Om Prakash Gupta Vs Ajay Kumar

IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.290 of 2018

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(Against the judgment dated 04.01.2018 passed by learned Principal District Judge, Bokaro in Civil Appeal No.23 of 2017)

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Om Prakash Gupta, son of Ramanand Gupta, aged about 56 years, Proprietor of Saraswati Dresses, resident of Mahavir Chowk, Chas, P.O. & P.S. Chas, District Bokaro

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.... .... …. Defendant/Appellant /Appellant.

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Versus

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Ajay Kumar, son of Late Bishundeo Yadav, resident of Sector II/C, Qr. No. I-306, B.S. City, P.O. & P.S. Bokaro, District Bokaro

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.... .... …. Plaintiff/ Respondent/Respondent

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For the Appellant : Mr. Rohitashya Roy, Advocate Mr. Tarun Kr. Mahto, Advocate Mr. Vibhor Mayank, Advocate Mr. Shivam Kumar, Advocate

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P R E S E N T

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court :- Heard the learned counsel for the appellant.

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This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of affirmance dated 04.01.2018 passed by learned Principal District Judge, Bokaro in Civil Appeal No.23 of 2017 by which the learned first appellate court confirmed the judgment and decree passed by the learned trial court being the learned Additional Munsif, Bokaro in Title Eviction Suit No.09 of 2007 dated 31.05.2017, by which the learned Additional Munsif, Bokaro directed the defendant/appellant to vacate the suit premises and dismissed the Civil Appeal No.23 of 2017.

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The brief facts of the case is that the respondent/plaintiff filed Title Eviction Suit No.09 of 2007 in the court of Additional Munsif, Bokaro with a prayer for a decree to be passed in favour of the plaintiff and against the defendant for eviction of the defendant from the tenanted premises, on the ground of default in payment of rent and personal necessity of the tenanted premises by the plaintiff and to direct the defendant to deliver vacant possession of the suit premises to the plaintiff. A prayer was also made in the suit for recovery of eight (8) month’s arrear rent from March, 2007 to October, 2007; cost of the suit and other reliefs.

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The case of the plaintiff in brief is that the plaintiff is the rightful owner of the two shop rooms having been purchased the same from Sri Balram Sharma and others vide registered sale-deed No.1904 dated 28.03.2007. The vendor of the plaintiff inducted the defendant as a tenant on payment of monthly rent of Rs.300/- payable on 10^th day of each succeeding English Calendar month beside the electricity charges by virtue of the Tenancy Agreement dated 01.09.1992. The vendor of the plaintiff informed the defendant, about the sale of the tenanted premises to the plaintiff and asked him to pay the monthly rent to the plaintiff from the month of March, 2007 at the rate of Rs.400/- per month. The vendor of the plaintiff received rent at the rate of Rs.400/- per month from the defendant till the month of February, 2007 but the defendant stopped paying rent thereafter. Consequent upon the default of the defendant to pay the monthly rent, the plaintiff and his vendor jointly issued a written letter to the defendant calling upon the defendant to pay the monthly rent. As the defendant intentionally and deliberately neglected payment of the monthly rent and became a defaulter, further as the same was

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required by the plaintiff for his personal necessity; hence, the plaintiff filed the suit for eviction of the defendant as already indicated above.

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The defendant in his written-statement, challenged the maintainability of the suit on various technical grounds. The defendant admitted that he was a tenant under the vendor of the plaintiff namely Balram Sharma initially at the rate of Rs.251/- per month; which was subsequently enhanced to Rs.400/- per month. The defendant claimed that Balram Sharma executed an agreement for sale in favour of the defendant on 11.05.1992 with the condition that Balram Sharma can in no way get the premises vacated unless willfully the defendant so agrees, on his wish. The defendant claimed that he has already paid Rs.42,150/- for construction of the shop room. The defendant along with Satya Narayan Sao filed Title Suit No.28 of 2007 for Specific Performance of Contract of Sale against Balram Sharma. The defendant pleaded that consequent upon the execution of the agreement for sale, the relationship of landlord and tenant between the vendor of the plaintiff and the defendant was converted to the relationship of vendor and purchaser with effect from 11.05.1992.

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On the basis of the rival pleadings of the parties, the learned trial court settled the following twelve issues:-

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(1) Is the suit maintainable in its present form?

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(2) Is there any valid cause of action for the present suit?

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(3) Is the suit barred by the law of limitation?

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(4) Is the suit barred by the provision of Jharkhand Building (L. R & E) Control Act?

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(5) Is the suit barred by the principle of Specific Relief Act?

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(6) Is the suit barred by principle of T.P. Act?

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(7) Is there any landlord tenant relationship between plaintiff and defendant?

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(8) Is there any valid contract for selling the tenanted premises in between previous landlord and tenant?

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(9) Is the plaintiff entitled for a decree of eviction on the ground of default and personal necessity against the defendant from the tenanted premises?

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(10) Is the plaintiff entitled for a decree of recovery of 8 month arrear of monthly rent from March, 2007 to October, 2007 from the defendants?

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(11)

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Is there any partial eviction possible?

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(12) Is the plaintiff entitled for any other relief or reliefs?

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In support of his case, the plaintiff altogether examined four witnesses and proved the documents which have been marked Ext. 1 to Ext. 4/a while the defendant examined six witnesses and also proved the documents which were marked Ext. A series and B.

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The learned trial court first took up issue Nos.(4) and (7) together and after considering the evidence in the record, came to the conclusion that the relationship of landlord and tenant exists between the parties and decided the issue No.(7) in favour of the plaintiff and also answered the issue No.(4) in the negative by holding that there is no bar under the provisions of the Jharkhand Building (Lease, Rent and Eviction) Control Act in filing the suit.

