Kailash Chand & Anr. vs Adesh Kumar Barua

* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on: 19 May, 2026
rd
Pronounced on: 3 June, 2026
+ RFA 246/2022, CM APPL. 25908/2022 & 16255/2026
1. KAILASH CHAND
S/o Shri Tejpal Singh
J-64/G-1 (Ground Floor)
Right Hand Side, Gali No. 4,
Laxmi Nagar, Delhi.

2. TEJPAL SINGH
J-64/G-1 (Ground Floor)
Right Hand Side, Gali No. 4,
Laxmi Nagar, Delhi. .....Appellants
Through: Mr. Kaushal Kishore Lal Gautam,
Ms.Vaishali Nariyala, Mr. Rajbeer
Singh, Mr. Sumit and Ms. Siddhi
Shaiwal, Advocates.

versus

SHRI ADESH KUMAR BARUA
S/o Late Sh. K.L. Barua
R/o House No. 27-28, Band Lines,
Raika Bagh, Jodhpur, Rajasthan. .....Respondent
Through: Mr. Amit Nahata, Adv.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. Regular First Appeal under Section 96 read with Section 151 of the
Code of Civil Procedure, 1908 ( hereinafter referred to as ‘CPC’ ), has been
filed on behalf of the Appellants, against Judgment dated 07.05.2022,
RFA 246/2022 Page 1 of 12

Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:03.06.2026
16:54:59

whereby the Suit of the Plaintiff/Respondent for decree of Possession
against the Defendants/Appellants, was decreed under Order XII Rule 6
CPC.
2. The Plaintiff/Respondent had filed Civil Suit No.125/2018 for
Possession/Ejectment, Recovery of Rent, Mesne Profit and Damages.
3. The facts, in brief, are that Plaintiff stated himself to be the
owner/landlord of the Property bearing No. J-64/G-1, (Ground Floor), Right
Hand Side, Gali No. 4, Laxmi Nagar, Delhi-110092 ( hereinafter referred to
as ‘the Suit Property’ ), consisting of three bedrooms, one drawing-cum-
dining room, kitchen, toilet/bathroom vide registered partition Deed dated
01.01.2010. The Defendant, Mr. Kailash Chand was inducted as a tenant in
the Suit Property vide registered Lease Deed dated 15.04.2010 for a period
of 11 months w.e.f. 11.04.2010, at a monthly rent of Rs.12,000/- per month.
The Lease Deed was executed between the Defendant and the Attorney of
the Plaintiff.
4. The Defendant was claimed to be a chronic defaulter in payment of
rent and failed to pay rent since 10.04.2011, despite repeated requests. The
Plaintiff thus, issued a Legal Notice since the Defendant neither vacated the
premises on expiry of the Lease Deed nor paid the rent w.e.f. 01.04.2011.
5. Thereafter, a Suit for Possession, Arrears of Rent and Damages, was
filed by the Plaintiff .
6. The Defendant/Appellant, Mr. Kailash Chand in his Written
Statement, took the preliminary objection that the Plaintiff had entered into
an Agreement to Sell dated 03.08.2011 with Mr. Tejpal Singh, father of the
Defendant and thereafter, had received rent regularly from Mr. Tejpal Singh
RFA 246/2022 Page 2 of 12

Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:03.06.2026
16:54:59

as agreed under the Agreement, which is evident from the Legal Notices
issued by the Plaintiff to the defendant No.2 Tejpal, father of the Defendant
no.1, Kailash Chand, claiming balance payment under the Agreement to Sell
dated 03.08.2011 wherein the Plaintiff has not made a whisper about the
balance rent. The Suit has been filed only to pressurise the Defendant and
his mother, to extort more money.
7. The Suit was bad for non-joinder of the proper parties . The cause of
action arose on 10.04.2011, while the Suit had been filed in the year 2018
and was liable to be dismissed. No cause of action was disclosed in the
Plaint as the Plaintiff had already entered into an Agreement to Sell with Mr.
Tejpal Singh, father of the Defendant.
8. On merits, the averments made in the Plaint, were denied. It was
admitted that the Defendant, Kailash Chand was the tenant of the Plaintiff
till 03.08.2011 when the Plaintiff entered into an Agreement to Sell with
Tejpal Singh, father of the Defendant. The sale consideration was agreed as
Rs.35,00,000/-, though the Plaintiff failed to execute the Sale Deed in favour
of Mr. Tejpal Singh.
9. Due to some financial crunch, Mr. Tejpal Singh failed to make the
payment in time and the execution of the Sale Deed was extended by the
Plaintiff from time to time, under the threat of forfeiture of earnest money.
The Plaintiff against the total sale consideration of Rs.35,00,000/-, received
Rs.40,00,000/- from Mr. Tejpal Singh though, on one pretext or the other, he
kept avoiding the execution of the Sale Deed.
10. It was further submitted that the Defendant, Kailash Chand had
handed over the possession of the Property to the Plaintiff on 03.08.2011 at
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DigitallySigned By:RITA
SHARMA
Signing Date:03.06.2026
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the time of execution of the Agreement to Sell and he ceased to be a tenant,
thereafter. There is not a single document to show that the Defendant
Kailash Chand continued to be a tenant of the Plaintiff, after execution of
the Agreement to Sell. It was denied that the Defendant under liability to
pay the rent since 01.04.2011 till 31.01.2018 @Rs.12,000/- per month. It is
claimed that there was no liability to pay the rent after the possession was
handed over by the Defendant to the Plaintiff. It was thus, submitted that the
Suit was liable to be dismissed.
11. On an Application filed by Mr. Tejpal Singh, he was impleaded as a
Defendant No. 2 on 05.02.2019 in the Suit.
12. A Joint Written Statement dated 20.05.2019 , was filed by both the
Defendants taking the same defence as was taken by Mr. Kailash Chand, in
his Written Statement.
13. Tejpal Singh, defendant No.2 also filed a Counter-Claim in the
Civil Suit, seeking a prayer for cancellation of the Cancellation Notice dated
19.03.2018 and for directing the Plaintiff to perform his part of the
obligation under the Agreement to Sell; to refund Rs.29.5 Lakhs along with
the interest @18% p.a. and to restrain the Plaintiff from creating third party
rights in the Suit Property.
14. Mr. Tejpal Singh in his Counter-Claim, asserted that under the
Agreement to Sell dated 03.08.2011 executed by the Plaintiff in his favour,
he had paid Rs.5,00,000/- at the time of signing of the Agreement to Sell. As
per the terms of the Agreement, the balance amount was payable on or
before 31.01.2012 on which, the Plaintiff was to execute the Sale Deed in
his favour. Mr. Tejpal Singh claimed that he made payments on various
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Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:03.06.2026
16:54:59

dates and paid a total sum of Rs.40,00,000/-, though only payment of
Rs.29.50 Lakhs was admitted by the Plaintiff. It is because of the financial
crunch that he found it difficult to make the payment on time, in terms of the
Agreement to Sell and the Sale Deed could not be executed.
15. Thereafter, Adesh Kumar Barua, the landlord admitted in the Legal
Notice dated 13.05.2014 about having received Rs.28,00,000/- but
threatened with the forfeiture of earnest money of Rs.5,00,000/-. In this
Legal Notice dated 13.05.2014, there was no whisper about the alleged rent,
as was claimed in the Civil Suit.
16. Mr. Tejpal Singh further claimed that after receipt of Notice, further
payment of Rs.1.5 Lakhs had been made to the Plaintiff, which was also
admitted by him. Mr. Tejpal Singh had thus, paid Rs.29.5 Lakhs as admitted
by the Plaintiff, Adesh Kumar Barua. However, the Plaintiff sent a Legal
Notice dated 19.03.2018 arbitrarily cancelling the Agreement to Sell dated
03.08.2011 and further, threatened to forfeit the earnest money.
17. Several meetings took place between the parties and it was agreed
that Mr. Tejpal Singh would pay the balance amount after which, the Sale
Deed shall be executed in his favour. However, Adesh Kumar Barua with a
mala fide intention instituted the Civil Suit No. 125/2018 against Kailash
Chand, son of Mr. Tejpal Singh, claiming the possession of the Suit
Property, on the allegation of he being inducted as a tenant.
18. It was, therefore, submitted in the Counter-Claim that the
Cancellation Notice dated 19.03.2018 of the Agreement to Sell, be cancelled
and the sum of Rs.29.5 Lakhs along with the interest, be refunded to Mr.
Tejpal Singh.
RFA 246/2022 Page 5 of 12

Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:03.06.2026
16:54:59

19. An Application under OXII Rule VI CPC, was filed on behalf of the
Plaintiff. The learned District Judge, in view of the admissions made in the
Written Statement, decreed the Suit of the Plaintiff, Mr. Adesh Kumar
Barua, under Order 12 Rule 6 CPC.
20. Aggrieved by the said Judgment, First Regular Appeal has been
preferred by the Appellants/Defendants.
21. The grounds of challenge are that it is a specific case that the
Appellant No. 2, Mr. Tejpal Singh is in possession of the Suit Property after
the execution of the Agreement to Sell dated 03.08.2011, whereby Mr.
Adesh Kumar Barua, plaintiff had agreed to sell him the Suit Property for a
sale consideration of Rs.35,00,000/-. The Appellant No. 2, Mr. Tejpal Singh
on account of financial crunch, was unable to make the entire payment for
the execution of the Sale Deed in time. He claimed that he has paid
Rs.40,00,000/- as against the sale consideration of Rs.35,00,000/- though,
the Plaintiff had admitted only payment of Rs.29.5 Lakhs.
22. It is claimed that after the execution of the Agreement to Sell dated
03.08.2011, the Appellant No. 1, Mr. Kailash Chand had handed over the
possession to the Plaintiff and the Defendants, therefore, the appellants had
no liability to pay the rent as claimed by the Plaintiff, Mr. Adesh Kumar
Barua.
23. It is further asserted that a Memorandum of Understanding dated
15.02.2016 had been executed between Mr. Tejpal Singh and the Plaintiff, in
regard to extension of time for payment of balance amount of Rs.1,60,000/-
including penalty and interest, after adjusting the payments made by Mr.
Tejpal Singh.
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Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:03.06.2026
16:54:59

24. It was, therefore, submitted that the impugned Judgment is liable to be
set-aside.
Submissions heard and the record perused.
25. It is an admitted case that Plaintiff, Mr. Adesh Kumar Barua is the
owner of Property in question. It is also not in dispute that initially Plaintiff,
Mr. Adesh Kumar Barua entered into a registered Lease Deed dated
15.04.2010 with Mr. Kailash Chand, defendant No.1, in respect of the Suit
Premises, for a period of 11 months w.e.f. 11.04.2010, on the rent of
Rs.12,000/- per month. In terms of the said Lease Deed, Mr. Kailash Chand
was required to hand over possession of the property to the Plaintiff, on
10.03.2011.
26. It is further not in dispute that by mutual settlement, Lease Deed dated
15.04.2010 was extended vide second Lease Deed dated 03.08.2011, w.e.f.
11.03.2011 till 30.01.2012.
27. In this context, it is pertinent to mention that admittedly, during the
subsistence of tenancy, Plaintiff Mr. Adesh Kumar Barua entered into
Agreement to Sell dated 03.08.2011 with Mr. Tejpal Singh / Appellant No.2
(Father of Mr. Kailash Chand / Appellant No.1), wherein Mr. Tejpal Singh
agreed to purchase the Suit Property for sale consideration of Rs.35,00,000/-
and the Sale Deed was agreed to be executed by end of January, 2012.
Under this Agreement to Sell, Rs.5,00,000/- were paid by Mr. Tejpal Singh /
Appellant No.2 to the Plaintiff / Respondent Mr. Adesh Kumar Barua, while
balance amount of Rs.30,00,000/- were to be paid in three equal instalments
of Rs.10,00,000/- each, payable on 15.09.2011, 30.11.2011 and 15.01.2012.
RFA 246/2022 Page 7 of 12

Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:03.06.2026
16:54:59

28. Significantly, operative part and Paragraph No.7 of Agreement to
Sell, read as under:
“ That as the first party for his legal needs and requirement
has agreed to sell the above mentioned property/flat for a
sum of Rs.35,00,000/- (Rupees Thirty Five Lac Only) to the
second party who is already residing as a Tenant in the
aforesaid flat since last eleven months as per the Rent
Agreement. Both parties i.e. First party and second party
have agreed to sale/purchase of said property on the
following terms and conditions of this agreement.
xxx xxx xxx
7. That as the Second Party has already been staying as
tenant in the above said flat and intends to continue his/her
family members stay in the same flat therefore, Rent of flat,
bills of Water and Electricity shall be paid by the Tenant/
Second party as usual as per the Rent Agreement between
Land Lord and Tenant dated 03 Aug 2011 till the time of
execution of proper transfer/registration of the aforesaid
property. However, the up to date House Tax shall be paid
or borne by the First party and thereafter, the same shall be
paid by the second Party .”
29. From the comprehensive reading of Lease Deed dated 15.04.2010
along with this Agreement to Sell dated 03.08.2011, it emerges that though
first tenancy was created in the name of defendant No.1, Mr. Kailash Chand,
but subsequently, Agreement to sell dated 03.08.2011was executed with
defendant No.2, wherein it was specifically agreed that Mr. Tejpal Singh
shall continue to be the tenant and pay the monthly rent till such time
Agreement to Sell materialises into the Sale documents.
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Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:03.06.2026
16:54:59

30. It is therefore, evident from this Agreement to Sell dated 03.08.2011
that on this date Mr. Tejpal Singh had been recognized as a tenant with right
to continue to reside in the Suit Premises along with his family members.
31. The relationship of landlord and tenant between Mr. Tejpal Singh /
Appellant No.2 to the Plaintiff / Respondent Mr. Adesh Kumar Barua, is
thus fully established and in fact, is not under challenge by either party .
Though, initially the tenancy was created in favour of Mr. Kailash Chand /
Appellant No.1 (Son of Mr. Tejpal Singh / Appellant No.2), but
subsequently, it got transferred to Mr. Tejpal Singh. Therefore, relationship
of landlord-tenant is admitted and rate of rent was Rs.12,000/- per month.
32. It is further not disputed that Notice of forfeiture / termination dated
19.03.2018, was duly served upon the two Appellants .

33. It has also been asserted by the Respondent that Appellants are in
arrears of rent from 10.04.2011 to 31.01.2018, to which, there is no denial.
Though, Respondent has admitted having received Rs.29,50,000/- under
Agreement to Sell dated 03.08.2011, but that is an aspect for consideration
in the Suit for Specific Performance and not in the Suit for Possession, on
the basis of relationship of landlord-tenant.
34. The complexity in the case of arises from admitted Agreement to Sell
dated 03.08.2011, executed in favour of Mr. Tejpal Singh / Appellant No.2.
The question, which arises, is whether the Appellants can resist decree
of Possession, on the basis of Agreement to Sell.
35. This aspect was considered in the case of Jiwan Das vs. Narain Das ,
AIR 1981 Delhi 291, wherein after making reference to Govinda Chandra
vs. Provabati Ghose , AIR 1956 CAL 147 and S. Ramalinga Pillai vs. G.R.
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SHARMA
Signing Date:03.06.2026
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Jagadammal Alias Jagadamba Ammal , AIR 1957 AP 960, it was held that

Section 54 of Transfer of Property Act provides that a contract for sale does
not, of itself, create any interest in or charge on such property. Such contract
is merely a document creating a right to obtain another document, in the
form of registered sale deed, in accordance with law. In other words, a
contract for sale is a right created in personam and not in estate; no privity in
estate can be deduced therefrom, which can bind estate, as is the position in
cases of mortgage, charge or lease. Till a Decree for Specific Performance is
obtained, the vendor/seller is entitled to full enjoyment of the Property.
Even if Decree for Specific Performance of Agreement to Sell is obtained,
but no Sale Deed is executed, it cannot be said that the interest in the
Property, has passed to the purchaser.

