RAJESH KUMAR CHAURASIA AND 2 OTHERSversusSURESH KAPOOR AND 3 OTHERS

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                    S.C.C. REVISION No. - 85 of 2026

Rajesh Kumar Chaurasia and 2 others
                                                        …..Revisionist(s)

                                    Versus

Suresh Kapoor and 3 others
                                                     …..Opposite Party(s)


Counsel for Revisionist(s)           : Padmaker Pandey, Prakash Chandra
                                       Dwivedi, Sr. Advocate
Counsel for Opposite Party(s)        : Dipti Tiwari, Kunal Shah, Manas
                                       Bhargava, Shivansh Mishra


                                                                     AFR
Court No. - 35

            HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J.


1.     Heard Sri Atul Dayal, learned Senior Advocate assisted by Sri
Padmaker Pandey, learned counsel appearing for the revisionists and Sri
Kunal Shah, learned counsel for the respondents.
2.    This revision under Section 25 of the Provincial Small Cause
Courts Act, 1887 (hereinafter referred to as the “Act”) has been preferred
by the defendants-revisionists assailing the judgment and decree dated
14.05.2026 passed by the learned Small Causes Court/Additional
District & Sessions Judge, Court No. 18, Kanpur Nagar in S.C.C. Suit
No. 109 of 2019, whereby the suit instituted by the plaintiff-respondent
for eviction and consequential reliefs has been decreed. During the
pendency of the suit, the original plaintiff was substituted by his legal
heirs. The revisionists seek setting aside of the impugned judgment and
decree and dismissal of the suit.
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3.    The facts giving rise to the present revision, as borne out from the
record, are that the plaintiff instituted S.C.C. Suit No. 109 of 2019
against the defendants alleging default in payment of rent for the period
from 01.01.2003 to 31.08.2019. It was further pleaded that the tenancy
had been determined by notice dated 01.09.2019. The plaintiff asserted
that the monthly rent of the disputed premises was Rs.3,000/- and,
consequently, the tenancy was outside the ambit of the U.P. Act No. 13
of 1972.

4.    The defendants contested the suit by filing their written statement
on 26.09.2022. The principal defence was that the relationship of
landlord and tenant had ceased to subsist after execution of an agreement
to sell dated 24.12.2002. According to the defendants, on the said date an
agreement to sell as well as a separate letter recording delivery of
possession had been executed, pursuant to which possession of the
disputed premises was delivered to them in part performance of the
agreement. On that basis, the defendants disputed the very
maintainability of the suit as one founded upon a subsisting tenancy.

5.    The plaintiff filed his replication on 07.01.2023. The parties
thereafter led evidence in support of their respective cases. The plaintiff's
affidavit of evidence and his cross-examination were placed on record on
16.01.2023. The defendants relied, inter alia, upon the agreement to sell
dated 24.12.2002 and the alleged letter of possession of the same date. In
support of their defence, evidence of the defence witnesses was also led,
including the affidavits and cross-examinations of D.W.1 and D.W.3
dated 28.05.2025 and 07.07.2025, respectively.

6.    The defendants also placed on record copies of rent-deposit
tenders relating to the period commencing from the year 2016 onwards.
The aforesaid documentary and oral evidence was considered by the
learned court below while adjudicating the rival claims of the parties.

7.    Upon consideration of the pleadings and the evidence on record,
the learned Small Causes Court/Additional District & Sessions Judge,
Court No. 18, Kanpur Nagar, by judgment dated 14.05.2026, decreed
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S.C.C. Suit No. 109 of 2019, Suresh Kapoor Vs. Rajesh Chaurasia and
others. Aggrieved thereby, the defendants have preferred the present
revision under Section 25 of the Provincial Small Cause Courts Act,
1887.

Submission on behalf of the Revisionist

8.      Learned counsel for the revisionists has assailed the judgment and
decree passed by the court below principally on the ground that the
effect of the agreement to sell dated 24.12.2002 and the accompanying
letter of possession has not been correctly appreciated. It is submitted
that the defendants were admittedly in possession of the disputed shop as
tenants even prior to 24.12.2002 and that, according to their case, upon
execution of the agreement to sell and delivery of possession in
pursuance thereof, the character of their possession underwent a change
and the relationship of landlord and tenant between the parties came to
an end. It is, therefore, contended that the suit for eviction, founded upon
the existence of a subsisting tenancy, was not maintainable.
9.      Learned counsel submits that the court below has further erred in
declining to extend the protection available under Section 53-A of the
Transfer of Property Act, 1882. According to the revisionists, the court
below proceeded on an erroneous appreciation of the evidence while
recording a finding that possession had not been delivered in pursuance
of the agreement to sell and also failed to properly appreciate the letter
of possession dated 24.12.2002. It is argued that the question was
required to be examined with reference to the agreement to sell, the said
letter, the evidence led by the defendants and the payment of the entire
sale consideration, taken cumulatively, rather than by considering the
individual pieces of evidence in isolation.
10.     Learned counsel has emphasized that the fact that the defendants
were in possession of the disputed shop as tenants even prior to the
execution of the agreement to sell dated 24.12.2002 was not in dispute. It
is submitted that the plaintiff himself admitted such prior possession and
the court below also noticed the same. According to the revisionists,
once such prior possession stood admitted, the subsequent continuance
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of possession could not have been treated as conclusive of the
subsistence of the tenancy. The court was required to examine whether,
in the facts and circumstances of the case, the character of such
possession had thereafter become referable to the agreement to sell and
the alleged delivery of possession in pursuance thereof.
11.      Learned counsel has further submitted that D.W.2 specifically
proved the letter of possession dated 24.12.2002 and also supported the
defendants' case regarding payment of the entire sale consideration. It is
contended that the aforesaid evidence, read along with the agreement to
sell, furnished sufficient material to establish that the defendants'
possession after 24.12.2002 was in part performance of the agreement
and was no longer referable merely to the earlier tenancy. It is, therefore,
urged that the court below erred in holding that the requirements for
invoking Section 53-A of the Transfer of Property Act were not satisfied.
12.      In support of the aforesaid submission, learned counsel for the
revisionists has placed reliance upon the judgment of this Court in Habib
Khan Vs. XIIth Additional District Judge and others1 contending that the
principles governing protection under Section 53-A of the Transfer of
Property Act have to be applied upon an assessment of the agreement,
the surrounding circumstances and the evidence relating to possession
and performance. On the strength of the said decision, it is submitted
that the court below adopted an unduly restrictive approach in
appreciating the agreement to sell, the letter of possession and the
evidence relating to payment of consideration and possession.
13.      Learned counsel has also assailed the validity of the notice dated
01.09.2019 by which the tenancy was sought to be terminated. It is
submitted that the notice demanded rent for the period from 01.01.2003
to 31.08.2019 and that a substantial part of the amount so demanded was
allegedly barred by limitation. According to the revisionists, inclusion of
such time-barred rent rendered the demand illegal and consequently
impaired the validity of the notice itself. It is, therefore, contended that



