Binoy Dokania Vs Decorum Nirman Pvt. Ltd. through Mr Shib Kumar Parsuramka

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 19 of 2019

Binay Kumar Dokania, aged about 51 years, son of Sri Raghunath Dokania, Resident of Jamtara Bazar, P.O. & P.S. Jamtara, District Jamtara … … Defendant/Appellant/Appellant Versus

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Decorum Nirman Limited, a company limited by shares incorporated under the Companies Act, 1956 (No. 1 of 1956) having its registered office at 23A, Netaji Subhash Road, 6^th Floor, Room No. 19, P.O. + P.S. Park Street, Kolkata – 700001, represented through Mr. Shib Kumar Parsuramka, Son of late Shankarlal Parsuramka, resident of Jamtara Bazar, Jamtara, P.O., P.S., Subdivision & Sub registration office Jamtara, District Jamtara as Director

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… … Plaintiff/Respondent/Respondent

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. Rahul Kumar Gupta, Advocate For the Respondent : Mr. Nipun Bakshi, Advocate Mr. Shubham Sinha, Advocate

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Lastly heard on 23^rd January, 2025

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13/11^th March 2025

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1. This appeal has been filed challenging the judgment and decree dated 18.12.2018 (decree signed on 03.01.2019) passed by the learned District Judge-I, Jamtara in Civil Appeal No. 26/2017 whereby the learned lower appellate court has been pleased to dismissed the appeal and has affirmed the judgment dated 14.06.2017 (decree signed on 30.06.2017) passed by the learned Civil Judge (Sr. Division) II, Jamtara in Title Eviction Suit No. 03/2012 whereby the learned trial court has decreed the plaintiff’s suit.

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2. This appeal was admitted for final hearing vide order dated 31.03.2022 on the following substantial questions of law: -

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1) Whether certified copy of the registered sale deed No. 428 of 2008 dated 17.7.2008 could have been exhibited on the date of the judgment as a public document?

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2) Whether courts below could have concluded on the basis of the aforesaid sale deed that the plaintiff is the land lord of the defendant(s)?

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3) Whether in view of the sale deed, the plaintiff can claim that he has become land lord of the property by virtue of aforesaid?

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4) Whether in view of the fact that the sale deed which covers total area of 21.95 decimal of land, the decree could have been passed for eviction in respect of 34 decimal, which is beyond the area covered by the sale deed?.

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Arguments of the Appellant

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3. While referring to the substantial question No. 1, the learned counsel for the appellant has submitted that the registered sale deed No. 428 of 2008 dated 17.07.2008 (Exhibit-6) has been wrongly admitted in evidence on the date of judgment. He has referred to the Order VII Rule 14 of CPC to submit that the sale deed, which was the basis of the claim of the plaintiff, was required to be produced while filing the plaint and anything subsequently can be introduced only with the leave of the Court. He has also submitted that as per Order XIII Rule 1 of CPC, the original document is also required to be filed. The learned counsel submits that the manner in which the sale deed was admitted into evidence is unknown to the provisions of CPC. He has also submitted that if the sale deed is excluded, then the basis of the plaintiff fails and consequently the appeal is to be allowed.

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4. The learned counsel has also submitted that merely because the sale deed is a registered document, the same cannot be adduced in evidence in the manner which has been done, inasmuch as, there was no occasion for the appellant-tenant to cross-examine the witnesses of the plaintiff with regard to the nature and the extent of land involved in the sale deed. He has also submitted that the sale deed in the present case cannot be said to be an admitted document. The learned counsel submits that in case, the sale deed is excluded from the evidence, then none of the parties can rely

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upon the same for any purpose whatsoever. The learned counsel has also submitted that merely because the sale deed is registered that by itself does not become a public document. However, he submits that he shall provide a copy of a judgment in support of this argument within a period of two days from today.

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5. During the course of hearing, while referring to substantial question No. 4 which relates to area covered under the aforesaid sale deed, it transpired that apart from the said sale deed, there is no other material or evidence on record to substantiate as to what was the area of the property covered under the sale deed.

