IN THE HIGH COURT AT CALCUTTA 

CIVIL APPELLATE JURISDICTION 

APPELLATE SIDE 

PRESENT: 

THE HON’BLE JUSTICE SOUMEN SEN 

THE HON’BLE JUSTICE AJOY KUMAR MUKHERJEE 

F.A. 55 of 2017 

Smt. Sashi Jain @ Shashi Jain 

Vs. 

Sandip Sarkar 

For the Appellant : Ms. Sabita Mukherjee Roy Chowdhury, For the Respondent : Mr. Sourav Sen, Adv. 

Hearing Concluded on : 18th January, 2022 

Judgment on : 2nd March, 2022  

Soumen Sen J.: The appeal is arising out of a judgment and decree  dated January 31, 2017 passed by the learned Judge, 10th Bench, City  Civil Court at Calcutta in a suit for recovery of possession and injunction being Title Suit No. 2917 of 2010. The learned Trial Court decreed the suit  on contest and dismissed the counter claim filed by the defendant.  The defendant in the suit is the appellant herein.  

Shorn of unnecessary details, the plaintiff/respondent is the landlord  in respect of the suit premises. The defendant/appellant was a tenant  under the plaintiff in respect of the second floor of the suit premises.  Earlier to the present suit, the plaintiff/respondent filed a suit for eviction  being Ejectment Suit No. 1386 of 2001 in the Small Causes Court at  Calcutta for eviction of the defendant/appellant.

During the pendency of the suit the appellant expressed her willingness to purchase the second floor of the suit premises. On the basis  of the said proposal the parties negotiated, and during such negotiation  the plaintiff had agreed to sell the said floor for a consideration of Rs.13  lakhs and the appellant agreed to purchase the said flat at the said  consideration. The parties thereafter executed an agreement for sale on  15th February, 2006 which contained the detailed terms and conditions for  the sale. Under the said agreement it was agreed that the entire  consideration amount of Rs.13 lakhs shall be paid in installments  commencing from December, 2006 and ending with November, 2008. It  was further agreed that a sum of Rs.5 lakhs shall be paid within March  2007 as a condition precedent. The purchaser/defendant/appellant also  agreed to pay a sum of Rs.40,000/- at the time of execution of the  agreement which she paid by an account payee cheque bearing no.  253304 dated December 11, 2006. Till the entire consideration money is 

paid and the sale agreement is registered, the tenant had agreed to pay  ‘occupancy charges’ at the rate of Rs. 2,000/- per month on and from  January 2007 until payment of Rs.5 lakh and thereafter the ‘occupancy  charges’ would get reduced by Rs.150/- per lakh. The plaintiff/respondent  received Rs.40,000/- by cheque as the first installment. Admittedly, the  balance consideration money was not paid. The defendant/appellant had 

also failed to make the payment of Rs.5 lakh within March 2007 as agreed  between the parties. In view of such breach the plaintiff/respondent  rescinded the said agreement and sued the defendant/appellant for  recovery of possession. 

The defendant contested the suit and filed the written statement denying the allegations. The defendant alleged that the plaintiff  mischievously had her water supply disconnected at the tenanted  premises for which she had to incur an expenditure sum of Rs.13,500/- as water lifting charges from May 2010 to January 2011. She also denied  and disputed that she had failed to make payment of the balance  consideration money or failed to register the alleged deed of conveyance.  

The learned trial judge, on consideration of the evidence, held that by  reason of the agreement for sale entered into between the plaintiff and the  defendant, the relationship of landlord and tenant came to an end, and  the plaintiff was entitled to sue the defendant for recovery of possession  upon establishing his right.  