1     2014 (2) ARC 692
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the said notice could not constitute a valid foundation for the suit for
eviction.
14.   It is further submitted that the cause of action pleaded by the
plaintiff was founded upon the aforesaid notice dated 01.09.2019.
According to learned counsel, once the notice itself is held to be illegal
and ineffective, the cause of action founded upon such notice would also
fail and the suit for eviction would consequently be liable to be
dismissed.
15.   Learned counsel has lastly submitted that the defendants had
deposited the requisite amount under protest even prior to filing their
written statement. It is contended that such deposit constituted a valid
tender of the amount claimed by the plaintiff and that the court below
failed to appreciate its legal effect while examining the allegation of
default. According to learned counsel, the deposit, coupled with the other
material available on record, was sufficient to dislodge the finding of
default recorded against the defendants.
16.   On the aforesaid premises, learned counsel for the revisionists
submits that the judgment dated 14.05.2026 suffers from an erroneous
appreciation of the pleadings and evidence and from a failure to
correctly appreciate the legal consequences flowing from the agreement
to sell dated 24.12.2002 and the alleged delivery of possession in
pursuance thereof. It is accordingly urged that the impugned judgment
and decree be set aside and S.C.C. Suit No. 109 of 2019 be dismissed.
Submission on behalf of the Respondents
17.   Learned counsel for the respondents has supported the judgment
and decree passed by the court below and submitted that the revisionists
failed to establish that possession of the disputed premises was delivered
to them pursuant to the registered agreement to sell dated 24.12.2002.
On the contrary, it is submitted that the agreement itself expressly
records that possession had not been delivered and that the same was to
be handed over at the time of execution of the sale deed. According to
learned counsel, the express terms of the agreement, therefore, the
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subsequent assertion that the revisionists were placed in possession in
part performance thereof on the very same date.
18.     It is submitted that the contrary plea of the revisionists rests
principally upon an alleged letter of possession dated 24.12.2002. The
execution of the said document was disputed; the document is
unregistered; and none of the attesting witnesses was examined to
establish its execution or the alleged delivery of possession. Learned
counsel submits that, in the absence of satisfactory proof of the
document and the transaction alleged therein, mere production of the
letter could not establish that the character of the revisionists' possession
had changed. It is further contended that the recital in the alleged
possession letter is directly at variance with the recital contained in the
registered agreement and, therefore, the former cannot be relied upon so
as to displace or alter the terms of the latter in the manner suggested by
the revisionists.
19.     Learned counsel has further submitted that the revisionists were
admittedly occupying the disputed premises as tenants even prior to the
execution of the agreement to sell. Mere continuation of such
possession, it is urged, cannot constitute part performance of an
agreement to sell under Section 53-A of the Transfer of Property Act
unless the circumstances establish that the possession thereafter was held
in a different legal capacity and was referable to the agreement. Reliance
has been placed upon Nazim Shaikh Hasan vs. Nasir Mushtaq Shaikh
and others2, H.K. Sharma vs. Ram Lal3, Vayyaepi Srinivasarao vs.
Gaineedi Jagajyothi4 and Kashi Nath Mehrotra vs. Roop Narayan
Chaudhari5. It is contended that possession originally obtained as a
tenant does not, merely by reason of the subsequent execution of an
agreement to sell, become possession in part performance, particularly
where the agreement contains no stipulation indicating that the existing
possession was thereafter to be treated as possession of the prospective
purchaser.

2   SLP(Civil) No. 17699 of 2026
3   (2019) 4 SCC 153
4   2026 SCC OnLine SC 84
5   2007 (6) ALJ 372
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                                                       SCCR No. - 85 of 2026

20.    Learned counsel has also placed reliance upon Chandrakant
Shankarao Machale vs. Parubai Bhairu Mohite6, and S. Saktivel vs. M.
Venugopal Pillai7, in support of the submission that the express terms of
the registered agreement cannot be displaced by relying upon an alleged
subsequent or contemporaneous unregistered arrangement in the absence
of legally admissible and cogent proof. On this basis, it is argued that the
alleged possession letter cannot be permitted to override the recital in the
registered agreement that possession was to be delivered at the time of
execution of the sale deed.
21.    Learned counsel accordingly submits that the revisionists have
failed to establish the foundational facts necessary for claiming
protection under Section 53-A of the Transfer of Property Act. Their
possession of the disputed premises admittedly commenced as tenants
and, according to the respondents, continued in that capacity. No reliable
evidence, it is contended, establishes that such possession was
surrendered or otherwise ceased to be referable to the tenancy and
thereafter became possession pursuant to the agreement to sell. The
execution of the agreement and the alleged payment of consideration, by
themselves, are stated to be insufficient to bring about such a change in
the legal character of possession. It is, therefore, urged that the
relationship of landlord and tenant did not come to an end on
24.12.2002.
22.    With regard to the notice dated 01.09.2019, learned counsel
submits that its validity was not affected merely because the demand
included rent relating to an earlier period which the revisionists now
claim to be barred by limitation. Reliance has been placed upon Khadi
Gram Udyog Trust vs. Shri Ram Chandraji Virajman Mandir8, and L.M.
Joshi vs. K.M. Parikh9, in support of the submission that a demand for
arrears, including an amount which may not be recoverable by reason of
limitation, does not by itself invalidate a notice determining the tenancy,