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6. The learned counsel has submitted that in case, the sale deed is excluded, then the matter has to be considered on the basis of materials available on record.

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7. The learned counsel has further submitted that the appellant never acknowledged the respondent as the landlord and was remitting rent to the previous landlord and never paid rent to the respondent. He has also submitted that the previous landlord has not deposed before the court to deny the remittance of rent by the appellant to the previous landlord through money orders. He has also submitted that it was the case of the appellant that the previous landlord at times used to refuse acceptance of the rent through money order.

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Arguments of the Respondent

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8. Learned counsel appearing on behalf of the respondent has submitted that the sale deed is not in dispute. He has also submitted that the appellant was only disputing that the sale deed could not have been executed as there was a lease deed in favour of the appellant. He has also submitted that the sale deed being admitted document could have been taken into evidence even at the stage of argument as the execution of the sale deed was not in dispute. The learned counsel has further submitted that the appellant has been a rank defaulter. No evidence has been placed on record by the appellant regarding remittance of rent to the previous

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landlord as the appellant has claimed that he continued to pay rent to the previous landlord till the expiry of the lease in the year 2011.

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9. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2015) 13 SCC 13 (Ambica Prasad Vs. Mohd. Alam and Anr.) paragraph 12, 14, 15 and 16 to submit that there is no need for the tenant to attorn to the sale. He has submitted that by Exhibit-2, the previous landlord had intimated the appellant regarding the sale of the property and both the courts have come to a conclusion that the appellant was defaulter with respect to the payment of rent to the respondent who was the purchaser of the property and stepped into the shoes of the original landlord. He has also submitted that the appellant had paid rent to the respondent to some extent, but subsequently he stopped payment of rent. He has also submitted that the appellant, under Section 19 of the Jharkhand Building (Lease, Rent and Eviction) Control Act, could have deposited the rent before the rent controller in case of any confusion as to who is the real landlord of the property, but no such steps were taken.

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10. He has also submitted that the appellant had also issued a letter to the respondent seeking renewal of lease. The learned counsel has also relied upon the judgment passed by the Hon’ble Supreme Court reported in 2023 SCC OnLine 1183 (Appaiya Vs. Andimuthu alias Thangapandi and Ors.) to submit that the registered sale deed is a public document.

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11. The learned counsel has submitted that the appellant is enjoying the property without paying rent at all.

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12. The learned counsel has also submitted that the definition of landlord is wide. The previous landlord had informed the appellant that the entire property has been transferred to the respondent, and therefore, there is no question of not remitting rent of the entire property to the respondent. He has also submitted that there are concurrent findings recorded by both the courts that the appellant is a defaulter in the matter of payment of rent.

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Findings of this Court.

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13. The plaintiff filed the suit seeking decree for the eviction of defendant from the suit premises and for delivery of possession along with arrears of rent and cost of the suit.

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Case of the plaintiff .

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14. The case of the plaintiff in nutshell was that the suit lands bearing Plot No. 324/B, 325/B, 326/B having its area 10 decimals, 18 decimals and 6 decimals respectively with structure thereon originally belong to Bhagwati Prasad Parsuramka. The defendant obtained the aforesaid land covering 75' x 45' corrugated thatched shed and surrounded by brick-built compound wall by registered Deed of Lease bearing No. 1281 of 1996 dated 01.11.1996 for fixed period of 15 years i.e. from 01.11.1996 to 31.10.2011 from its original owner Sri Bhagwati Prasad Parsuramka on monthly rent of Rs. 2000/- per month. As per the terms and conditions of the said Deed, the rent of the leasehold property was to increase @ 10% on expiry of every three years and accordingly, the rent of the premises became Rs. 2928/- per month from 01.11.2008.

