Vikramajit Sen, J.
1. Shri K.N. Chibber (Plaintiff No.1) and Shri Sat Pal Gulati (Plaintiff No.2) have filed this suit for possession and recovery of mesne profits against SAI (India) Limited, Defendant No.1. In the plaint it has been stated that the Plaintiffs have jointly raised a two and half storyed building on the plot No. 29, Community Commercial Centre, Basant Lok, Vasant Vihar, New Delhi and that they are joint owners and joint lessees thereof. This property was let out to Defendant No.1 in terms of a Lease Deed dated 3.5.1980. At the time of the filing of the suit the rent payable by Defendant No.1 (hereinafter referred to as `the Tenant') was Rs.16,940/- per month. For reason which need not be dilated upon the Plaintiffs determined the lease of the tenant by the issuance by issue of a legal Notice dated 6.11.1989. It has been averred that Plaintiff No.2 took a loan of Rs.2,50,000/- from Defendant No.2 in February 1980 and by way of security agreed that Defendant No.2 would be entitled to his share of the rent of the premises for five years. It has been pleaded that in addition, Agreement to Sell dated 8.8.1980 as well as General Power of Attorney dated 12.18.1980 were executed. Plaintiff No.2 also consented to suffer fraudulently a consent decree on 21.10.1980. Some amount of Plaintiff No.2's entitlement to half share of the rent of the suit premises was made over to Defendant No.2. The Tenant was also informed of these transactions to enable it to make payment of the half share of rent. Significantly, in its letter dated 23.2.1981 the Tenant refused to accept Defendant No.2 as the co-owner till the obtainment of requisite permission and the registration of the Sale Deed/transfer. The Tenant further stated in the letter that Plaintiff No.2 'shall be free to pass on the monthly rent payable by us in terms of Lease Deed dated 23rd May, 1980 to Defendant No2.' It has then been pleaded in the plaint that after payment of five years rent to Defendant No.2, Plaintiff No.2 revoked that arrangement. In paragraph 15 of the plaint it has been pleaded that the Tenant paid the Plaintiff No.2's share of the rent for August 1985 to Defendant No.2 and thereafter started depositing the rent under Section 27 of the Delhi Rent Control Act. Defendant No.2 filed an eviction petition under Section 14(1)(a) of the Delhi Rent Control Act. A spin-off that litigation was the Order of Hon'ble Mr. Justice P.K. Bahri dated 7.11.1988 in SAO 225 of 1987 where it was, inter alia, observed that Defendant No.2 had not become a co-owner or co-lessee. These proceedings were permitted to be unconditionally withdrawn by Defendant No.2 by the Order of the Additional Rent Controller dated 2.2.1989. It has also been pleaded that the Tenant sent a misconceived reply dated 26.3.1990 to the legal `Notice to Quit' dated 6.11.1989.
2. I have perused the Written Statement filed by the Tenant. The receipt of legal Notice dated 6.11.1989 has not been denied; and could not have been denied in view of the Tenant's reply dated 26.3.1990. The Tenant's position is that the termination of the tenancy was illegal and void and, thereforee, the tenancy subsists, and no claim for damages and mesne profits is maintainable or sustainable. On facts it has been asserted that since the inception of the lease the Tenant has been using the premises for office/commercial purposes and for purposes normally allied therewith or incidental thereto in consonance with the Lease Deed dated 23.5.1980. The Plaintiffs were, thereforee, not entitled to claim any injunction for alleged misuse of these premises. The defense to the suit is to be found within the confines of the Tenant's Reply dated 26.3.1990 and are substantially what has been outlined above.