6   (2008) 6 SCC 745
7   (2000) 7 SCC 104
8    AIR 1978 SC 287
9   AIR 1972 Bom 373
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provided the notice otherwise sufficiently communicates the intention to
terminate the tenancy.
23.    Learned counsel has further relied upon Bhagabandas Agarwalla
vs. Bhagwandas Kanu10 and B.R. Trading Company v. Dharam Raj Sahu
and Others11, to contend that a notice determining tenancy is required to
be construed as a whole and according to its substance, with due regard
to the intention conveyed by it, rather than being invalidated on account
of a technical or hyper-technical objection. It is submitted that the notice
dated 01.09.2019 clearly conveyed the respondents' intention to
terminate the tenancy and that the inclusion of a demand for arrears
relating to an earlier period did not detract from the operative part of the
notice or render the determination of tenancy ineffective.
24.    Lastly, learned counsel submits that the findings recorded by the
court below are founded upon a proper appreciation of the pleadings and
evidence and do not suffer from perversity, jurisdictional error or any
material irregularity warranting interference in exercise of revisional
jurisdiction under Section 25 of the Provincial Small Cause Courts Act,
1887. It is accordingly submitted that the revisionists have failed to
demonstrate that the impugned judgment and decree are contrary to law
and that the revision is liable to be dismissed and the judgment and
decree dated 14.05.2026 affirmed.
Issue for Consideration
25.    Having regard to the rival submissions and the material available
on record, the principal controversy which arises for consideration is
whether, and in what circumstances, the possession of a person who was
already occupying an immovable property as a tenant can, upon his
subsequently entering into an agreement to purchase the same property
from the landlord, cease to be referable to the tenancy and become
possession in part performance of the agreement within the meaning of
Section 53-A of the Transfer of Property Act, 1882. The question
assumes significance where the tenant asserts that the agreement to sell
was accompanied by delivery of possession, while the agreement itself