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As per the plaint, the original Lessor and owner Bhagwati Prasad Parsuramka sold the said Lease Hold Property to the plaintiff vide Registered Deed of Sale bearing No. 428 of 2008 dated 17.07.2008 and since then, the plaintiff became the owner of the suit properties. It has been further stated that Bhagwati Prasad Parsuramka issued a Notice dated 17.10.2008 intimating the defendant to pay the rent of the Leasehold property/suit property to the plaintiff from July, 2008. The defendant received the Notice on 17.10.2008 and thereafter, started paying rent of the suit property to the plaintiff and paid till October, 2010. Since 01.11.2010, the defendant defaulted in payment of rent consecutively for 19 months and arrears of rent had become Rs. 2,928/- x 19 = Rs. 55,632/only, which was due. The plaintiff gave legal notice dated 22.10.2011 to vacate the suit premises on 31.10.2011 as the period of lease was going to expire on 31.10.2011 and also to pay the arrears of rent. The defendant

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gave an evasive reply dated 08.11.2011 and denied to quit and vacate the house. It has been further stated that the plaintiff needed the suit premises for his own use and occupation to start his own business. Thus, the defendant was liable to be evicted under the provisions of Sec. 11(a), (c), (d) and (e) of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 and pay arrears of rent.

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Case of the Defendant

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15. Defendant appeared and filed his written statement alleging that the suit was not maintainable and there was no cause of action and the suit was bad for non-joinder of necessary party namely the original landlord Bhagwati Prasad Parsuramka and that the plaintiff had no locus standi to file this suit. As per Clause 11 of the Lease Deed on expiry of the period of tenancy if the defendant was willing to continue the tenancy for further period, the defendant could enter into a fresh agreement/Kirayanama with the landlord Bhagwati Prasad Parsuramka or his successor. It was asserted that there was also an oral agreement between the defendant and Bhagwati Prasad Parsuramka in or about June, 2008, when Bhagwati Prasad Parsuramka was expressing his willingness to sell the suit property and it was agreed that as and when the landlord would sell the suit property, the landlord would give preference to the defendant for purchasing the same provided both agree on the price. It was alleged that the plaintiff was a known land Mafia having sole business is to purchase and sell lands and properties for profit; the plaintiff had already purchased a large number of properties and had sold at higher price. Defendant has given several descriptions of sale deed numbers of the year 2007 to 2012 regarding transaction of plaintiff and pleaded that the oral agreement between the defendant and original landlord became known to the plaintiff and then the plaintiff wanted to purchase the property for selling the same later on at higher price. It was asserted that by giving some allurement to the original landlord, the plaintiff secretly got the Deed executed for the suit property.

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Since the Lease was to expire on 31.10.2011, renewal of lease before the original landlord was claimed as stipulated in the Lease Deed and this demand was made orally as well as by written notice sent by registered post on 17.08.2011 but the original landlord did not give any reply. It was alleged that the Deed of Sale bearing No. 428 of 2008 dated 17.07.2008 was an illegal instrument by which original landlord could not legally convey the suit property to the plaintiff. It was asserted that there was a condition attached to the Lease Deed which ought to have been complied with by the original landlord and without complying the same, the original landlord had no right to transfer the property to the plaintiff. It was asserted that the Defendant never paid rent to the plaintiff since he did not recognize the plaintiff as the landlord of the suit premises. The defendant all along paid rent to the original landlord but when the original landlord started refusing to accept rent at the instance of the plaintiff, the rent was being sent to him by postal money order. Sometimes, the original landlord used to accept the rent and sometime he used to refuse. Defendant has stated that on getting notice, the defendant sent a written reply on 08.11.2011 making it clear that if the plaintiff claimed that he has succeeded the suit property by purchasing the same from the original landlord and has stepped into the shoes of the original landlord, then the plaintiff was bound to comply with conditions of Lease and the defendant had put forth his claim of renewal of lease but the plaintiff did not reply to said demand of the defendant. The defendant prayed that the plaintiff was not entitled to any relief and the suit was liable to be dismissed.