Ms. Sabita Mukherjee Roy Chowdhury, the Learned Counsel for the  appellant has submitted that the Trial Judge had completely erred in  arriving at a finding that by reason of the execution of the agreement for  sale, the relationship of the plaintiff and defendant as landlord and tenant  ceased to exist. It is submitted that the agreement was unregistered and  never acted upon. Notwithstanding the agreement for sale, if at all such  agreement can be looked into, it does not, in any event, alter the  relationship. The agreement for sale would specifically show that the  appellant would be required to pay ‘occupancy charges’ for a certain  period of time which militates against an agreement for sale. It is quite  unusual and inconceivable that the purchaser would agree to pay  ‘occupancy charges’ after entering into an agreement for sale. Moreover,  there is no deed of relinquishment or surrender by the appellant in favour 

of the respondent/landlord, whereby the tenant gave up her tenancy  rights in the suit premises.  

Ms. Sabita Mukherjee Roy Chowdhury has strenuously argued that the intention of the parties was to continue with the relationship of the  landlord and tenant until the execution of the sale deed. The termination  of the agreement does not, ipso facto, give right to the landlord to evict the  tenant on the ground of surrender of tenancy. 

It is, thus, submitted by the Learned Counsel that the judgment of  the Trial Court suffers from inherent lack of understanding of law.  Curiously enough, the defendant/appellant although had filed a  counter claim for reimbursement of water lifting charges, she did not pray  for specific performance of the agreement for sale. She also could not  justify non-payment of the balance consideration money. The execution of  the agreement was never disputed. 

In view of the agreement for sale a new relationship emerges and the  parties have agreed to alter their position vis a vis the other. Moreover, the  said agreement was acted upon partly when the appellant paid a sum of  Rs.40,000/- on 11th December, 2006 as part consideration. The payment  of ‘occupancy charges’ cannot in any manner revive the relationship of  landlord and tenant. The parties have in expressed terms agreed to be  treated as purchaser and seller and not as landlord and tenant. 

Mr. Sourav Sen, the learned Counsel for the plaintiff/respondent, submits that it is significant to note that the agreement for sale used the  expression ‘occupancy charge’ as opposed to “rent” thereby giving a clear 

indication that the period for which the appellant would remain in  possession she would pay occupancy charges. 

It is submitted that if the argument of the other side is accepted then  two relationships would be running concurrently namely, purchaser and  tenant till the execution of the sale deed, which was never the intention of  the parties nor such dual relationship is tenable in the eye of law. The  plaintiff accepted the breach and sued the defendant for eviction. 

Mr. Sourav Sen submits that the appellant has no intention to  perform her obligation and by reason of the agreement for sale the rights  and liabilities of the parties are to be worked out on the basis of that  agreement and not on the basis of any earlier agreement or arrangement. 

Mr. Sourav Sen submits that when the appellant was inducted as  tenant it meant that both the parties agreed that their relationship was to be that of landlord and tenant, which position however altered later when  the landlord decided to sell the suit property to the tenant. Appellant and  the tenant agreed by entering into agreement and it was this positive act  on the part of the parties that is relevant consideration to decide the  relationship between the parties. The landlord having accepted the part  consideration had thereby agreed to act in terms of the sale agreement.  This is equally true for the appellant/tenant/purchaser who had tendered  the amount in terms of the said agreement. 

Mr. Sourav Sen, in this regard, has relied upon two decisions of the  Hon’ble Supreme Court in Arjunlal Bhatt Mall Gothani & Ors., Vs. Girish Chandra Dutta & Ors. reported in 1973 (2) SCC 197 (paragraph 

5) and in R. Kanthimathi and Ors., Vs. Beatrice Xavier reported in  (2000)9 SCC 339 (paragraph 6). 

In reply Ms. Sabita Mukherjee Roy Chowdhury has submitted that  the judgment in Arjunlal (supra) is distinguishable as in the agreement  for sale which has clearly stated that if the purchaser failed to pay the  defaulted installments the purchaser shall make over possession of the  land and house shown in schedule to the vendor which is conspicuously  absent in the present agreement. 

We have heard the Learned Counsels for the parties and have  carefully examined the pleadings, evidences and judgment under appeal.  There cannot be any iota of doubt that the parties have consciously  entered into the agreement for sale thereby altering their respective status.  The agreement for sale was entered to at a point of time when the earlier  suit for eviction was pending. 