10 (1977) 2 SCC 646
11 (2008) 73 ALR 193
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contains a recital inconsistent with such delivery. The further question is
whether, in such circumstances, the alleged change in the character of
possession can be established on the basis of a separate document or the
surrounding evidence, and what legal consequence such change, if
proved, would have upon the subsistence of the tenancy.
26.   The connected question is whether the execution of an agreement
to sell by itself, or coupled with payment of the sale consideration and
continued possession of the prospective purchaser, is sufficient to bring
an existing tenancy to an end, or whether the termination of such tenancy
must independently be established in accordance with the law governing
surrender or determination of a lease. This question necessarily requires
the Court to keep distinct the contractual rights arising from an
agreement to sell, the statutory protection contemplated by Section 53-A
of the Transfer of Property Act, and the independent question whether
the pre-existing relationship of landlord and tenant has in fact ceased.
27.   A further and distinct issue arises with regard to the validity of a
notice determining tenancy where the notice, besides communicating the
intention to terminate the tenancy, also contains a demand for arrears of
rent extending over a period, a part of which may be beyond the period
of limitation for recovery. The question is whether the inclusion of such
a demand, by itself, renders the notice invalid and consequently defeats
the determination of tenancy, or whether the validity of the notice is to
be examined with reference to the substance of the notice and the
operative intention conveyed by it, independently of the recoverability of
individual components of the monetary demand.
28.   The aforesaid questions fall for determination upon an
examination of the pleadings and evidence on record, the terms of the
agreement to sell and the alleged document recording delivery of
possession, the subsequent conduct of the parties, and the legal
principles governing part performance, surrender or determination of
tenancy, and the validity of a notice determining a lease. The findings
recorded by the court below are required to be tested against these
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principles in exercise of the jurisdiction conferred by Section 25 of the
Provincial Small Cause Courts Act, 1887.
I. Effect of the Agreement to Sell on the Existing Landlord-Tenant
Relationship
29.   The principal controversy between the parties centres around the
legal effect of the agreement to sell dated 24.12.2002. The execution of
the said agreement between the parties is not seriously disputed. The
defendants, however, seek to derive from it a consequence which goes
beyond the creation of a contractual right to obtain execution of a sale
deed. Their case is that the entire sale consideration of Rs.1,10,000/- was
paid, that a separate letter of possession dated 24.12.2002 was executed,
and that possession of the disputed shop was delivered to them in
pursuance thereof. On this premise, it is contended that the defendants
ceased to be tenants and thereafter continued in possession as
prospective purchasers, with the result that a suit for their eviction on the
basis of the alleged subsistence of the tenancy was not maintainable.
30.   The question, therefore, is not merely whether the agreement to
sell was executed or whether the sale consideration was paid. The more
fundamental question is whether the defendants, who admittedly entered
into possession of the disputed shop as tenants prior to the agreement to
sell, have established by legally admissible and reliable evidence that the
character of their possession thereafter underwent a legally recognisable
change and became possession in part performance of the agreement
within the meaning of Section 53-A of the Transfer of Property Act,
1882. Closely allied to this question is the further issue whether the pre-
existing tenancy was thereby surrendered, determined or otherwise
brought to an end.
31.   The distinction is of considerable significance. Where possession
of an immovable property is obtained pursuant to an agreement to sell,
such possession may, subject to fulfilment of the statutory requirements,
furnish the foundation for a plea of part performance. The situation is
materially different where the person asserting such protection was
already in possession under an independent jural relationship, such as
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that of a tenant. In such a case, the mere fact that an agreement to sell is
subsequently executed does not, by itself, alter the legal character of the
possession. Some material must exist from which it can reasonably and
legally be concluded that the basis upon which possession was held has
thereafter changed and that the possession became referable to the
agreement to sell.
32.   This distinction also follows from the scheme of the Transfer of
Property Act. An agreement to sell does not, by itself, create or transfer
any right, title or interest in the property which amounts to ownership. It
creates a contractual right to seek completion of the proposed
transaction. Section 53-A, on the other hand, confers a limited statutory
protection against the transferor where the conditions prescribed therein
are satisfied. Neither of these provisions, by itself, determines the fate of
an existing lease. The question whether a subsisting tenancy has come to
an end has to be independently examined in accordance with the law
governing determination or surrender of the lease.
33.   In the present case, this aspect assumes particular importance
because the defendants' possession admittedly preceded the agreement to
sell dated 24.12.2002. Their physical possession, therefore, cannot itself
furnish the necessary link between the agreement and possession.
Physical possession remained continuous before and after the agreement.
What is required to be established is a change in the juridical basis of
that possession. Unless such change is proved, the continuance of
possession must ordinarily be attributed to the relationship under which
possession was originally obtained.
34.   The learned court below has examined the registered agreement to
sell as well as the alleged possession letter dated 24.12.2002 in this
context. The registered agreement constitutes the principal contractual
document between the parties. The defendants, however, rely upon the
separate possession letter to establish that, notwithstanding the terms of
the registered agreement, possession was delivered to them in part
performance of the proposed sale on 24.12.2002 itself. The evidentiary
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value and legal effect of this document consequently assume
considerable significance.
35.   The alleged possession letter was not proved through any of the
persons stated to have witnessed its execution. Its execution was
disputed and the defendants did not examine the attesting witnesses to
establish that the document was in fact executed in the manner alleged or
that possession was delivered pursuant to it. The mere production or
marking of a disputed document cannot, by itself, establish the truth of
the facts recited therein. Where a document is relied upon as the very
foundation for a change in the legal character of possession, its
execution and the transaction alleged therein must be established by
cogent and legally admissible evidence.
36.   It is necessary, however, to make it clear that the failure to prove
the possession letter does not, by itself, conclude the controversy. The
Court is required to examine the entire body of evidence and determine
whether the defendants have otherwise established that their possession
ceased to be referable to the tenancy and became possession in part
performance of the agreement to sell. The question is, therefore, not one
of treating the possession letter in isolation, but of assessing its
evidentiary significance along with the registered agreement, the
evidence regarding consideration, the conduct of the parties and the
other circumstances appearing on record.
37.   Learned counsel for the revisionists has placed considerable
reliance upon the payment of the entire sale consideration of
Rs.1,10,000/-. Payment of consideration is undoubtedly a circumstance
relevant to the contractual transaction. It cannot, however, by itself
determine the character of possession or bring about transfer of
ownership. An agreement to sell, even when supported by payment of
the entire consideration, does not become a conveyance of the property.
The contractual rights arising from the agreement, the statutory
protection contemplated by Section 53-A and the acquisition of title are
distinct legal consequences and cannot be treated as interchangeable.
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38.   The fact that the defendants have themselves instituted
proceedings seeking specific performance of the agreement to sell is also
relevant in this context. The pendency or institution of such proceedings
does not determine the defendants' title, nor is that question before this
Court in the present revision. It does, however, indicate the nature of the
right which the defendants themselves claim to possess under the
agreement. A contractual right to compel execution of a sale deed
cannot, without more, be equated with ownership of the property or with
the automatic extinction of a pre-existing tenancy.
39.   The decisive question, therefore, remains whether the agreement
to sell, either by its express terms or when read with the subsequent
conduct of the parties, demonstrates that the parties intended to bring the
existing tenancy to an end and that the defendants thereafter retained
possession in a capacity referable to the agreement to sell.
40.   The legal position in this regard has been authoritatively
considered by the Supreme Court in Nazim Shaikh Hasan. Upon
consideration of the earlier decisions, the Supreme Court reiterated that
the mere execution of an agreement to sell between a landlord and tenant
does not ipso facto determine the subsisting tenancy. The tenancy comes
to an end only where the terms of the agreement or the unequivocal
conduct of the parties disclose an express or implied surrender within the
meaning of Section 111(e) or Section 111(f) of the Transfer of Property
Act. The Court further held that the continuous possession of a tenant
after execution of an agreement to sell would not amount to part
performance under Section 53-A unless such possession is shown to be
directly relatable to and flowing from the agreement to sell.
41.   The principle emerging from the aforesaid decision is of direct
relevance here. The existence of two transactions between the same
parties, one creating a tenancy and the other contemplating a future sale,
is not legally inconsistent. Both may coexist unless the latter transaction,
by its terms or by the unequivocal conduct of the parties, demonstrates
that the former has been surrendered or otherwise determined. The mere
execution of the agreement to sell, therefore, cannot be treated as an
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implied surrender merely because the parties thereafter continued to
remain in the same physical relationship with the property.
42.    The same principle was considered by the Supreme Court in H.K.
Sharma. The Court examined the effect of an agreement to sell executed
by a lessor in favour of the lessee during the subsistence of the tenancy
and held that the question whether the jural relationship of landlord and
tenant came to an end has to be determined with reference to Section 111
of the Transfer of Property Act and the intention of the parties. The
relevant inquiry is whether the parties intended, upon execution of the
agreement, to surrender the tenancy or whether they intended that the
tenancy should continue notwithstanding the proposed sale.
43.    The distinction drawn in H.K. Sharma from R. Kanthimathi v.
Beatrice Xavier12, is instructive. In the latter case, the agreement itself
contained a recital which disclosed that possession had been surrendered
to the purchaser, thereby furnishing clear evidence of the intention to
bring the landlord-tenant relationship to an end. The significance of the
decision, therefore, lies not in the mere existence of an agreement to sell
but in the terms of that agreement and the intention thereby manifested.
In the absence of a similar stipulation or other circumstances
establishing express or implied surrender, execution of an agreement to
sell does not automatically determine a subsisting tenancy.
44.    The Supreme Court has also reiterated the same distinction in
Vayyaeti Srinivasarao, where it was held that, when possession is handed
over to the vendee pursuant to an agreement to sell, the protection under
Section 53-A of the Transfer of Property Act would be available, subject
to fulfilment of the other conditions prescribed by the said provision.
Conversely, where possession has not been delivered pursuant to or in
relation to the agreement to sell, the protection under Section 53-A
would not be attracted. The decision thus reinforces the requirement of a
demonstrable nexus between the agreement to sell and the possession
sought to be protected under Section 53-A. Where possession was
already with the claimant in an independent capacity, such as that of a