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16. The learned Trial Court framed the following issues for consideration: -

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

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

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(iii) Is there any relationship of landlord and tenant existing between the parties ?

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(iv) Is the plaintiff liable for eviction being defaulter in payment of rent ?

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(v) Is the suit premises required for the bona fide personal use of the plaintiff ?

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(vi) Will partial eviction suffice the need of the parties ?

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(vii) To what relief or reliefs the plaintiff are entitled for ?

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17. Both the parties led oral and documentary evidences.

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18. The learned Trial Court has given its findings with regard to issue nos. (iii), (iv), (v), (vi) taken up together which is quoted as under:-

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8. Perused the case record, exhibits, deposition of witnesses and after hearing the argument as well as on the basis of evidence as discussed above, I come to the conclusion that Ext.-1 (deed of lease), Ext.-6 is Sale deed as well as Ext.-5 signature of Binay Dokania on notice proved the facts that plaintiff has purchased the lease property and all right and title of original lessor transferred to the plaintiff. Defendant have full knowledge of the transfer and relying on the principle laid down by Hon'ble Apex Court cited in A.I.R 2015 S.C. 2459, Ambica Prasad Vrs. Md. Alam and others. The relationship of landlord and tenant is well established between plaintiff and defendant. Accordingly issue No. (iii) is decided in favour of the plaintiff.

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Plaintiff has himself admitted in the deposition that he has not

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paid any amount of rent after expiry of the lease ( D.W.-2, para-2). Thus non-payment of rent by the defendant come under the ambit of section 11 (e) of the Jharkhand Building ( L, R & E) Control Act 2000 and lease period has already expired and one year more has also been elapsed, it is also violation of clause of lease. As per deposition of plaintiff (P.W.-1) para-8 , plaintiff requires land for personal necessity and it has not been rebutted by the defendant. On the issue of partial eviction, defendant has not led any evidence and this matter has not raised by the parties either during argument or in evidence. So, issue No. (iv) , (v) are decided in favour of the plaintiff and issue No. (vi) is dismissed as not pressed …….”

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Issue nos.(i) and (ii) were decided in favour of the plaintiff by observing that the suit was maintainable and the exhibits i.e. lease of Deed and notice showed the fact that there was valid cause of action for the suit. The plaintiff was held entitled to get a decree of eviction as provided u/s 11 (1) (a), (c), (d) of Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 and to get arrears of rent and directed that the defendant

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will have to pay the rent at the rate of Rs. 2000/- per month till eviction.

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19. The learned Appellate Court has framed the following points for determination: -

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A. Whether there is relation of landlord and tenant between the parties and the learned lower court was justified in deciding the same in favour of plaintiff?

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B. Whether the learned lower court was justified in deciding the issue of personal need of plaintiff of the suit premises and the defendant/appellant was defaulter in payment of rent and he is liable to be evicted from the suit premises?

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C. Whether the learned lower court was justified in decreeing the suit of plaintiff and the impugned judgment and decree are liable to be sustainable?

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20. While deciding the aforesaid point of determination no. (A), the appellate court recorded that the defendant admitted in his pleading and evidences that –

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a. Bhagwati Prasad Parsuramka, was the owner of suit premises;

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b. Bhagwati Prasad Parsuramka, leased out the suit premises over Plot No. 324/B area 10 decimal, Plot No. 325/B area 18 decimal and Plot No. 326/B area 6 decimals total area 34 decimals of Mouza Dhandra, P.S. Jamtara on which he has constructed 75' x 45' shed with corrugated/iron shed, which was surrounded by brick built pucca wall on monthly rent of Rs. 2000/-;

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c. the Deed of Lease will be of a fixed period of 15 years from 01.11.1996 to 31.10.2011, which indicates that Defendant was tenant in the suit premises till 31.10.2011;

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d. it was not denied by the defendant that suit premise was not sold by Bhagwati Prasad Parsuramka to plaintiff vide registered Deed of Sale being Sale Deed No. 428/2008;

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e. D.W.3 also admitted that the suit premise was transferred in favour of the plaintiff.