36. In the present case, as has been rightly noted by learned District
Judge, the alleged Agreement to Sell, under which the Appellants are
claiming their right and title, was initially executed on 03.08.2011, but it
could not be honoured. Eventually, parties arrived at an MoU dated
15.02.2016, wherein the time payment of balance amount of Rs.16,00,000/-,
which included penalties and interest, was granted till 30.05.2017. However,
Agreement to Sell, till date, has not fructified into Sale Deed. In fact,
Plaintiff / Respondent has served Notice of Forfeiture / Termination to the
Appellants on 19.03.2018, which was duly received by them.
37. As has been observed in the case of Jiwan Das ( supra ), Appellant
No.2 Mr. Tejpal Singh may have acquired a right to get the Sale Deed
executed, but till such time, he continues to be a tenant; more so, as has
been specifically provided in the Agreement to Sell dated 03.08.2011. His
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DigitallySigned By:RITA
SHARMA
Signing Date:03.06.2026
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status as a tenant would cease only after the execution of Sale Deed.
Therefore, merely because of execution of Agreement to Sell, Appellants
cannot seek protection of their possession.
38. In this context, it is also pertinent to mention that after introduction of
Section 17(1)(A) of Registration Act, 1908, inserted on 24.09.2001, by
Amendment Act, 2001, the documents containing contracts to transfer any
immovable property for consideration, for the purpose of Section 53-A of
the Transfer of Property Act, 1882, it shall be registered, if they have been
executed on or after the commencement of the Registration and Other
Related Laws (Amendment) Act, 2001. If such documents are not registered
on or after such commencement then, they shall have no effect for the
purposes of the said Section 53-A.

39. Therefore, it is evident that Appellants cannot claim even a right of
protection of their possession under Section 53A of Transfer of Property
Act, 1882, under Agreement to Sell dated 03.08.2011, being an un-
registered document.
40. In the case of Pawandeep Singh & Anr vs. Gurdeep Singh Virdi , 2019
(7) AD (Del) 506, it was held that un-registered Agreement to Sell cannot be
used as a shield to protect the claimant’s possession under Section 53A of
Transfer of Property Act, 1882.
41. Likewise, in the case of Parveen Saini vs. Reetu Kapur & Anr. , 2018
(168) DRJ 121, it was reiterated that once Agreement to Sell is not
registered, the prospective buyer, who has no right of seeking protection of
his possession, especially when he was inducted in the property as a tenant,
by virtue of a lease agreement.
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SHARMA
Signing Date:03.06.2026
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42. Therefore, learned District Judge rightly referred to Section 17(1)(A)
of Registration Act, 1908, to observe that the protection under Section 53A
of Transfer of Property Act, 1882, was not available to the Appellants. Till
such time the Agreement to Sell is decreed and a Sale Deed is executed in
their favour, their status as tenants, which was specifically provided in the
Agreement to Sell dated 03.08.2011, cannot be overlooked and ignored.
They continued to be in relationship as landlord-tenant between the Plaintiff
/ Respondent and Appellant No.2 Mr. Tejpal Singh. Admittedly, Appellant
No.1 Mr. Kailash Chand (son of Appellant No.2 Mr. Tejpal Singh) had been
residing in the Suit Property, as family member of Mr. Tejpal Singh.
43. The three ingredients for Decree of Possession, under Order XII Rule
6 of CPC, namely Relationship of landlord-tenant; termination of tenancy
and rent being more than Rs.3,500/-; are fully satisfied in this case.
44. Therefore, learned District Judge has rightly Decreed the Suit of the
Plaintiff / Resopndent against the Defendants / Appellants for Possession
under Order XII Rule 6 of CPC.
45. There is no infirmity in the impugned Judgment dated 07.05.2022.
46. There is no merit in the Appeal, which is hereby, dismissed along
with pending Applications.

(NEENA BANSAL KRISHNA)
JUDGE
JUNE 3, 2026/RS/ R
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Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:03.06.2026
16:54:59