12 (2000) 9 SCC 339
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tenant, mere continuance of possession after execution of the agreement
cannot, without more, establish the requisite nexus with the agreement.
45.   The principle has likewise been applied by this Court in Smt.
Shakuntala Devi. There too, the person claiming a change in status was
already a tenant and a registered agreement to sell had subsequently been
executed. The Court, while considering the effect of R. Kanthimathi in
the light of the later pronouncement in H.K. Sharma, noticed that the
agreement in R. Kanthimathi contained a specific recital indicative of
surrender of possession, whereas the agreement before it contemplated
delivery of possession at the time of registration of the sale deed. The
Court consequently held that, in the absence of a clause or other
circumstance evidencing surrender or termination of the existing
tenancy, even the execution of a registered agreement to sell did not, by
itself, alter the legal character of the tenant's possession.
46.   The aforesaid authorities, when considered together, establish a
principle which may be stated thus: where a person is already in
possession of immovable property as a tenant and subsequently enters
into an agreement to purchase the property from the landlord, the
agreement to sell does not, by its mere execution, determine the existing
tenancy or convert the tenant's possession into possession in part
performance of the agreement. For such a change to be recognised, there
must be cogent material showing that the possession thereafter became
referable to the agreement to sell and that the pre-existing tenancy was
expressly or impliedly surrendered or otherwise determined in
accordance with law. Payment of consideration and mere continuation of
physical possession, without more, are insufficient.
47.   The decision relied upon by learned counsel for the revisionists in
Habib Khan does not advance the case of the revisionists beyond this
principle. There can be no dispute with the proposition that possession
delivered pursuant to an agreement to sell may, subject to fulfilment of
the statutory conditions, furnish a basis for invoking Section 53-A. The
difficulty in the present case, however, lies at an anterior stage: the
defendants were already in possession as tenants and were required to
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establish that their possession thereafter became possession in part
performance of the agreement rather than continued possession under the
tenancy. The decision, therefore, cannot be understood as dispensing
with proof of the factual ingredients necessary to establish such a
change.
48.    Tested on the aforesaid principles, the registered agreement to sell
dated 24.12.2002 assumes considerable significance. As noticed by the
court below, the agreement contains a recital that possession had not
been delivered and was to be handed over at the time of execution of the
sale deed. Such a recital is plainly inconsistent with the defendants'
assertion that they were delivered possession under the agreement on
24.12.2002 itself. It also assumes significance because the defendants
were already in possession under the tenancy. In these circumstances, the
burden upon the defendants to establish that the character of that
possession was nevertheless changed by a contemporaneous act of
surrender and delivery in part performance was necessarily a substantial
one.
49.    The alleged possession letter is relied upon to overcome this
difficulty. But the difficulty for the revisionists is that the execution of
that document has not been satisfactorily established. The persons
alleged to have witnessed its execution were not examined. Nor has the
evidence otherwise led by the defendants established with the requisite
clarity that possession was actually delivered to them in a capacity
different from that in which they were already occupying the shop. The
document, therefore, cannot be treated as conclusively establishing the
transaction which it is relied upon to prove.
50.    The fact that the alleged possession letter is unregistered is not, by
itself, sufficient to dispose of every question concerning its evidentiary
relevance. The more fundamental difficulty is that its execution and the
transaction alleged therein have not been satisfactorily proved and, even
apart from that deficiency, the recital relied upon by the defendants is
required to be reconciled with the express terms of the registered
agreement. The question is not simply whether an unregistered document
                                    17
                                                      SCCR No. - 85 of 2026

exists, but whether the evidence as a whole establishes a legally
recognisable change in the basis of possession notwithstanding the terms
of the registered agreement.
51.   The subsequent conduct of the parties furnishes an additional and
important circumstance. The defendants have placed on record rent-
deposit tenders relating to the period commencing from the year 2016.
Such conduct cannot be brushed aside while determining whether the
tenancy had in fact come to an end in the year 2002. If the defendants'
possession had ceased to be that of tenants on 24.12.2002 and thereafter
continued exclusively in part performance of the agreement to sell, their
subsequent conduct would ordinarily be expected to reflect that altered
legal position. The rent-deposit material, therefore, constitutes a
circumstance which the court below was entitled to consider while
assessing the continued subsistence of the tenancy.
52.   The reply submitted by the defendants to the notice dated
17.09.2019, as noticed by the court below, is also relevant. The contents
of the reply and the conduct of the defendants are required to be
considered in determining the jural relationship which the parties
themselves recognised after execution of the agreement to sell. While a
party's subsequent conduct cannot, by itself, create or extinguish a legal
relationship contrary to law, it is plainly relevant in determining whether
the alleged surrender or change in the character of possession actually
occurred.
53.   The cumulative effect of the material on record, therefore, does
not establish that the defendants' possession ceased to be referable to the
tenancy on 24.12.2002. The agreement to sell establishes a contractual
arrangement between the parties, but it does not contain material
sufficient to establish an express surrender of the existing tenancy. The
alleged possession letter, which is relied upon to establish a
contemporaneous change in possession, has not been satisfactorily
proved. The subsequent conduct relied upon by the defendants does not
unequivocally demonstrate that the tenancy had been surrendered or
                                     18
                                                       SCCR No. - 85 of 2026

