Dismissed

Babu Lal Sharma S/O Late Shri Ramgopal Sharma v. Mohammed Arif S/O Late Shafi Mohammed

Rajasthan HC23 Jul 2025CW/10436/2025

Case brief

AI extract

What is this about?

Tenant challenged eviction under the Rajasthan Rent Control Act claiming ownership via an agreement to sell pending specific-performance appeal. The High Court held a tenant does not become owner absent a decree or sale deed, found no error in refusing additional issues, and rejected the writ petition.

What did the court decide?

Writ petition, stay application and pending applications dismissed; liberty to seek restoration of possession if the first appeal succeeds.

Babu Lal Sharma S/O Late Shri Ramgopal Sharma Vs… — Specific Performance | Rajasthan HC (2025)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 10436/2025

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Babu Lal Sharma S/o Late Shri Ramgopal Sharma, Aged About 69 Years, R/o Swatantra Senani Bhawan, Sheetla Ka Bas, Sikar, Tehsil And District Sikar.

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----Petitioner

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Versus

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Mohammed Arif S/o Late Shafi Mohammed, R/o Madina Colony, Plot No. 17, Raghunathpuri, Jhotwara, Jaipur (Raj.)

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Mohammad Mubarik S/o Late Shafi Mohammed, R/o Madina Colony, Plot No. 17, Raghunathpuri, Jhotwara, Jaipur (Raj.)

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Mohammed Tarik S/o Late Shafi Mohammed, R/o Madina Colony, Plot No. 17, Raghunathpuri, Jhotwara, Jaipur (Raj.)

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Najmin D/o Late Shafi Mohammed, R/o Madina Colony, Plot No. 17, Raghunathpuri, Jhotwara, Jaipur (Raj.)

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Raju Devi D/o Late Ramgopal, R/o Swatantra Senani Bhawan, Sheetla Ka Bas, Sikar, Tehsil And District Sikar.

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Chandra Devi D/o Late Ramgopal, R/o Swatantra Senani Bhawan, Sheetla Ka Bas, Sikar, Tehsil And District Sikar.

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----Respondents

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For Petitioner(s) : Mr.Anil Kumar Sharma For Respondent(s) : Mr.Ashok Sharma

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JUSTICE ANOOP KUMAR DHAND Order

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23/07/2025

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Reportable

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For convenience of exposition, this judgment is divided in the following parts:-

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INDEX

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(1) The Challenge :-…………………………………………….……..….......2 (2) Submissions by the petitioner:-……….………….………….…..2 (3) Submissions by the respondents:-….……………………….…..4

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(4) Analysis, Discussions & Findings:-….….……………………….5 (5) Analysis, Discussions & Findings:-………….…………………9

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The challenge:-

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By way of filing this writ petition, a challenge has been led to the impugned judgment dated 27.05.2025 passed by the Appellate Rent Tribunal (hereinafter referred to as “the Appellate Tribunal”) by which the appeal submitted by the petitioner’s father (now deceased) against the judgment dated 25.02.2020 passed by the Rent Tribunal, Sikar (hereinafter referred to as “the Tribunal”) has been rejected.

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By passing the judgment dated 25.02.2020, the Tribunal has allowed the application submitted by the respondents/landlord (hereinafter referred to as “the respondents”) under Sections 6 and 9 of the Rajasthan Rent Control Act, 2001 (hereinafter referred to as “the Act of 2001”) and an eviction order has been passed against the petitioner/tenant (hereinafter referred to as “the petitioner”) to vacate the subject premises and pay the revised rent to the respondents.

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Submiss ions by the petitioner :-

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Learned counsel for the petitioner submits that there exist no relationship of landlord and tenant between the parties initially and the owner of the subject premises was one Kutubudin who let out the premises to Ramgopal Sharma, i.e., father of the petitioner. Thereafter, vide family settlement, the premises came in the share of one Shafi Mohammed, who executed an agreement for sale of the subject premises in favour of the petitioner on 31.12.1999. Counsel submits that when the registered sale deed of the subject premises was executed by the said Shafi

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Mohammed, the petitioner submitted a suit for specific performance of agreement before the Court of Additional District Judge No.1, Sikar, however, the said suit was rejected vide judgment dated 01.05.2019, against which S.B. Civil First Appeal No.467/2019 was submitted before this Court by the petitioner, wherein this Court vide interim order dated 20.11.2019 directed that “In the meanwhile, property shall not be alienated during the pendency of the appeal”.

