Satish Kumar Mittal, J.
1. The petitioners are the landlords. In the instant writ petition, they have challenged the order dated 29.11.2000 (Annexure P12) passed by the Financial Commissioner, Haryana, vide which, while setting aside the orders dated 21.01.1997 (Annexure P10) and dated 11.08.1998 (Annexure P11) passed by the Collector and the Commissioner, respectively, the application of the petitioners for ejectment of respondents No. 3 to 5 under Clause (i) of Sub-section (1) of Section 9 of the Punjab Security of Land Tenure Act, 1953 (hereinafter referred to as 'the Act') has been dismissed.
2. The brief facts of the case arc that the petitioners are the owners of land measuring 85 Kanals 14 Marias situated in Village Sugh, District Yamuna Nagar, Respondents No. 3 to 5 (hereinafter referred to as 'respondents-tenants') are their tenants on the aforesaid land since, 1966. On 18.09.1990, Smt. Charanjit Kaur widow of Surjit Singh, Harkaran Singh and Jaskaran Singh sons of Surjit Singh, the petitioners and their predecessors (hereinafter referred to as 'petitioners-landlords), filed an application on Form K-1 under Section 9 of the Act before the Assistant Collector 1st Grade, Jagadhri for ejectment of the respondents-tenants under Clause (i) Sub-section (1) of Section 9 of the Act on the ground that they are the small land owners and the respondents-tenants, who were inducted after the year 1956, are liable to be ejected from the land in question. In that application, it was pleaded by the petitioners-landlords that they are the small land owners and they do not have any other land except the land in question mentioned in the application in any other village or in the State of Haryana since 1953. It was also pleaded that no land was declared surplus in their or their predecessors' hands. It was further pleaded that the respondents-tenants were owning land more than the petitioners-landlords. In this regard, it was mentioned that Mohinder Singh (respondent No. 3) was owner in possession of 58 kanals 9 marlas of land; Tejinder Singh (respondent No. 4) was owner in possession of 51 Kanals 8 Marlas of land and Surinder Singh (respondent No. 5) was owner in possession of 53 Kanals 7 Marlas of land situated in the same village. In view of the aforesaid facts, it was pleaded that the respondents-tenants were liable to be ejected from the land in question.
3. The aforesaid application was hotly contested by the respondents-tenants. Though, they did not specifically contest that the petitioners-landlords were not the small land owners, but they pleaded that they themselves were small land owners and have purchased the land mentioned in the ejectment application with the help of their family money. They also did not dispute the fact that they were inducted as tenants in the year 1966.
4. During the pendency of the aforesaid ejectment application, both the parties entered into an agreement to sell the land in question on 03.05.1992. Copy of the said agreement is Annexure P-3. In the said agreement, it was agreed that the land in question would be sold to the respondents-tenants at the rate of Rs. 1.50 lacs per acre. The respondents-tenants also agreed to pay Rs. 1 lac as earnest money to the petitioners-landlords. Out of this amount of earnest money, Rs. 50,000/- were paid to the petitioners-landlords on the same day i.e. on 03.05.1992 and the remaining amount of earnest money was to be paid upto 30.06.1992. It was further agreed that the balance amount of the sale consideration shall be paid by the respondents-tenants at the time of execution of the sale deed. The sale deed was to be executed in two parts. Regarding half share, the sale deed was to be executed upto 31.03.1993 and regarding the remaining share, it was to be executed by 31.12.1993. It was further agreed that in case the respondents-tenants do not get the sale deed executed within he time bound date the earnest money paid by them will be treated as forfeited, and the agreement to sell will be treated as cancelled; and in case the petitioners-landlords refuse to execute the sale deed as per terms of the agreement, the respondents-tenants will be at liberty either to get double the amount of earnest money or to get the sale deed executed in their favour through the Court. As per the agreement, the total sale consideration was Rs. 16,06,875/- whereas the respondents-tenants had paid only Rs. 50,000/- as part of the earnest money at the time of execution of the agreement to sell. Admittedly, after the execution of the aforesaid agreement to sell, the respondents-tenants never paid the remaining part of the earnest money nor a penny was paid towards the remaining sale consideration. It is also pertinent to mention here that after the execution of the agreement to sell, the respondents-tenants did not pay any Batai to the petitioners-landlords.