otherwise determined. Payment of the sale consideration, even if
accepted in full, does not by itself supply the missing link.
54.   It is important in this context to maintain the distinction between
absence of title and subsistence of tenancy. The fact that the defendants
did not acquire title under the agreement to sell is one matter; whether
they continued to hold possession as tenants is another. Equally, the mere
existence of a contractual right to seek specific performance does not
render the tenancy extinct. The present suit does not require adjudication
of the ultimate rights of the defendants in their proceedings for specific
performance. What falls for consideration is whether, on the date of
determination of the tenancy and institution of the suit, the defendants
continued to occupy the premises under a subsisting tenancy. On the
evidence considered by the court below, the answer is in the affirmative.
55.   The contention that the agreement to sell dated 24.12.2002 itself
brought the landlord-tenant relationship to an end must, therefore, be
rejected as a proposition of law. An agreement to sell may create
enforceable contractual rights in favour of the prospective purchaser and,
where the statutory requirements are fulfilled, may also support a plea
under Section 53-A. But neither consequence follows merely from the
execution of the agreement where the person asserting such rights was
already in possession as a tenant. In such a case, the party asserting a
change in the legal character of possession must establish the event or
circumstances by which the existing tenancy was expressly or impliedly
surrendered or otherwise determined and possession thereafter became
referable to the agreement to sell. That requirement has not been
satisfied in the present case.
56.   The first issue is, accordingly, answered against the revisionists.
The execution of the agreement to sell dated 24.12.2002, payment of the
alleged entire consideration and the alleged possession letter of the same
date have not been shown, either individually or cumulatively, to have
effected a legally recognisable change in the character of the defendants'
possession so as to attract the protection under Section 53-A of the
Transfer of Property Act or to extinguish the pre-existing relationship of
                                        19
                                                     SCCR No. - 85 of 2026

landlord and tenant. The finding of the court below on this aspect,
therefore, calls for no interference.

57.   Before examining the validity of the notice dated 01.09.2019, it
would be appropriate to consider the principal defence of the revisionists
that, by virtue of the agreement to sell dated 24.12.2002, their status
ceased to be that of tenants and that their possession thereafter was
referable to the proposed sale of the property. The submission, in
substance, is that the agreement to sell brought about a change in the
character of their possession and, consequently, the relationship of
landlord and tenant stood altered.

58.    The aforesaid submission cannot be accepted merely on the basis
of the existence of an agreement to sell. Where the parties have entered
into a registered instrument creating or recording a particular legal
relationship, or stipulating the terms governing their rights in the
property, the legal effect of such instrument cannot ordinarily be altered
or displaced by a subsequent unregistered arrangement. The status of the
parties flowing from a registered instrument must, therefore, be
determined with reference to the legally admissible instrument
governing their relationship and cannot be treated as having been altered
merely on the basis of an unregistered agreement or arrangement.

59.    The aforesaid principle finds support from the judgment of the
Supreme Court in Chandrakant Shankarao Machale, wherein the legal
effect of a registered instrument and the limitations upon altering its
terms were considered. The decision recognises that the rights and
obligations flowing from a registered instrument cannot be displaced by
a subsequent arrangement unless such subsequent arrangement possesses
the legal efficacy required by law. The principle assumes significance in
the present case since the revisionists seek to contend that the legal
status of the parties, as governed by the subsisting tenancy, was
subsequently altered merely by reason of the agreement to sell dated
24.12.2002.
                                    20
                                                       SCCR No. - 85 of 2026

60.    The legal effect of the alleged subsequent arrangement must, in
any event, be examined with reference to the statutory requirements
governing the transaction. The Court cannot give effect to an
arrangement merely because it has been pleaded or described by the
parties in a particular manner if its object or operation is inconsistent
with a mandatory statutory provision. In S. Saktivel, the Supreme Court,
while referring to proviso (4) to Section 92 of the Evidence Act,
considered whether a subsequent oral arrangement could be relied upon
to rescind, modify or vary the terms of a registered settlement deed. The
Court held that where a contract or disposition is required by law to be in
writing, its terms cannot be modified, altered or substituted by an oral
agreement or arrangement; and where the original document is a
registered document, its terms can be altered, rescinded or varied only by
a subsequent registered document. The decision thus underscores that the
terms and legal effect of a registered document cannot be displaced by a
subsequent unregistered or oral arrangement inconsistent with its terms.

61.    There is another aspect which assumes significance. Even where a
tenant subsequently enters into an agreement for purchase of the
tenanted premises, the character of his possession does not automatically
stand transformed into possession in part performance of the contract. In
Kashi Nath Mehrotra, this Court considered the scope of Section 53-A of
the Transfer of Property Act in a case where the proposed transferee was
already in possession. It was held that mere continuance of possession is
not, by itself, sufficient to attract the doctrine of part performance. Such
continuance must be attributable to the part performance of the contract,
and the contractual arrangement must contemplate either delivery of
possession or continuance of possession pursuant to the agreement. The
decision thus makes it clear that the protection founded upon part
performance does not arise merely because a person already in
possession subsequently enters into an agreement for sale.

62.    The aforesaid principle is of particular relevance in the present
case. The question is not merely whether an agreement to sell dated
24.12.2002 was executed between the parties, but whether, by its terms
                                    21
                                                       SCCR No. - 85 of 2026

and by the manner in which it was acted upon, the agreement legally
brought about a change in the capacity in which the revisionists
continued in possession. If the possession was already referable to an
existing tenancy, the mere execution of an agreement to sell would not,
without more, establish that such possession thereafter became referable
exclusively to the proposed sale. A change in the legal character of
possession must be established by cogent and legally admissible
material.

63.    On consideration of the findings recorded by the courts below, the
revisionists have failed to establish that their possession after 24.12.2002
was, in law, referable exclusively to the proposed sale and ceased to be
referable to the subsisting tenancy. No legally sustainable basis has been
demonstrated for holding that the agreement to sell, by itself, resulted in
an automatic conversion of the tenancy into possession as a prospective
purchaser. The defence that the relationship of landlord and tenant stood
extinguished merely on account of the agreement to sell, therefore,
cannot be accepted.