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f. Defendant (D.W.2) has admitted in his deposition that on 17.10.2008 Bhagwati Prasad Parsuramka had informed him regarding the transfer of land and building in favour of plaintiff. Defendant has admitted his signature on notice given by Bhagwati Prasad Parsuramka regarding transfer of suit premises in favour of plaintiff, which has been marked as Ext. 5.

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21. After recording the aforesaid admitted facts, the learned first appellate court held as under: -

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“The admission of defendant regarding information of transfer of suit premise given by original owner Bhagwati Prasad Parsuramka in favour of plaintiff itself shows that defendant/appellant had got knowledge on 17.10.2008 regarding the transfer of suit land in favour of plaintiff and this fact supports the case of plaintiff. Further the plaintiff/respondent has also proved by his oral and documentary evidence that the suit premise was transferred in favour of plaintiff by the original owner Sri Bhagwati Prasad Parsuramka through Registered Deed of Sale (Ext. 6). So far the contention of learned counsel for appellant is that the defendant was inducted as tenant in the suit premises in total area of 34 decimals as per lease deed but the plaintiff has purchased total area of 21.95 decimals. In this regard, on perusal of Registered Sale Deed (Ext. 6), it is apparent that plaintiff has purchased the land of area 21.95 decimals along with old structure as described in schedule of Ext. 6 and he has acquired the right, title and interest over the said area along with old structure, which has been shown as suit premise for which the plaintiff is entitled for.

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It further appears that the plaintiff has also proved that the original owner of suit premise informed to defendant on 17.10.2008 through Ext. 2 regarding the transfer of suit premise with request to pay the rent to the plaintiff and Ext. 5 which is the admitted signature of defendant Binay Kumar Dokania on notice dated 17.10.2008 itself shows that defendant had full knowledge of the content of that letter, which has been admitted by Defendant himself in his testimony. The plaintiff/respondent has also proved that after acquiring the right and interest of suit premises by way of

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registered sale deed, a legal notice was issued to defendant/appellant Binay Dokania on 22.10.2011 for vacation of the suit premises as the defendant defaulted in payment of rent since 01.11.2010 till October, 2011. The said notice has been proved as Ext. 4. The appellant has contended that he issued notice for renewal of lease to original owner Bhagwati Prasad Parsuramka on 21.08.2011, which was not received by him and subsequently in response to the notice (Ext.4) of plaintiff, a reply notice dated 08.11.2011 (Ext. A/3) was sent by him to plaintiff for extension of lease as per Clause 11 of Lease Deed but no reply was given by plaintiff. It appears that defendant/appellant has admitted in his testimony that on 17.10.2008, he was informed by original owner Bhagwati Prasad Parsuramka regarding transfer of suit premises in favour of plaintiff but initially he did not send any request letter to the plaintiff for extension of lease of suit premise rather he has admitted that he has not paid any amount of rent after expiry of the lease. Further it appears that the defendant/appellant by issuing reply letter (Ext. A/3) clearly admitted the plaintiff, as landlord. Thus, all these documents including the oral as well as documentary evidences, clearly show that plaintiff Decorum Nirman Pvt. Ltd. represented through Sri Shib Kumar Parsuramka had acquired all the rights and interest in the suit property, which has been transferred to plaintiff through registered Sale Deed dated 17.07.2008 (Ext. 6) and the plaintiff had stepped into the shoes and possessed all the right in the suit premise which the transferrer had. It is settled by the Hon'ble Apex Court in AIR 2015 SC 2459 that "after the transfer of lessor's right in favour of the transferee, the letter gets all the rights and liabilities of the lessor in respect of the subsisting tenancy and attornment by the tenant is not necessary to confer validity of the transfer of the landlord's right." Thus, it is clear to mention here that where the landlord transfers his interest, an attornment by the tenant in favour of transferree is not necessary to create a relationship of landlord and tenant. Here in this case, the transfer of suit premises through sale deed (Ext. 6) by the original owner in favour of plaintiff has not been denied and the plaintiff/respondent acquired the suit premises as mentioned in the schedule of registered sale deed dated 17.07.2008 and thereafter, the plaintiff has admitted that