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Counsel submits that appeal is continuation of the suit and until the appeal is not decided, the application submitted by the respondents was not maintainable. Counsel submits that all these objections were taken by the petitioner in his reply, but the same were not considered and the impugned eviction order has been passed against the petitioner, against which an appeal was preferred before the Appellate Tribunal and during pendency of the said appeal, an application under Order 41 Rule 27 CPC was submitted by the petitioner for taking the sale agreement on the record. The said application was allowed by the Appellate Tribunal vide order dated 05.04.2021 and the document was allowed to be exhibited. Counsel submits that a criminal case was lodged by the respondents against the petitioner with the allegation that the agreement was forged and fabricated, however, the petitioner was acquitted of all the charges by the Court of Additional Chief Judicial Magistrate, Rank-1, Sikar vide order dated 06.10.2023. Therefore, under these circumstances, one more application was submitted by the petitioner under Order 41 Rule 27 CPC, for taking the order of acquittal on record. Counsel submits that the said application was rejected by the Appellate Tribunal along-with

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the impugned judgment whereby the appeal submitted by the petitioner came to be rejected. Counsel submits that one more application under Order 41 Rule 25 CPC was submitted for framing two additional issues, i.e., after execution of registered sale deed dated 31.12.1999, there exist no relationship of landlord and tenant between the parties and the other issues suggested by the petitioner to the Appellate Court was, unless the registered instrument, i.e., registered sale deed is not cancelled by the competent Civil Court, the respondent has no right to file eviction application against the petitioner. Counsel submits that the application submitted by the petitioner was rejected and the additional issues were not be framed and by the Tribunal finally, and the appeal preferred by the petitioner against the impugned judgment passed by the Tribunal was rejected. Hence, under these circumstances, interference of this Court is warranted.

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Submiss ions by the respondents:-

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Per contra , learned counsel for the respondents opposes the arguments raised by counsel for the petitioner and submits that the subject premises was let out to the father of the petitioner, who further sub-let the subject premises to the petitioner and thereafter, the rent was not paid, hence on the ground of default, subletting and personal bona fide necessity of the respondents, an application under Sections 6 and 9 of the Act of 2001 was submitted by the respondents for eviction of the petitioner from the subject premises.

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Counsel submits that in fact, no agreement was executed by Shafi Mohammed in favour of the petitioner. The said agreement was said to be false and fabricated. Counsel submits that if at all

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any suit for specific performance is filed for registration of sale deed in favour of the petitioner, unless the said suit is decreed in favour of the petitioner, the status of the petitioner would remain as a tenant in the subject premises. Counsel submits that mere pendency of the appeal against the judgment of rejection of the suit for specific performance of agreement, is not enough, unless the appeal is decided in favour of the petitioner.

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In support of his contention, learned counsel for the respondents has placed reliance upon the judgment passed by the Hon’ble Apex Court in the case of Mohd. Raza & Anr. Vs. Geeta @ Geeta Devi reported in 2021 AIR (Supreme Court) 4826 .

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Counsel further submits that the application submitted by the petitioner under Order 41 Rule 25 CPC was rightly rejected as the suggested issues were already framed by the Tribunal, i.e., Issue Nos.5, 6 & 7 and all these issues have been decided against the petitioner, hence, there was no need to frame additional issues which are identical to the above issues. Counsel submits that a concurrent finding of fact has been recorded by the Tribunal as well as the Appellate Tribunal by which directions have been issued to the petitioner to vacate the subject premises. Hence, under these circumstances, interference of this Court is not warranted and the instant writ petition is liable to be rejected.

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Analysis, Discussions & Findings:-

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Heard and considered the submissions made at the Bar and perused the material available on record.

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The star argument raised by counsel for the petitioner is that the subject premises was purchased by the petitioner from the owner, i.e., Shafi Mohammed way back in the year 1999, who

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executed an agreement for sale dated 31.12.1999 in his favour. It is the case of the petitioner that when the registered sale deed of the subject premises was not executed by the owner, a suit for specific performance was submitted. However, the same was rejected by the Court of Additional District Judge vide judgment dated 01.05.2019 against which a first appeal has been preferred, wherein an interim order has been passed directing the respondent to not to alienate the subject property till disposal of the appeal.

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Now, the question that remains for consideration before this Court is as to “whether mere filing of a suit or appeal for specific performance give the status of “owner” to the petitioner who is alleged to be the tenant in the subject premises?” 12. This fact is not in dispute that father of the petitioner took the subject premises on rent from one Kutubudin and thereafter, in a family settlement, this premises came in the share of Shafi Mohammed and in the meantime, the original tenant Ramgopal Sharma, father of the petitioner passed away. It is the case of the petitioner that he purchased the subject premises from Shafi Mohammed by an agreement for sale dated 31.12.1999. The case of the petitioner was that a suit for specific performance of agreement was filed, when the sale deed was not executeed by the respondents, but the same was rejected by the trial Court. Hence, an appeal has been submitted before this Court, wherein an interim order has been passed directed the respondents not to alienate the subject property.