II. Validity and Effect of the Notice Determining the Tenancy

64.    Once the relationship of landlord and tenant is found to have
continued, the notice dated 01.09.2019 assumes its ordinary legal
significance. The principal objection now urged by the revisionists is
that the said notice demanded rent for the period from 01.01.2003 to
31.08.2019 and that a substantial part of the demand was barred by
limitation. The question, therefore, is whether the inclusion of such
demand rendered the notice itself invalid and incapable of operating as a
notice determining the tenancy.

65.    The two aspects, namely, the recoverability of a particular amount
of arrears and the validity of a notice determining tenancy, are required
to be kept distinct. A claim for recovery of arrears may be subject to the
law of limitation, but that circumstance does not necessarily determine
the validity of a notice by which the landlord has otherwise clearly
expressed his intention to terminate the tenancy. The question, therefore,
                                     22
                                                     SCCR No. - 85 of 2026

has to be examined by keeping in view the substance of the notice and
the statutory purpose which it seeks to fulfil.

66.     The principle that limitation ordinarily bars the remedy and does
not extinguish the underlying right or debt has long been recognised. In
Khadi Gram Udyog Trust, the Supreme Court, while considering the
expression “entire amount of rent due”, recognised that a debt may
become barred by limitation without being extinguished. In that context,
reliance was placed upon Halsbury's Laws of England (Third Edn.), Vol.
24, p. 205, Article 369, which explains that the Limitation Act ordinarily
takes away the remedy by action or set-off while leaving the right
otherwise unaffected. The same principle was expressed by Cotton, L.J.
in Curwen v. Milburn13, in stating that a statute-barred debt continues to
be a due debt although its recovery cannot be enforced by action.

67.     The aforesaid principle was also recognised by the Supreme
Court in Bombay Dyeing and Manufacturing Co. Ltd. v. State of
Bombay14, where it was held that the law of limitation ordinarily bars the
remedy without extinguishing the debt, except in cases where the statute
itself provides for extinguishment. The principle was reiterated in the
context of personal actions, namely, that limitation ordinarily bars the
remedy without extinguishing the underlying right. Thus, merely
because a particular component of the rent claimed in the notice may not
be recoverable through a proceeding instituted after expiry of the
prescribed period of limitation, it does not follow that the underlying
relationship of debtor and creditor or the character of the amount as rent
due stands obliterated for every purpose.

68.     This distinction becomes important while examining the validity
of the notice dated 01.09.2019. A notice determining tenancy is not
rendered invalid merely because, in addition to expressing the intention
to terminate the tenancy, it contains a demand which may subsequently
be found to be partly barred by limitation. The material consideration is
whether the notice, read as a whole, sufficiently and unequivocally

13 (1889) 42 Ch D 424
14 AIR 1958 SC 328
                                     23
                                                      SCCR No. - 85 of 2026

conveyed the landlord's intention to determine the tenancy and whether
the tenant was in a position to understand the act of determination.

69.      The law does not require a notice to quit to be construed with a
hyper-technical approach. In L.M. Joshi, the validity of a notice to quit
was considered with reference to the substance of the statutory
requirement and the intention conveyed by the notice. The validity of
such a notice cannot be made dependent upon technical objections which
do not affect the essential requirement of communicating the intention to
determine the tenancy.

70.        The same principle was stated by the Supreme Court in
Bhagabandas Agarwalla wherein it was held that a notice to quit should
not be construed with a desire to find faults which would render it
defective. The notice has to be construed so as to give effect to the
transaction in accordance with the principle ut res magis valeat quam
pereat. The Court must, therefore, examine the notice in a common-
sense manner and ascertain whether its substance sufficiently conveys
the intention to determine the tenancy. The Supreme Court, in that
context, also referred to the observation of Lindley, L.J. in Sidebotham v.
Holland15, that the validity of a notice to quit ought not to turn on the
“splitting of a straw”.

71.      Applying the aforesaid principles, the revisionists have failed to
demonstrate that the demand of arrears contained in the notice dated
01.09.2019 rendered the intention to determine the tenancy ambiguous
or incapable of being understood. The notice proceeded on the footing
that the revisionists continued to be tenants, demanded payment of the
rent stated to be due and, at the same time, communicated the landlord's
decision to terminate the tenancy. The fact that some part of the amount
demanded may, upon application of the law of limitation, ultimately be
found to be not legally recoverable cannot, by itself, obliterate the
separate and otherwise intelligible act of determination of tenancy
contained in the notice.


15    (1895) 1 QB 378
                                    24
                                                      SCCR No. - 85 of 2026

72.    The objection based on limitation may, therefore, have relevance
while determining the quantum of arrears legally recoverable from the
revisionists, but it does not, in the facts of the present case, furnish a
ground for invalidating the notice dated 01.09.2019 in its entirety. No
defect has been demonstrated which goes to the root of the determination
of tenancy. The notice, when read as a whole and in a manner consistent
with its substance and purpose, sufficiently conveyed the landlord's
intention to bring the tenancy to an end. The objection to its validity on
the ground that the demand included arrears pertaining to an earlier
period is, accordingly, rejected.

73.   The conclusion aforesaid is also consistent with the principle
reiterated by this Court in B.R. Trading Company that the validity of a
notice under Section 106 of the Transfer of Property Act is to be
determined by construing the notice as a whole and by examining
whether it sufficiently conveys the intention of the landlord to terminate
the tenancy. The absence of any particular expression, including the
word “terminate”, is not by itself decisive, so long as the language
employed clearly manifests the intention to bring the tenancy to an end
and the date of determination is ascertainable. A notice, therefore, is not
to be construed in a hyper-technical manner so as to defeat its
substantive purpose.