3. While the suit has been pending adjudication Plaintiff No.1 has received his half share of the rent and his ownership is not under challenge. I.A. No. 5516/2001 came up before Court on 7.8.2001 and was accepted. By Order dated 24.8.2001 it was observed that - 'there was a dispute of ownership between Plaintiff No.2 and Defendant No.2. Both of them have settled their disputes by way of aforesaid application and the suit has been decreed in terms of the application in favor of the Plaintiff No.2. Since Defendant No.1 happens to be the tenant only and the dispute between Plaintiff No.2 and Defendant No.2 was that of the ownership of the premises, the interests of Defendant No.1 was in no way involved in the dispute between Plaintiff No.2 and Defendant No.2.' On that date the Court rejected the Tenant's plea that it be permitted to file a reply to the compromise application.
4. It is in this factual matrix that the application under Order XII Rule 6 has been filed for the passing of a decree on the basis of admissions. A substantially similar situation had arisen in Deenar Builders Pvt. Ltd. v. M/s. Khoday Distileries Limited, : AIR2000Delhi147 in which I had attempted to digest the law relating to suits for possession. It was my view that in the extant statutory regime, tenancies are governed either by the Delhi Rent Control Act or by the Transfer of Property Act. Where the monthly rental at the time of the filing of the action is not above Rs. 3500/-, it is the former Act which applies with all its attendant rigours for obtaining eviction of the tenant. After the decision in D.C. Bhatia v. U.O.I. J.T.1993 (7) SC 114, it is irrelevant when the tenancy commenced and at what initial rent. In the category of cases governed by the Transfer of Property Act, the tenant must be able to disclose that its tenure is protected by the covenants in a legally referable/readable Lease Deed. The fulcrum of the tenants' defense remains in this document alone. If the Lease Deed pertains to a tenancy tenure exceeding eleven months, and it has not been registered, it cannot be read in evidence and the tenant is relegated to position of continuing in possession at the will and sufferance of the landlord, from month to month. This is of great significance where renewals have allegedly been carried out, since such renewals are required to be evidenced in strict adherence to statutory stipulations. Where the renewal is to take effect for a period in excess of eleven months it ought to be through a registered document, unless it is predicated on the renewal clause of the Lease Deed, which renewal is not capable of controversy. The compulsion of registration is not an empty punctilio. It obviates the adoption of a stand that an oral agreement took place, which agreement would perforce require the reception of testimony from both adversaries, a testimony which is intrinsically self-serving and thereforee pregnant with undependability. The formality for reducing agreed terms to writing, and excluding oral evidence to controvert written terms has its genesis in the medieval Statute of Frauds.
5. It is incumbent on the Court that frivolous defenses should be sternly dealt with, and that the observations of the Supreme Court that litigation should not be allowed to linger on for no purpose, and should be put to an end at its earliest. In T. Arivandandam v. T.V. Satyapal & Anr., : [1978]1SCR742 , Justice Krishna Iyer had directed that if on a reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII of the Code. In that case the plaint was rejected by the Apex Court. These provisions were also resorted to in the case of I.T.C. Limited v. Debts Recovery Appellate Tribunal & Ors., : AIR1998SC634 . Reference in this regard can be made to the following observations of Supreme Court in Bharat Petroleum Corporation Limited v. Khaja Midahar Noor & Ors., : [1988]3SCR811 :
'In view of the paragraph 1 of S.107of the Act, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by both the Lesser and the lessee. In the absence of registered instrument, the lease shall be deemed to be 'lease from month to month'. It is clear from the very language of S.107 of the Act which postulates that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease. The lessee and the sub-lessee in the facts of this case continued to remain in possession of the property on payment of rent as a tenant from month to month. The High Court so found. We are of the opinion that the High Court was right'.
The provisions of Order XII Rule 6 have also been employed by different Benches of this Court to decree suits for possession inter alia, by my Learned Brothers Vijender Jain, J. in Abdul Hamid & Ors. v. Charanjit Lal Mehra & Ors., : 74(1998)DLT476 , and J.D. Kapoor, J. in Zulfiquar Ali Khan & Ors. v. J.K. Helene Curtis Limited & Ors., : AIR2002Delhi425 . Order XII was also resorted to in granting possession of tenanted premises on the issuance of a notice to quit in two Division Bench Judgments viz. Surjit Sachdev v. Kazakhstan Investment Services Pvt. Ltd. & Ors., : 66(1997)DLT54 and I.T.D.C. Ltd. v. M/s. Chander Pal Sood & Son, 2001 1 AD 353.