5. When the respondents-tenants did not pay the remaining part of the earnest money by the specified date and did not honour the aforesaid agreement, the petitioners-landlords gave notice dated 31.10.1992 (Annexure P-4) to them for cancellation/termination of the agreement and for forfeiture of the part of earnest money i.e. Rs. 50,000/- paid by them in terms of the clause of the agreement. It is pertinent to mention here that neither any reply to the aforesaid notice was given by the respondents-tenants nor any suit forspecific performance of the agreement to sell was filed by them. During the course ofthe aforesaid ejectment proceedings, respondent No. 3 Mohinder Singh appeared in thewitness box and in his cross-examination he admitted that they have neither paid thebalance amount to get the sale deed executed nor they were ready to get the sale deedexecuted.
6. Both the parties led the evidence in the aforesaid ejectment proceedings before the Assistant Collector, Ist Grade. The respondents-tenants took the plea that after entering into the agreement to sell the land in question, the relationship of landlord and tenant between the parties came to an end and after that they are in possession of the land in question as prospective vendees, Therefore, they are not liable to be ejected under the provisions of the Act on the ground that the petitioners-landlords are the small land owners. They further pleaded that they are entitled to protect their possession under Section 53-A of the Transfer of Property Act, 1887 (hereinafter referred to as 'T.P.A.').
7. The Assistant Collector Ist Grade, vide his order dated 24.05.1995 (Annexure P-9) dismissed the ejectment application filed by the petitioners-landlords while holding that after execution of the agreement to sell, the relationship of landlord and tenant between the parties came to an end. It was also observed in the said order that the petitioners-landlords did not produce any proof or evidence to show that they have no other land in the District or India besides the land in question.
8. Feeling aggrieved against the aforesaid order, the petitioners-landlords filed an appeal before the Collector, Yamuna Nagar. After hearing the learned counsel for the parties and perusing the record, the Collector, vide order dated 21.01.1997 (Annexure P-10) allowed the said appeal and set aside the order passed by the Assistant Collector Ist Grade, and ordered the ejectment of the respondents-tenants. It was held that the petitioners-landlords are the small land owners, therefore, the respondents-tenants are liable to be ejected. Regarding the second issue, it was held that the relationship of landlord and tenant between the parties is existing and the aforesaid agreement to sell did not terminate the said relationship. Unless the terms of the agreement to sell are fulfilled, the relationship would continue to be as it was earlier. It was also held that it was the respondents-tenants who did not abide by the terms of the agreement, whereas the petitioners-landlords were always ready and willing to perform their part of the agreement.
9. This order of the Collector was confirmed in appeal by the Commissioner vide hisorder dated 1.08.1998 (Annexure P-11). The respondents-tenants further filed a revisionpetition against the aforesaid orders passed by the Collector and the Commissioner. TheFinancial Commissioner, vide order dated 29.11.2000 (annexure P-12) allowed the saidrevision petition. While setting aside the orders passed by the Collector as well as theCommissioner, the Financial Commissioner dismissed the ejectment application filed bythe petitioners-landlord on the ground that after the execution of the agreement to sellthe relationship of landlord and tenant between the parties came to an end, and the petitioners-landlords are debarred from enforcing any right arising from earlier tenancywhich was not expressly kept intact. It was further held that so far as enforcement of theagreement to sell between the parties is concerned, the remedy lies some where else butthe petitioners-landlords cannot get the respondents-tenants ejected on the grounds mentioned in their ejectment application. This order has been challenged in the instant writpetition by the petitioners-landlords.