74.     The remaining submission concerns the deposits and tenders
allegedly made by the revisionists. The mere fact that the defendants
deposited certain amounts, or that such deposits were made under
protest, cannot by itself conclude the question of default. The relevant
inquiry is whether the amounts so deposited represented the rent legally
payable, whether the deposits covered the period for which rent had
become due, whether they were made within the time contemplated by
law and, where a statutory provision governing such deposit is invoked,
whether the conditions prescribed therein stood duly satisfied. A deposit
can discharge the liability of a tenant only to the extent that the
requirements governing such deposit are otherwise fulfilled.
                                       25
                                                      SCCR No. - 85 of 2026

75.    The court below has considered the rent deposit tenders placed on
record along with the other evidence and has recorded a finding of
default against the revisionists. The said finding cannot be characterised
as one rendered by ignoring material evidence or by adopting an
interpretation of the record which no reasonable court could have
adopted. The revisionists have not been able to demonstrate any such
patent error in the consideration of the deposit documents as would
warrant interference in the limited revisional jurisdiction under Section
25 of the Provincial Small Cause Courts Act, 1887. The mere possibility
of another view being taken on the evidence, or a different appreciation
of the deposit documents being possible, does not furnish sufficient
ground for interference in revision.

76.   It is also significant that the principal defence of the defendants
before the court below was that, after execution of the agreement to sell
dated 24.12.2002, they had ceased to be tenants and their possession was
thereafter referable to the proposed sale. Having failed to establish any
legally sustainable change in the character of their possession, they
cannot, at the same time, rely upon the same transaction to avoid the
consequences arising from the subsisting tenancy. Once the relationship
of landlord and tenant is found to have continued, the obligation to pay
rent and the consequences of failure to discharge that obligation
necessarily have to be examined with reference to the subsisting tenancy
and the applicable statutory provisions.

III. Scope of Revisional Jurisdiction and Final Determination

77.   The findings recorded by the court below with regard to
continuance of the tenancy, validity of the notice dated 01.09.2019 and
default, therefore, do not suffer from any jurisdictional error, perversity
or material irregularity warranting interference in exercise of the
revisional jurisdiction under Section 25 of the Provincial Small Cause
Courts Act, 1887. No ground has been made out for re-appreciation of
the evidence merely because another view may arguably be possible.
The findings of the court below, being founded upon a consideration of
                                    26
                                                       SCCR No. - 85 of 2026

the material available on record and not suffering from any error of the
nature contemplated by the revisional jurisdiction, call for no
interference.

78.     On an overall consideration of the pleadings, documentary
evidence and oral evidence on record, this Court finds that the learned
court below has duly considered the principal defence of the defendants
founded upon the agreement to sell dated 24.12.2002, the alleged
payment of the entire sale consideration and the possession letter relied
upon by them. The conclusion that the defendants failed to establish
either acquisition of ownership or any legally recognisable change in the
character of their possession cannot be said to be perverse merely
because the revisionists seek a different appreciation of the same
material. The findings recorded by the court below are founded upon the
evidence available on record and disclose a plausible and legally
sustainable view.

79.   The jurisdiction under Section 25 of the Provincial Small Cause
Courts Act, 1887, is supervisory in character and is not intended to
provide a second opportunity for a re-appraisal of the evidence as though
the revisional court were exercising appellate jurisdiction. Interference is
justified where the court below has acted contrary to law, exceeded or
failed to exercise the jurisdiction vested in it, or committed a material
irregularity in the exercise of its jurisdiction resulting in an erroneous
adjudication. A finding cannot be interfered with merely because, on the
same evidence, another view may also be possible. Unless the finding is
shown to be such that no reasonable court could have arrived at it, or is
vitiated by a manifest error of law or procedure, the revisional court
would not be justified in substituting its own assessment for that of the
court of first instance.

80.   Tested on the aforesaid parameters, no such infirmity has been
demonstrated in the present case. The essential foundation of the
defence, namely, that the defendants' possession ceased to be referable to
the tenancy on 24.12.2002 and thereafter became possession in part
                                    27
                                                       SCCR No. - 85 of 2026

performance of the agreement to sell, has not been established. The
agreement to sell, even when considered together with the alleged
payment of consideration and the possession letter, does not furnish a
legally sustainable basis for holding that the subsisting relationship of
landlord and tenant stood extinguished. The defendants, therefore,
cannot defeat the claim for eviction merely by relying upon the existence
of the agreement to sell or upon the alleged payment of the sale
consideration.

81.     Once the continuance of the tenancy is established, the
subsequent notice dated 01.09.2019 has to be examined in that legal
setting. As already held, the notice sufficiently communicated the
landlord's intention to determine the tenancy and was not rendered
invalid merely because the demand of arrears contained therein extended
to a period in respect of which the remedy for recovery may have
become barred by limitation. The objection as to limitation, therefore,
does not affect the validity of the determination of tenancy. The finding
of default recorded by the court below, having also been examined in the
light of the deposits and tenders relied upon by the revisionists, does not
disclose any error warranting revisional correction.

82.   The cumulative effect of the foregoing discussion is that the
relationship of landlord and tenant between the parties continued
notwithstanding the agreement to sell dated 24.12.2002; the tenancy was
validly determined by the notice dated 01.09.2019; and the revisionists
have failed to establish any legally sustainable defence against the claim
for eviction. The principal grounds upon which the decree of eviction
has been assailed thus fail on their own merits as well as on an
examination of the material available on record.

83.    For the foregoing reasons, this Court finds no jurisdictional error,
material irregularity or perversity in the judgment and decree dated
14.05.2026 passed by the learned Small Causes Court/Additional
District & Sessions Judge, Court No. 18, Kanpur Nagar, so as to warrant
interference in exercise of the revisional jurisdiction under Section 25 of
                                                               28
                                                                                 SCCR No. - 85 of 2026

                            the Provincial Small Cause Courts Act, 1887. The revision consequently
                            fails and is, accordingly, dismissed. The judgment and decree dated
                            14.05.2026 are affirmed. There shall, however, be no order as to costs.




                                                                 (Dr. Yogendra Kumar Srivastava,J.)

                            September 07, 2026
                            Imroz




Digitally signed by :-
MOHAMMAD IMROZ KHAN
High Court of Judicature at Allahabad