6. There is a very serious challenge to the ownership of Plaintiff No.2. Predicated on this, it is the contention of Mr. Tripathi that the notice is defective inasmuch as it has not been issued on behalf of Defendant No.2; and thereforee the Suit is not maintainable for lack of compliance with the statutory requirements of the Transfer of Property Act. In this context, reliance has been placed by Defendant No.1 on the stand adopted by Defendant No.2 in his Written Statement, where the ownership of Plaintiff No.2 has been contested. It has been vehemently stressed that this position has been asserted by Defendant No.1 as early as in its Reply to the notice to quit. Mr. Tripathi has forcefully argued that this Objection is substantiated even on a reading of is No.5516/2001 which was allowed by this Court and its imprimatur was given to the compromise between Plaintiff No.2 and Defendant No.2. The argument is that a perusal of the Compromise Agreement dated 7.3.2001 will reveal that it is prospective in its operation. It records that the Agreement to Sell dated 8.8.1980 executed by Plaintiff No.2 with Defendant No.2 stands cancelled; and further that the Decree and Order dated 21.10.1980 passed in Suit No.311/80 by the Court of Shri Y.S. Jonwal and Order dated 12.11.1999 passed in M-37/93 shall be of no consequence. Clause 6 thereof records the entitlement of Defendant No.2 to 'withdraw the half share of the amount deposited by SAE (India) Ltd. up to the period ending 31.12.2000.' It is Mr. Tripathi's contention that a retrospective cure is impermissible in law.
7. In Sailendra Narayan Bhanja Deo vs. The State of Orissa, : [1956]1SCR72 , the Constitution Bench had accepted the correctness of the view articulated in a plethora of precedents that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case. On facts the Apex Court opined that the compromise decree precluded the Plaintiff from reasserting the title, which had been negatived by the compromise decree although it related only to his claim to a part of the lands, namely the beds of the rivers therein mentioned. In Katikara Chintamani Dora and others v. Guatreddi Annamanaidu and others, : [1974]2SCR655 , the Hon'ble Supreme Court, relying on its earlier judgments, made the following pronouncements:-
'56. Order 23, Rule 3, code of Civil Procedure, not only permits a partial compromise and adjustment of a suit by a lawful agreement, but further gives a mandate to the court to record it and pass a decree in terms of such compromise or adjustment in so far as it relates to the suit. If the compromise agreement was lawful -- and as we shall presently discuss it was so -- the decree to the extent it was a consent decree, was not appealable because of the express bar in Section 96(3) of the Code.
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58. There can be no doubt that as soon as the court accepted the compromise agreement between the parties, and, acting on it, passed a decree in terms thereof, the compromise, to the extent of the matter covered by it, was complete. Nothing further remained to be done by the parties in pursuance of that agreement. The decree had become absolute and immediately executable on February 12, 1959 when the High Court in A.S. 668 of 1954 finally decided that Kadakalla was not an estate.
59. Be that as it may, the bar to an appeal against a consent decree in sub-section (3) of Section 96 of the Code is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or forgo their right of appeal by any lawful agreement or compromise, or even by conduct. thereforee, as soon as the parties made the agreement to abide by the determination in the appeal (A.S. 688) and induced the court to pass a decree in terms of that agreement, the principle of estoppel underlying Section 96(3) became operative and the decree to the extent it was in terms of that agreement, became final and binding between the parties. And, it was an effective in creating an estoppel between the parties as a judgment on contest.'
8. It will be of advantage to also reproduce paragraph (b) of the Preliminary Submissions of Defendant No.1 so that its legal stance can be ascertained directly from its own pleadings.
