and (iii) that in exercising the jurisdiction, the Court has not acted illegally or any breach of the provisions of law. This proposition is very well settled. If this Court is satisfied on these aforesaid three aspects, it has no jurisdiction to interfere with the impugned order, only because it differs from the conclusion of the subordinate Court, if the finding of the fact recorded by the Court below in the impugned order or decision is neither perverse nor erroneous, this Court cannot substitute its finding for one reached by the lower Court on re-appraisal of the evidence. Again, this is a revision against the order passed by the Executing Court, the Court while passing the impugned order as an Executing Court has reached to a finding of fact that the respondent-original defendant No. 4, one of the judgment-debtors is not liable to hand over the vacant possession of part of the suit premises in his possession as he is a tenant. This finding is apart from being a finding of the fact is a correct interpretation of the decree passed against the defendants in Special Civil Suit No. 2 of 1958.
11. A strong reliance is placed on the expression in the judgment of this Court, in the First Appeal No. 115 of 1961, wherein decree came to be recorded against the defendant for the specific performance and, also for the delivery of the possession. While allowing the appeal and reversing the judgment and decree of the trial Court, this Court directed the original defendants Nos. 1, 2 and 3 to specifically perform their part of the suit contract and to execute the proper deed of conveyance of sale regarding the suit property in favour of the plaintiffs and to deposit the amount of consideration in the trial Court. Thereafter, this Court has observed that the defendant No. 4 (respondent) is also bound by this decree. The strong reliance is placed on this expression 'defendant No. 4 (respondent) is also bound by this decree.' There is no dispute about this aspect, the decree is passed against the respondent in the earlier suit and, he is bound by the decree. The dispute is about the interpretation of the direction thereafter given by this Court in the judgment recorded in the First Appeal No. 115 of 1961. The relevant direction in the final portion of the judgment reads as under:
It is directed and decreed that all the defendants shall hand over the possession of the suit property to the plaintiffs in accordance with law.
(Emphasis supplied)
12.This Court on a plain perusal of the aforesaid expression has directed that the defendants shall hand over the possession of the suit property to the plaintiff in accordance with law. It is anybody's guess that the plaintiffs were in actual possession of the suit property. The defendant No. 4- respondent herein was in actual physical possession in a part of the suit property as a tenant. That was precisely the case of the plaintiff before the trial Court in a plaint, The plaint contains one of the version that the defendant No. 4 is a tenant and not the owner in respect of the part of the suit premises. The plea of the respondent No. 4 that he became the owner by virtue of an agreement of sale in his favour in January, 1957, was not upheld by this Court in Appeal. Obviously, therefore, he has been in possession in respect of the part of the suit properly as a tenant and during the pendency of the tenancy right, he got an agreement in his favour according to his case, which upheld and ultimately is held to be false and concocted.
13. Relying on the finding and rejecting the plea of the respondent, it is contended that there is a surrender of the tenancy. The executing Court has rightly observed that there is not, case for surrender of the tenancy. It may be noted that the surrender is of two types, express or implied. Herein the contention is raised about implied surrender. There is no plea of express surrender of the tenancy. Section 111 of the T.P. Act. 1882, provides as many as eight modes of the determinations of the lease or tenancy. Clause-(e) provides determination by express surrender which is not the case here. The plea is raised of an implied surrender which is provided in clause-(f) of Section 111 of T.P. Act. It is a settled proposition of law that there could be determination of lease of tenancy by implied surrender. The implied surrender could be on account of; (i) the creation of new relationship; or (ii) the relinquishment of the possession.
14. There is 110 dispute about the facts that there is 170 relinquishment of the possession of the demised property, therefore, the question would arise whether there was a creation of new relationship between the parties. Since no dispute is there about the existence of lease of tenancy in favour of the respondent-original defendant No. 4. the implied surrender could be only by creation of new relationship. An agreement to sell cannot create any right or title in immovable property and, agreement to sell could not be said to be a creation of new relationship. Mere agreement to sell by the original owner, lease or tenant would not demanding of creation of new relationship. What was pleaded before the trial Court by the respondent-original defendant No. 4 was that he got an agreement to sell in his favour prior any point of lime and, therefore, he defended the suit filed by the plaintiffs for specific performance of a subsequent agreement of sell in respect of the part or whole property does not ipso facto convert his relationship from leasee to owner. The question of implied surrender, whereby, lessee is alleged to have been determined would arise only in case of new relationship or the relinquishment of the possession. While viewed in the light of the aforesaid proposition of law and the factual scenario emerging from the record of the present case, the plea of implied surrender is totally meritless and is rightly rejected by the Executing Court.
15. There would not arise also a question of merger of tenancy as contended, firstly, merger with what? Court is not enlightened on this question. The merger would be only on account of new relationship, which is not yet created, that is the conclusive finding of the Court in the earlier litigation. There cannot be a merger of lease or right with new relationship and, that to only in a case of agreement to sell. It is a settled proposition of law that the agreement to sell does not create any right in the immovable property, except to file a suit for specific performance of the terms and conditions of the said contract. In the circumstances, the plea of merger is also not sustainable.
16. It was also, contended that there is an estoppel on the part of the respondent once he has raised the plea of an ownership he cannot be allowed to fall back on the earlier or the previous right of tenancy. It is also contended that the respondent cannot be allowed to approbate or reprobate. No doubt, no, person can be allowed to approbate and reprobate. The question in the present revision is as to whether a person who has been in enjoyment of the lease or tenancy right in any part of the premises forming a part of the agreement to sell in favour of the plaintiffs, gets an agreement to sell from the original owner in respect of the demise premises in his favour and he failed to substantiate his plea could or would lose his original status of tenant? Obvious and spontaneous answer would be in the negative. He has been a tenant, who is protected under the Bombay Rent Act, and, therefore, a direction of this Court in First Appeal No. 1 15 of 1961 interpreted by the Executing Court could not be said even for a moment perverse, unreasonable, unjust or illegal. The expression that the defendant shall hand over the possession of the property to the plaintiff in accordance with law. means nut the delivery of actual physical vacant possession but symbolic qua respondent-original defendant No. 4 -judgment debtor. The expression 'in accordance with law', is designedly employed by this Court while, passing a decree in a suit for specific performance of a suit contract. Sincere this Court was conscious in the earlier appeal that the defendant No. 4 who is the respondent, herein, was not one of the executants of the agreement to sell and in fact he was in possession of part of the suit property and the plea of tenancy was raised on behalf of the plaintiffs, therefore, it was directed that possession of the suit premises shall be handed over to the plaintiff in accordance with law.
17. Having regard to the facts and circumstances narrated hereinbefore, this Court ha no hesitation in finding that the aforesaid all the contentions which are reiterated before this Court are unsustainable and the present revision questioning the legality and validity of the impugned order recorded by the Executing Court is meritless. therefore, the revision is dismissed. Rule is discharged.