10. Shri Anil Khetarpal, learned counsel for the petitioners-landlrods, submitted that the view taken by the learned Financial Commissioner in passing the impugned order is wholly erroneous. He submitted that the learned Financial Commissioner has not set aside the finding recorded by the Collector as well as the Commissioner to the effect that the petitioners-landlords are the small land owners and they are entitled to get the respondents-tenants ejected under Clause (i) Sub-section (1) of Section 9 of the Act. The ejectment order passed in their favour has been set aside by the learned Financial Commissioner only on the ground that after execution of the aforesaid agreement to sell, the relationship of landlord and tenant between the party came to an end and the tenancy was superseded by the aforesaid agreement. Thereafter, the possession of the respondents-tenants was of prospective vendees and the revenue authorities have no authority-to entertain any proceedings initiated by the petitioners-landlords for ejectment of the respondents-tenants. For that purpose, the learned Financial Commissioner has relied upon a decision of this Court in Chhanka Ram v. Rehman and Anr., 1973 P.L.J. 641.
11. Learned counsel for the petitioners-landlords further submitted that as far as the aforesaid agreement to sell is concerned, execution of the same is not disputed but it was a mere agreement which was not honoured by the respondents-tenants. They were never ready and willing to perform any part of the said agreement. He submitted that the respondents-tenants were required to pay Rs. 1 lac as earnest money under the said agreement. But they only paid Rs. 50,000/- on the date of execution of the agreement and the remaining amount of the earnest money was not paid by the stipulated date. Learned counsel submitted that what to talk of the sale consideration, the respondents-tenants did not pay even the entire earnest money under the aforesaid agreement. They were never ready and willing to perform their part of the contract. Thereupon, the petitioners-landlords cancelled/terminated the aforesaid agreement by serving a notice upon them. Even the respondents-tenants did not file any reply to the said notice and also did not file the suit for specific performance of the aforesaid agreement to sell. In these circumstances, they are not entitled for any protection under Section 53-A of the T.P.A. Learned counsel for the petitioners submitted that in the aforesaid circumstances, it cannot be held that by mere execution of an agreement to sell, without doing any further act in furtherance of fulfilling the agreement, tenancy of the respondents-tenants will merge into the right of prospective vendee. He further submitted that it cannot be said that after execution of the agreement, the relationship of landlord and tenant between the parties ceases to exist. Mere execution of the agreement to sell by the landlord and the tenant does not determine the tenancy by implied surrender. There was no express surrender of the tenancy in the agreement. Learned counsel further submitted that even if some rights were created by the aforesaid agreement to sell, those rights were vanished when the respondents-tenants failed to honour the said agreement. In support of his contentions, learned counsel for the petitioners-landlords relied upon Nathulal v. Phoolchand, 1969(3) Supreme Court Cases 120, Banshilal v. Noor Mohammad, A.I.R. 1970 Rajasthan 244, Rangarao Ramarao Deshpande v. Channapa Basappa Lakshmanahalli and Ors., 1974 Rent Control Reporter, 564, Chandgi Ram and Anr. v. Bhagirath and Anr., (1993-3)105 P.L.R. 636, Sudhir Kumar Chatterjee and Ors. v. B.N. Sinha, 1995 (2) (Rent Control Reporter 553, Gursaran v. Shakuntala, 1996(2) Rent Control Reporter 102 and Smt. Joginder Kaur v. HUF of Kidar Nath & Sons and Ors., (2000-2)131 P.L.R. 573.
12. On the other hand, learned counsel for the respondents-tenants submitted that the proceedings under the Act are of summary in nature and the complicated question like the relationship of landlord and tenant between the parties cannot be decided in such summary proceedings. In support of his contention, learned counsel referred to a decision f the Financial Commissioner in Dial Singh v. Ajit Singh, 1985 P.L.J. 400. On the main issue, learned counsel submitted that in the present case the agreement to sell executed between the parties terminated the relationship of landlord and tenant and after its execution, the tenancy in favour of the respondents-tenants came to an end and they can protect their possession under Section 53-A of the T.P.A. In support of his contention, learned counsel relied upon the decision of this Court in Chhanka Ram v. Rehman and another (supra).