(b) Without prejudice to the contentions of replying defendants, it is submitted that it appears that there were some transactions between plaintiff No.2 Shri Sat Pal and defendant No.2 Shri Amrit Lal Arora, regarding the purported sale of half share of plaintiff No.2 under the perpetual lease to defendant No.2. The replying defendant received a letter dated 12.8.1980 from plaintiff No.2 Shri Sat Pal regarding the purported transfer of his share in the suit premises to defendant No.2. The defendant No.2 sent a letter dated 3.2.1981 to the replying defendant sending a copy of Agreement of Sale deed dated 8.8.1980 in respect of the purported sale of the said plaintiff No.2's share in the said suit premises along with photostat copy of the Power of Attorney dated 12.8.1980 executed by plaintiff No.2 in favor of Shri Kishan Chand, father of defendant No.2 Shri Amrit Lal Arora and also a Photostat copy of a certified copy of the decree dated 21.10.1980 in suit No. 311 of 1980 'Amrit Lal Arora ..Vs.. Sat Pal' appeared to be signed by Shri Y.S. Jonwal, sub Judge, Delhi. The letter dated 3.2.1981 was also signed by plaintiff No.2 Shri Sat Pal in confirmation of what was stated in the said letter of defendant No.2 Shri Amrit Lal Arora. The replying defendant further received a letter dated 3.2.19891 from plaintiff No.2 wherein he informed the replying defendant that he had sold his share in the said suit premises to defendant No.2 and requested the replying defendant to pay his share of rent i.e. Rs.7,000/- to the defendant No.2 from 1.9.1980. On the receipt of the above letters and documents, the replying defendant wrote to defendant No.2 a letter NO. SEC:Flat:011736 dated 23.2.1981 with a copy to plaintiff No.2 as follows: -
'Mr. Amrit Lal Arora,
28/1, Shakti Nagar,
Delhi-110 007.
Dear Sir,
Re: Premises No. 29, Community
Commercial Centre, Basant Lok,
Vasant Vihar, New Delhi, belonging
jointly to Shri Sat Pal and
Shri K.N. Chhibber.
Ref: Your letter ref. Nil dated 27.8.1980,
28.11.1980 and 3.2.1981 also signed
by Shri Sat Pal in confirmation of
the contents therein.
Please refer to your above letters and letter dated 12.8.1980 addressed to us by Shri Sat Pal. The subject was discussed also during the meetings you had with us together with Shri Satpal, we have explained to both Shri Sat Pal and to you that till you have obtained the requisite permission and the sale deed/transfer is duly registered by the Sub-Registrar of Assurances, we do not see how we can accept you as the co-owner of property No. 29, Community Commercial Centre, Basant Lok, Vasant Vihar, New Delhi.
However, in view of the representations made by both Shri Sat Pal and yourself and in view of the photo copy of the Decree in suit No. 311 of 1980 passed in the court of Shri Y.S. Jonwal, Sub Judge 1st Class, Delhi, forwarded to us enclosed to your letter dated 3rd February, 1981, Shri Sat Pal shall be free to pass on the monthly rental payable by us in terms of lease Deed dated 23rd May, 1980 to you. While claiming the amount payable by us in terms of the Lease Deed dated 23rd May, 1980, you should submit to us receipts by reference to the said Lease Deed and this letter duly counter-signed by Shri Sat Pal in confirmation of his consent to us to effect payment to you.
Our above agreement to pass on the amount of monthly rental is on the express understanding that the renewal of the Lease Deed at the appropriate time will have to be made by and between Shri Sat Pal and ourselves unless the requisite permissions are obtained and the Sale Deed/transfer is duly registered by the Sub Registrar of Assurances in the mean time.
Please acknowledge receipt of this letter by signing on a copy thereof in confirmation of your agreement to the contents of this letter. The same duplicate copy of the letter may also be signed by Shri Sat Pal in confirmation of his agreement to what is stated hereinabove.
On receipt of the duplicate copy duly signed as aforesaid together with the rent receipts for the month of August, 1980 to February, 1981 we shall effect payment of the amount due in terms of the Lease-Deed.