The agreement for sale was entered into during the pendency of the  Ejectment Suit No.1386 of 2001 before the Small Causes Court. The  agreement for sale was on 15th February, 2006. The said agreement for  sale was marked as Exhibit without any objection from the  defendant/appellant. The defendant/appellant did not deny the due  execution of the said agreement. 

Curiously the defendant/appellant did not file any suit for specific  performance of the agreement for sale although she has alleged in her  written statement that she did not commit breach of the terms of the  agreement for sale. She did not make any counter-claim in her written  statement seeking specific performance for the agreement of sale. One 

would have expected that a person who is ready and willing to perform her  obligation would make a specific pleading to that effect and claim  appropriate reliefs in the suit. The denials are evasive and it seems that  the defendant had misled the landlord in entering into an agreement for  sale knowing fully well that she would not be able to perform her  obligations. In the process the plaintiff lost many years and still could not  recover the property. The evidence shows that the said agreement was  acted upon and parties have altered their position on the basis of the said  agreement. Once the agreement was entered into and acted upon the old  relationship of landlord and tenant came to an end.  

This would be obvious from the fact that in agreement for sale the  word rent was omitted and the defendant was asked to pay ‘occupancy  charges’

Ms. Sabita Mukherjee Roy Chowdhury, the Learned Counsel for the  appellant has laid much emphasis that the clause requiring the appellant  to pay ‘occupancy charges’ mentioned in the agreement for sale clearly  indicates that tenancy would continue. If the parties really intended to be  treated as buyer and seller then there should not have been any such 

provision for payment of any rent or occupancy chares till the entire  purchase money is paid. 

However, this argument is not acceptable as similar question came  up for consideration in R. Kanthimathi (supra) where the Hon’ble  Supreme Court had considered such payment made under the agreement  and held that the acceptance of the said amount was in terms of the  agreement and not de hors the agreement. 

In the instant case, the appellant was in possession of the suit  property and the acceptance of Rs.40,000/- as earnest money by the  landlord clearly shows that such acceptance was made in terms of the  agreement for sale and all other payments received are in terms of the said  agreement. 

When the plaintiff/landlord accepted the sum he actually acted under the agreement for sale. This acceptance was preceded by agreement  of sale, changing their relationship and this was what they had actually  intended. 

This has been clarified in Paragraph 8 of the R Kanthimathi (supra)  which stated that: 

This decision clearly spells out that once there is agreement of sale  between a land lord and a tenant, the old relationship as such  comes to an end. It goes on to record that even after the cancellation  of such agreement of sale the status of tenant is not restored as  such. In other words, on the date of execution of the aforesaid  agreement of sale their status as that of landlord and tenant  changed into a new status as that of a purchaser and a seller.”  

The parties who have acted in terms of the agreement for sale and  altered their relationship consciously cannot now go back to their old  relationship and seek relief in terms of such relationship. There is a  clear and conscious act on the part of the appellant to surrender her  right as a tenant to acquire a superior right of an owner of the second  floor of the suit premises. 

Whenever a certain relationship exists between two parties in  respect of a subject-matter and a new relationship arises as regards the  identical subject-matter the two sets of mutually contra relationships 

cannot co-exist as being inconsistent and incompatible, that is to say, if  the latter can come into effect only on termination of the earlier that  would be deemed to have been terminated in order to enable the latter  to operate. [See: Velu v Lekshmi & Ors., reported in AIR 1953  TRAVANCORE-COCHIN 584] 

In view of the above, we do not find any reason to interfere with the  judgment and decree passed by the learned Judge 10th Bench, City Civil  Court on 31st January, 2017. 

The appeal stands dismissed. 

However there shall be no order as to costs.  

 (Soumen Sen, J.) 

I agree 

(Ajoy Kumar Mukherjee, J.)

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