13. I have heard learned counsel for the parties and have perused the record of the case.
14. The sole question which has to be determined in the present case is that what is the effect of agreement to sell dated 03.05.1992 on the tenancy in question? Whether by execution of the aforesaid agreement to sell the relationship of landlord and tenant between the parties came to an end? or whether the right of tenancy has been merged into the right of prospective vendee, who is empowered to protect his possession under Section 53-A of the T.P.A.?
15. In the instant case, undisputedly, the aforesaid agreement to sell was executed on certain terms and conditions. It is also undisputed that none of the terms of the said agreement was complied with by the respondents-tenants. They even did not pay the full earnest money. Out of the total sale consideration of Rs. 16,06,875/- only an amount of Rs. 50,000/-, was paid as part of the earnest money at the time of execution of the agreement to sell. Thereafter, nothing has been paid. The respondents-tenants even stopped paying the Batai to the petitioners-land lords. They were never ready and willing to perform their part of the contract. They neither gave any reply to the notice served by the petitioners-landlords cancelling/terminating the aforesaid agreement to sell nor field nay suit for specific performance of the agreement. In light of these facts and circumstances, the questions whether by mere execution of an agreement to sell at one point of time, the relationship of landlord and tenant between the parties comes to an end?, and the right of tenancy can be said to have merged into the greater right of prospective vendee, particularly when the respondents-tenants were never ready and willing to perform their part of the agreement. In my opinion, such kind of agreement to sell does not terminate the relationship of landlord and tenant between the parties nor it will amount to merging of tenancy right into larger right of a prospective vendee. It is well settled that mere execution of an agreement to sell does not create any right or interest. Section 54 of the T.P.A. clearly provides that a contract for sale of immovable property does not, of itself, create an interest in or charge on such property. Clauses (d) and (f) of Section 111 of the T.P.A. are relevant for the purpose of determination of the present controversy. Clause (d) provides that a lease of immovable property determines in case the interests of the lessee and lessor in the whole of the property become 'vested at the same time in one person in the same right,. From the wording 'vested at the same time in one person in the same right' it can not be said that by mere execution of the agreement to sell right of ownership has been transferred in the lessee, because the right of lessee and the lessor must be the same. Mere execution of the agreement to sell does not confer such right of ownership to the vendee and such right comes into existence only after execution of the sale deed and not prior to that. Therefore, by mere execution of the agreement to sell the property in question, the ownership right of the petitioners-landlords did not vest in the respondents-tenants. Therefore, it cannot be said that by execution of such agreement the right of lessor (petitioners-landlords) has come to an end because it is well known that mere execution of the agreement to sell does not itself confer any right or interest in the property.
16. Further, by execution of the agreement to sell in the present case, it cannot be said that the respondents-tenants have surrendered the tenancy in view of Clause (f) of Section 111 of the T.P.A. Admittedly, there is no clause in the agreement to sell that after its execution, the tenancy will come to an end nor there was any clause that after the said agreement, the landlords will not be entitled to recover the rent. In these circumstances, there is no question of any surrender of the tenancy, either expressly or impliedly.