Yours faithfully,
S.A.E. (India) Limited.
Sd/-
c.c. Shri Satpal
53/83, Ramjas Road,
Karol Bagh, New Delhi
I hereby confirm I hereby confirm my agreement to my agreement tothe contents of the contents ofthis letter. this letter.Sd/- (Amrit Lal Arora) Sd/- (Sat Pal) Defendant No.2 Shri Amrit Lal Arora and the plaintiff No.2 Shri Sat Pal both signed the duplicate of the said letter in confirmation of their agreement with the condition and requirement stipulated in the said letter. Thereafter replying defendant paid plaintiff No.2's share/Shri Sat Pal's share of rent to defendant No.2 after having received rent receipts duly countersigned by plaintiff No.2.'
9. My attention has also justifiably been drawn to the pleadings in Suit No.1490 of 1997 filed by the present Defendant No.2 against Defendant No.1. In its Written Statement Defendant No.1 had inter alias averred that the present Plaintiffs were necessary parties to that suit as their presence was necessary in order to enable the Court to effectively and completely adjudicate upon and settle the questions involved in that suit. Defendant No.1 had asserted in that suit that prima facie, Defendant No.2 had no right to receive the rent. It was further pleaded that Defendant No.2 had no right to institute Suit No.1490/1997. Defendant No.1 had further stated that 'the said Agreement dated 12th August, 1980 between Shri Sat Pal and Shri Amrit Lal Arora (Plaintiffs herein) was illegal, against the law and could not have been entered into by them. Moreover, the Defendant, the DDA and Shri K.N. Chibber (one of the joint owners of the premises) were not party to the said Agreement and this Agreement is not binding on the Defendant.' It had also been averred that the 'the defendant was faced with a situation as to whom of the two persons Shri Sat Pal and Shi Amrit Lal Arora could claim half share of the rent in respect of the premises which was payable to Shri Sat Pal. As such a bonafide doubt arose as to whom half share of the rent of the premises amounting to Rs.7,700/- was payable. In order to avoid any legal complications lateron, which could injure or harm the interest of the defendant or invite legal consequences, if the rent is not paid in time to the person entitled to the same, the defendant filed an Applications under Section 27 of the Delhi Rent Control Act (hereinafter referred to as the Act) as detailed in Preliminary Submissions above. To these petitions Shri Sat Pal, Shri Amrit Lal Arora and Shri K.N. Chibber were made parties. All these applications are pending decision in the Court of Shrimati Mamta Sehgal, A.R.C. Delhi. It is not denied that the rent of the premises was increased in terms of the lease deed executed by the defendant in respect of the premises and was so deposited in Court.'
10. The first question that must be determined is whether the ownership of Plaintiff No.2 can be assailed by Defendant No.1 The relationship of landlord and tenant between the Plaintiffs and Defendant No.1 has its creation and inception in the Lease Deed dated 23rd May, 1980 which is Exhibit P-1; Defendant No.2 was not even within the contemplation of these parties at that time. Section 116 of the Evidence Act prescribes that 'no tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.' It is also not in contest that the Perpetual Lease granted by the Delhi Development Authority is in favor of the Plaintiffs alone. Defendant No.1 cannot challenge the Plaintiffs' title unless it reliably discloses that post the commencement of the tenancy, the title was uncontrovertibly lost by both the Plaintiffs. I have consciously stated so because it is well settled that even one out of numerous co-owners is legally competent to cause the issuance of a notice to quit, and is similarly empowered to initiate and maintain an action for the ejectment and eviction of the tenant. Precedential authority is available in the celebrated judgment of the Hon'ble Supreme Court in Sri Ram Pasricha v. Jagannath and others, AIR 1987 SC 2335 where it has been pronounced thus:-
'15. ..... Secondly, the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny tht the landlord had title to the premises at the commencement of the tenancy. Under the general law in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, thereforee, inconceivable to throw out the suit on account of nonpleading of other co-owners as such.