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The execution of the agreement to sell in favour of the petitioner has been disputed by the respondents, but the said fact

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is required to be adjudicated by this Court in the first appeal submitted by the petitioner. The petitioner is claiming himself as the owner of the premises in question.

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The Hon’ble Apex Court in the case of Mohd. Raza (supra), under the identical circumstances, has dealt with the issue involved in this writ petition wherein it has held that a person cannot be allowed to be treated as owner of the subject premises only on the basis of filing a suit for specific performance unless and until decree in this regard has been passed in favour of such person. Unless a sale deed is executed in favour of such person, he cannot be treated as an owner of the said property. It has further been held by the Hon’ble Apex Court that till the suit for specific performance is decided, the capacity of the person would be as a tenant in the said premises.

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In the instant case as well, till date, no decree of specific performance has been passed in favour of the petitioner, rather a suit has been rejected by the trial Court and appeal against the said judgment is pending before this Court. 16. At this stage, the petitioner cannot be said to be an owner of subject property only on the basis of an agreement for sale (if any) executed in his favour. His appeal filed against rejection of suit for specific performance is yet to be decided by this Court. Unless and until a decree is passed in his favour or a sale deed is executed, pursuant to the decree, he cannot be treated as an owner of the subject premises. Till the suit/ appeal for specific performance is decided in his favour, the respondents herein would continue to be the owner, and the petitioner would be continued to be tenant.

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This fact is not in dispute that the petitioner submitted an application under Order 41 Rule 25 CPC for framing additional issues and for deciding those additional issues, a prayer was made for granting him opportunity to lead evidence.

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Bare perusal of the application submitted by the petitioner reveals that he suggested the following two issues to be framed before the Appellate Tribunal:-

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(I) “whether after execution of registered sale deed dated 31.12.1999, the petitioner does not remain as tenant in the subject premises, hence, the rent Tribual/ Appellate Rent Tribunal has no jurisdiction to entertain an eviction suit submitted by the seller?”

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(II) “Whether an eviction application can be submitted unless the registered sale deed dated 31.12.1999 is cancelled by the competent Civil Court”.

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As per Order 41 Rule 25 CPC, the Appellate Court may, if necessary, frame issues and refer the same for trial to the Court whose decree is appealed from, and direct such court to take additional evidence, if required. Further, as per Rule 27 Order 41 CPC, the Appellate Court may allow evidence or document to be produced or record the statements of witness, if required. But, the Appellate Court cannot create a new case for the party, frame the issues and decide the issues without following the procedure contemplated under Order 41 of CPC.

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The Rule authorises the Appellate Court to frame an issue, if in its opinion, the trial Court has omitted to frame or try any issue or to determine any question of fact, which is essential to arrived at a decision of the suit upon merits. This leads to the

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consideration whether the trial Court has made same direction in framing or trying the issue.

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It is well-settled principle of law that the Court cannot create any new case, at the appellate stage, for either of the parties, and the appellate court is supposed to decide the issues, involved in the suit, based on the pleadings of the parties.

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This Court has perused the finding recorded by the Tribunal in Para No.50 which says that issue in this regard has already been framed, i.e., Issue Nos.5, 6 & 7 and sufficient opportunity was granted to the petitioner to lead evidence and after considering the evidence of the petitioner and the respondent, the impugned judgment was passed against the petitioner. Perusal of Issue Nos.5, 6 & 7 clearly indicates that these are the identical issues framed by the Tribunal, which were suggested now by the petitioner before the Appellate Tribunal, hence, this Court finds no error in the order passed by the Tribunal whereby the application submitted by the petitioner under Order 41 Rule 25 CPC has been rejected.

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Conclusion & Directions:-

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A concurrent finding of fact has been recorded against the petitioner which needs no interference of this Court and this Court finds no merit and substance in the present writ petition, hence, the same is liable to be and is hereby rejected.

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Before parting with the order, it is made clear that in case, the appeal is decided in favour of the petitioner and if any registered sale deed is executed, in favour of the petitioner, on the basis of the decree at a subsequent stage, he would be at liberty to move an appropriate application for restoration of possession

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and the same would be decided by the competent Court, strictly in accordance with law.

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Stay application and all pending application(s), if any, also stand dismissed.

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(ANOOP KUMAR DHAND),J

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Aayush Sharma /34

Babu Lal Sharma S/O Late Shri Ramgopal Sharma v. Mohammed Arif S/O Late Shafi Mohammed

Case brief

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Babu Lal Sharma S/O Late Shri Ramgopal Sharma v. Mohammed Arif S/O Late Shafi Mohammed

Case brief

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