17. In a similar controversy, the Rajasthan High Court in Banshilal v. Noor Mohammad (supra) has held as under:-
'On hearing the learned counsel for the parties and perusing the agreement Ex. A-1. I have come to the conclusion that the finding arrived at by the learned District Judge is wholly unjustified. There is no question of surrender - express or implied of the lease in the present case. At best if at all the defendant-tenant could press into service any clause under Section 111, it is Clause (d) under which a lease of immovable property determines in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. It is, however, amply clear that merely by execution of the agreement to sell the property in question the interest of lessor Banshilal did not become vested in the lessee Noor Mohammad and by no stretch of imagination can it be said that on execution of the agreement Ex.A-1, (even if it is assumed for the sake of disposal of this appeal that this agreement was executed) the rights of the lessor came to an end. It is too well known that by mere execution of an agreement to sell there is no transfer of interest in the property. Learned counsel for the respondent wanted to press into service the doctrine of part performance under Section 53-A of the Transfer of Property Act to show that Noor Mohammad had become owner of the property and was entitled to defend his title on its basis. Suffice it to say, that such a plea cannot be raised in support of the application for recording compromise of suit under Order 23, Rule 3 C.P.C., and it may be open to the defendant to raise such a plea if so advised at an appropriate stage but he cannot take any advantage of it for showing that the suit for eviction based on tenancy has been adjusted merely by an agreement to sell. It is conceded by the learned counsel for the respondent that no sale deed has yet been registered in favour of Noor Mohammad nor the balance of sale price Rs. 66,000/- has been paid to the appellant Banshilal. In these circumstances there is no room for argument that the interest of the lessee and the lessor in the property in question have become vested at the same time in the lessee in the same right. In these circumstances there is no escape from the conclusion that the lease in question cannot be said to have been determined merely by execution of an agreement to sell Ex.A-1. In this view of the matter the second appeal No. 353 of 1969 deserves to be allowed.'
18. Similarly, in Sudhir Kumar Chatterjee and Ors. v. B.N. Sinha, (supra), the Patna High Court has held that by execution of the agreement to sell the relationship of landlord and tenant does not change and the tenant is liable to be ejected on the grounds available under the Rent Act. Similarly, in Smt. Joginder Kaur v. HUF of Kidar Nath and Sons and Ors. (supra), this Court has held that relationship of landlord and tenant would not come to an end merely because an agreement to sell has been entered into between the parties.
19. The next question, which is to be determined, is as to whether under the aforesaid agreement to sell the respondents-tenants are entitled to protect their possession under Section 53-A of the T.P.A.? To seek protection of this Section, the prospective vendee is required to establish three factors i.e. (i) that in part performance of the contract, he has taken possession of the property or if he being already in possession continues in possession of the same; (ii) that he has done some act in furtherance of the contract; and (iii) that he has performed or is willing to perform his part of the contract. In the instant case, after execution of the agreement to sell, admittedly the respondents-tenants have done nothing. They even did not pay the part of the earnest money. Neither any effort was made by them to perform their part of the agreement nor they gave any reply to the notice given by the petitioners. Thus they were never ready and willing to perform their part of the agreement. It was not mentioned in the agreement that after its execution, the tenancy will come to an end and they will remain possession of the land in question as prospective vendees. In these facts and circumstances it cannot be said that the respondents-tenants are legally entitled to the protection provided to the prospective transferee under Section 53-A of the T.P.A.
20. This Court, while replying to the similar question in Inder Kumar Johar v. Kailash Devi, (1998-2)119 P.L.R. 795 has held as under:-
'It is well known that this doctrine of Section 53-A of the Transfer of Property Act is an equitable doctrine. The object of the said provision is to prevent a transferor or his successor-in-interest from taking possession then on account of non-registration of the document provided the transferee has performed his part of the contract. However, the basic ingredients must be satisfied that it should be contract to transfer immovable property. The contract must be for consideration. It must be in writing signed by or on behalf of the transferor. The terms can be ascertained from the said written agreement. The transferee should have taken possession or should have already been in possession. He should be willing to perform his part of the contract or that he must have done some act in furtherance of the contract. This question had been considered by the Gauhati High Court in the case of Sunil Kr. Sarkar ((deceased by LR's) v. Aghor Kr. Basu (deceased by LR's), A.I.R. 1989 Gauhati 39. In this regard the scope of Section 53-A of the Transfer of Property Act was considered and in paragraph 9 it was held:
'Whether a tenant continuing in possession after a contract to transfer written and signed by the land is protected by or under Section 53A? The pre-requisites for invoking the equitable doctrine of part performance are : (a) that there must be a contract to transfer for consideration immovable property in writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (b) that it must be shown that the transferee has, in part performance of the contract either taken possession of the property or any part thereof, or the transferee being already in possession, continues in possession and has done some act in furtherance of the contract; and (c) that the transferee has performed or is willing to perform his part of the contract.'Pertaining to a tenant who is claiming himself to be in possession in part performance of the contract, the Court went on to hold and concluded:'Therefore, the tenant must show either from the contract or some other material or evidence that he continued to possess the property not in the capacity as a tenant, for example, he does not pay the rent under one of the terms of contract of sale in order to show that his possession is not in the capacity as a tenant, but in part-performance of the contract. In addition to it, the tenant has to show that he has done some act in furtherance of the contract, such as payment of necessary taxes to show that he was liable to pay the taxes as his possession was no longer as that of a tenant. Therefore, if a tenant has been in possession in his capacity as a tenant and not in part-performance of the contract, he cannot take the plea of protection under Section 53A.'