......
29. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, thereforee, no possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning o Section 13(1)(f). It is not necessary to establish tht the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.'
This case has been followed very recently by the Apex Court in Dhannalal v. Kalawatibai, : [2002]SUPP1SCR19 . Even if some doubt may nevertheless be perceived in the title of Plaintiff No.2, the suit can be decreed keeping Plaintiff No.1 alone in sight. It needs to be appreciated however, that there is a very significant difference between an owner and a landlord, and Mr. Tripathi has not endeavored to show that Plaintiff No.2 has ceased to be even a landlord. This submission that Plaintiff No.2 is fallacious especially in view of the Defendant No.1's conduct inasmuch as it has gone to the extent of insisting that the Rent Receipts should be signed by the Plaintiff No.2. For the principle of estoppel to be available to Defendant No.1 it must be conclusively clear that firstly the compromise decree was passed in ails to which Defendant No.1 was a party; secondly, that Defendant No.1 acted upon the compromise and had altered its position to its detriment; and thirdly, that the said decree was intrinsically efficacious for effecting a change in the title of the property. None of these constituents exist. Plaintiff No.1 had filed a second appeal in this Court against the Order of the Rent Control Tribunal converting a rent-deposit direction from Section 15(1) to Section 15(4) of the Delhi Rent Control Act. Even through P.K. Bahri, J. was at pains to mention that the findings were only prima facie, the decision is apposite on all the three elements mentioned above. The relevant part of the Order, with which I respectfully agree, reads thus:-
' .... It has been argued on behalf of co-owner of the appellant that the appellant's right in the property would stand jeopardised if any order is made which has the effect of giving recognition to respondent No.2 as co-owner or co-landlord of the property in question. It is true that unless and until the appellant is shown to be aggrieved by the impugned order the appellant cannot be permitted to challenge the same. A copy of the lease deed, which has been filed before me, shows that the lessee is prohibited from selling, transferring, assigning or otherwise parting with possession of the whole or any part of the commercial plot in question except with the previous consent in writing of the Lesser. It is also provided in the lease deed that if any term of the lease is violated, the paramount title holder i.e. The DDA could forfeit the lease. So, it is contended on behalf of the appellant that any agreement entered into by Sat Pal with respondent No.2 which has the effect of transferring even the possession of the plot or part thereof would put the rights of the appellant in the said property in jeopardy. It is evident that only prima facie findings were required to be given by the Tribunal while deciding the question whether the interim order under Section 15(4) passed by the Additional Rent Controller was to be maintained or modified. It is obvious that no immovable property of a worth of more than Rs.100/- could be transferred without executing and registering the sale deed. Respondent No.2 obviously had not become the co-owner or co-lessee of the property in question by the mere fact that Sat Pal, the co-lessee of the property in question, had entered into an agreement for sale of his share in the property with respondent No.2 and even though respondent No.2 had paid full consideration even then respondent No.2 as yet is not, prima facie, clothed with any title to the property in question. It is true that the definition of `landlord' given in the Act includes a person who is entitled to receive rent or is presently receiving the rent but in the present case the question which wold ultimately arise for decision on merits after the parties had led evidence is whether the said agreement to sell executed by Sat Pal in favor of respondent No.2 even legally entitles the respondent No.2 to realise the rent from the tenant. I would not like to express any final opinion on the respective rights of the parties because those are yet to be determined by the Additional Rent Controller after giving an opportunity to all the parties for leading evidence. It cannot be said that the appellant has no grievance against the impugned order because, prima facie, when it is clear that no transfer of possession of the property could be made without the prior permission of the DDA and if such transfer takes place it would give a ground to the DDA for cancelling the lease. So, obviously the rights of the appellant are being prejudiced by the acts of Sat Pal and respondent No.2 in entering into an agreement which, prima facie, appears to violate the terms of the lease deed.