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The learned trial court next took up the issue No.(10) and considering the evidence in the record held that the defendant/tenant having defaulted in payment of the rent from March, 2007 to October, 2007, the plaintiff is entitled for a decree for recovery of monthly rent from the month of March, 2007 till October, 2007 and decided the issue No.(10) in favour of the plaintiff.

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Thereafter, the learned trial court took up the issue Nos.(9) and (11) together and after considering the evidence in the record, came to the conclusion that the plaintiff cannot be said to be have personal necessity of the suit premises for which eviction can be ordered and in view of the finding of the issue No.(9), held that the issue No.(11) is irrelevant.

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The learned trial court disposed of the issue Nos.(5) and (6) against the defendant as the defendant did not press the same.

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Then, the learned trial court took up the issue Nos.(1), (2) and (3) together and held that the suit is maintainable, there is cause of action for the suit and the suit is not barred by limitation. 13. In respect of the issue No.(8) next taken up by the learned trial court, it observed that the trial court cannot decide the issue in the absence of any counter-claim.

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Lastly, the learned trial court took up the issue No.(12) and held that the plaintiff is entitled for the decree of eviction and realization of the arrear of rent and decreed the suit as already indicated above.

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Being aggrieved by the judgment and decree passed by the learned trial court, the defendant filed Civil Appeal No.23 of 2017 in the court of Principal District Judge, Bokaro which was ultimately heard and disposed of by the learned first appellate by the impugned judgment as already indicated above.

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The learned first appellate court on the basis of the materials available in the record and the submissions made before it, formulated the following three points for determination:-

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“I. Whether the judgment and decree passed by the learned court below are sustainable or not?

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II. Whether there exists relationship of the landlord and the tenant in between the plaintiff and the defendants?

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III. Whether any other relief or reliefs the plaintiff-respondent is entitled?”

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The learned first appellate court made independent appreciation of the

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evidence in the record and took up the point for determination Nos.(I) and (II) together and arrived at the conclusion that the plaintiff has successfully proved that the tenant-defendant has defaulted in payment of rent of the suit premises

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from March, 2007 to October, 2007 and decided the point for determination Nos. I and II against the defendant/appellant.

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The learned first appellate next took up the point for determination No. III and decided the same against the defendant/appellant and dismissed the appeal after affirming the judgment and decree passed by the learned trial court.

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Learned counsel for the appellant submits that both the courts below have committed a grave of law by holding that there was a relationship of landlord and tenant between the defendant and the vendor of the plaintiff, as such the defendant became a tenant under the plaintiff. It is next submitted that both the courts below have committed a grave illegality by holding that the defendant is liable to be evicted on the ground of default. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiff be dismissed.

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Having heard the submission of the learned counsel for the appellant made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been reiterated by the Hon’ble Supreme Court of India in the case of D.N. Joshi (Dead) through Legal Representatives and Others v. D.C. Harris & Another reported in (2017) 12 SCC 624 paragraph-32 of which reads as under:-

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“32 . As a matter of fact, the appellant-defendants have not questioned the validity of the sale deed in favour of the respondent-plaintiffs. The title in the property having vested in Zamir Ahmad, who, in turn, transferred it to the plaintiff (respondents) by way of a sale deed. It is not open to the appellant-defendants to question the ownership of the respondent-plaintiffs in respect of the suit premises. The factum which impressed the trial court and the first appellate court to hold that the gift deed in favour of Zamir Ahmad was invalid, namely, that donor (Akhtari Begum) did not request the tenant (defendant) to attorn to the donee (plaintiff), is also devoid of substance. For, this Court in Ambica

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Prasad v. Mohd. Alam [Ambica Prasad v. Mohd. Alam, (2015) 13 SCC 13 : (2016) 1 SCC (Civ) 535] has enunciated that it is well settled that after the transfer of the landlord's right in favour of the transferee, the latter gets all rights and liabilities of the landlord in respect of the subsisting tenancy. Section 109 of the Transfer of Property Act does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him and that attornment is not necessary to confer validity of the transfer of the landlord's rights. Strikingly, even in this case, the transferor continued to collect the rent of the suit property from the tenant with the consent of the transferee after the execution of the exchange deed, until the transferee took over the affairs of the suit property. The Court held that it will not debar the owner or transferee from filing a suit for eviction against the tenant.” (Emphasis supplied)

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that after the transfer of the landlord's right in favour of the transferee,

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the latter gets all rights and liabilities of the landlord in respect of the subsisting tenancy.

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Now, coming to the facts of the case, the undisputed fact remains that the defendant accepted that the vendor of the plaintiff was his landlord. The undisputed fact also remains that the vendor who was the landlord of the defendant has transferred the suit property to the plaintiff by way of a registered sale-deed. The defendant though pleaded of having entered into an agreement for sale with the vendor of the plaintiff but he could not establish the same by producing any cogent evidence.

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Under such circumstances, in view of the said settled principle of law consequent upon the purchase of the suit property by the plaintiff, the plaintiff has become the landlord of the defendant as by such purchase the plaintiff has stepped into the shoes of the landlord of the defendant who was the vendor of the plaintiff.

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Under such circumstances, this Court is of the considered view that the learned trial court has not committed any illegality by holding the existence of

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the relationship of landlord and tenant between the plaintiff and the defendant. It is the admitted case of the defendant that the defendant has not paid rent to the plaintiff as he did not acknowledge the plaintiff to be his landlord. So, the default in payment of the rent from March, 2007 to October, 2007 has also been well proved.

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Under such circumstances, this Court is of the considered view that there is absolutely no substantial question of law involved in this Second Appeal.

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