21. The decision in Chhanka Ram v. Rehman and Anr. (supra) relied upon by learned counsel for the respondents-tenants is not applicable to the facts and circumstances of the present case because in that case a positive finding was recorded that the prospective transferees (tenants) were always ready and willing to perform their part of the agreement. In the instant case, the position is otherwise. The instant, case is covered by the decision of this Court in Chandgi Ram and Anr. v. Bhagirath and Anr. (supra) wherein it has been held that mere execution of the agreement to sell the property does not confer any right or interest in the lessor and the landlord cannot be debarred from enforcing again transferee or any person claiming under him, any right in respect of property of which transferee has taken or continued in possession, other than the right expressly provided by terms of the agreement.
22. In view of the aforesaid discussion, I am of the opinion that the respondents-tenants are not entitled for any protection under Section 53-A of the T.P.A. nor it can be said that by mere execution of the agreement to sell, the relationship of landlord and tenant between the parties came to an end. I also do not find any force in the submission made by learned counsel for the respondents-tenants that the ejectment proceedings before the revenue court under the Act are summary in nature and the complicated questions of fact and law regarding relationship of landlord and tenant between the parties cannot be decided and gone into by the revenue court. It is well settled that even in such summary proceedings the question relating to the existence of relationship of landlord and tenant can be decided by the revenue court. However, the decision under Section 77 of the Punjab Tenancy Act between the landlord and tenant between the parties would not operate as resjudicata and be open to challenge in a subsequent suit, as has been held by the Full Bench of this Court in Amar Singh and Anr. v. Dalip, (1981)83 P.L.R. 649 (F.B.).
23. Faced with the aforesaid situation, learned counsel for the respondents-tenants submitted that in the present case it has not been established that the petitioners-landlords are the small land owners and they are entitled to get the respondents-tenants ejected under Clause (i) Sub-section (1) of Section 9 of the Act. It has been further submitted that at present the respondents-tenants are not possessing any land, therefore, they are not liable to be ejected unless and until they are allotted equivalent surplus land in accordance with the provisions of Section 10A of the Act. In my view, there is no force in the aforesaid contention of learned counsel for the respondents-tenants. The Financial Commissioner has not reversed the findings of the Collector as well as the Commissioner regarding the ejectment of the respondents-tenants under Clause (i) Sub-section (1) of Section 9 of the Act. It has been found as a matter of fact by the revenue authorities that the petitioners-landlords are the small land owners. It has also come in evidence that the respondents-tenants are owning and possessing land more than the petitioners-landlords in their own rights. This, fact has been established on record by documentary evidence as well as by oral statement of DW3 Uttam Chand, Patwari (Annexure P-6). Even the respondents-tenants have not denied the averments made by the petitioners-landlords in their ejectment application that when the ejectment application was filed, the respondents-tenants were owning 164 Kanals 4 Marias of land.
24. In view of the aforesaid discussion, this writ petition is allowed. The impugned order dated 29.11.2000 (Annexure P-12) passed by the Financial Commissioner is set aside and the orders dated 21.01.1997 (Annexure P-10) and dated 11.08.1998 (Annexure P-11) passed by the Collector and Commissioner, respectively are restored.
25. No order as to costs.