It has been urged on behalf of respondent No.2 that respondent No.2 had obtained a declaratory decree against Sat Pal showing that respondent No.2 has become co-owner of the property and has at least become entitled to receive the rent and in fact, respondent No.2 has been receiving the rent from the tenant although the receipts used to be countersigned by Sat Pal for some time. A declaratory decree to which neither the appellant nor the DDA was the party would not have any binding force prima facie. Respondent No.2 claims to get the rights in the property by virtue of the agreement to sell. If the agreement to sell is in violation of the terms of the lease deed granted by the DDA, then any term mentioned in the agreement to sell which is contrary to the terms of the perpetual lease deed would be invalid. As already mentioned by me above, the agreement to sell claims to pass on symbolic possession of the share of Sat Pal in the property in question to respondent No.2 which, prima facie, violates the terms of the lease deed. Hence, prima facie, the said particular term of the agreement to sell is to be treated as void. At any rate, the Rent Control Tribunal was not right in giving the finding that Respondent No.2 has been able to establish, prima facie, that he has become co-landlord of the premises in question. It was a fit case where the order made by the Additional Rent Controller under Section 15(4) of the Act should have been allowed to remain intact till the disposal of the eviction petition on merits.'
11. In Ruby Sales And Services (P) Ltd. and another v. State of Maharastra and others, : (1994)1SCC531 the Apex Court has opined that a 'compromise decree does not stand on a higher footing than the agreement which preceded it. A consent decree is a mere creature of the agreement on which it is founded and is liable to be set aside on any of the grounds which will invalidate the agreement.' There is uniformity in the opinion of various High Courts that until a Sale Deed is executed the rights in immovable property remain immutable. The Full Bench of the Allahabad High Court has observed in Mahendra Nath and another v. Smt. Baikunthi Devi and others, : AIR1976All150 that 'a person who has got only a contract for sale or has got a decree for the specific performance of the contract, has got no interest in the land. He can only enforce the contract compelling the other side to execute the sale deed failing which the Court might execute a sale deed for the defendant, but the rights and liabilities under the contract do not attach to the land. The key words in Section 30 of the U.P. Consolidation of Holdings Act are 'the rights, title, interests and liabilities in their respective holdings shall cease.' The question of ceasing of the interests would arise only when the plaintiff had an interest in the land, but till the sale deed was executed, the plaintiff could not get any right in the land. There is absolutely no warrant for holding that the agreement for sale stands on the same footing as that of a sale and the lower appellate court has erred in holding to the contrary.' In Hiralal Agarwala v. Bhagirathi Gore and others, : AIR1975Cal445 the Division Bench has observed that 'a decree for specific performance passed on the basis of a contract for sale of immovable property does not create any interest in the property in favor of the decree-holder. It only super-adds the sanction of the court to enforce it through the medium of court. As such the decreeholder can enforce the said contract and get it enforced through court, subject to whatever interest the judgment-debtor had at the time of execution.'
12. In this analysis the conclusion that the suit deserves to be decreed at this very stage, appears to me to be irresistible. The issuance of the legal notice to quit stands admitted. There is no substance in the defense presented to the plaint. The suit for possession could have been successfully prosecuted by Plaintiff No.1 alone. In any event there is no legal infirmity in the title or legal status of Plaintiff No.2 to also successfully maintain an ejectment suit against Defendant No.1, either individually or along with Plaintiff No.1. No defense to the essential pleadings in the plaint have been disclosed by Defendant No.1.
13. A decree of possession of the property as per plan attached is hereby passed in favor of the Plaintiffs and against the defendant No.1.
14. The prayer for passing a decree for possession has already been granted. The claim for future damages/mesne profits remains to be adjudicated. I direct the Deputy Registrar (Original) to conduct an enquiry in respect of this prayer in the plaint. List before Deputy Registrar (O) on May 12, 2003 for further proceedings.
15. For consideration of the Report, the suit be listed before the Court on September 8, 2003.
16. All the pending applications also stand disposed of.