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he used to receive the monthly rent from defendant and in this regard he has proved the A/c book as Ext. 3 by which plaintiff has admitted that he received rent from October, 2008 to October, 2010 and the plaintiff has further proved that after October, 2010, the defendant did not pay any rent, which the defendant has admitted in his deposition. Thus, in view of evidences, it is crystal clear that there is relationship of landlord and tenant between the plaintiff and defendant and on perusal of impugned judgment, it appears that learned lower court has rightly come to the conclusion in holding that there is relationship of landlord and tenant between the parties and learned lower court has rightly discussed and decided the issue in favour of plaintiff.”

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22. While deciding the issue raised through Point of determination nos. B and C, it has been held as under: -

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“…….. In view of the evidences, it is clear that plaintiff has purchased the suit premises through registered sale deed (Ext. 6) and the plaintiff represented through Shib Kumar Parsuramka has pleaded that the suit premise is necessary for the business purpose and defendant/appellant has not been able to properly

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rebut the bonafide need of plaintiff and in spite of notice to defendant/appellant, he did not vacate the same but since the plaintiff is in bonafide need of the suit premise for running the business for its own, hence, the defendant is liable to be evicted from the suit premises to the portion as described in the registered sale deed of plaintiff/respondent, for which the plaintiff is entitled for.

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13. On perusal of pleading and entire evidences, it also transpires that defendant/appellant has admitted that he was inducted as tenant in the suit premises by the original land owner and he has also admitted that the transferee of the suit premises had issued notice, which was replied by him. The plaintiff has proved by its oral as well as documentary evidences that defendant has deposited rent from October, 2008 to October, 2010 and he has proved his A/c Slip, which has been marked as Ext. 3. He has further claimed that defendant has stopped payment of rent since 01.11.2010 and when he did not pay rent till 22.10.2011, he issued legal notice

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through his advocate for vacating the land, which has been marked as Ext. 4. Although the defendant has stated that he tendered rent for some months to the original owner of suit premise of Sri Bhagwati Prasad Parsuramka, but it is apparent from Ext. 2 and Ext 5 as well as from the admission of defendant in his testimony that he had knowledge of transfer of suit premises in favour of plaintiff by the original owner Bhagwati Prasad Parsuramka and further he has admitted that suit premises was transferred in favour of plaintiff and plaintiff issued legal notice and he accepted him as landlord and he has also admitted that he stopped payment of rent after expiry of lease. Thus, it appears that knowing very well the fact that plaintiff is the transferee by virtue of registered sale deed executed by the land owner Sri Bhagwati Prasad Parsuramka, he refused the pay the monthly rent to the plaintiff and when the monthly rent was not paid to plaintiff from 01.11.2010 till October, 2011, the instant Eviction Suit filed by plaintiff on the ground of default in payment of rent also. All these facts have been proved by the plaintiff by adducing the evidences. The denial of payment of rent by defendant/appellant to plaintiff itself make the defendant defaulter and learned lower court has rightly come to the conclusion that plaintiff/respondent is entitled to receive the arrear of rent as claimed by plaintiff and is also entitled to receive the rent at the rate of Rs. 2000/- per month till eviction. ………………………….. Thus, in view of aforesaid discussion and ongoing through the pleadings and evidences of the parties, I am of the considered view that the plaintiff has fully proved the fact that there is relationship of landlord and tenant between the parties and the plaintiff has personal necessity of the suit premise as per the property described in the Sale Deed and has also proved that defendant/appellant has been defaulter in payment of rent, which had not been disproved by the defendant/appellant by any material in the instant case.

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14. Thus, considering the entire materials available on record I find that learned lower court has considered all the evidence and has rightly decreed the suit of plaintiff directing the defendant to vacate the suit premises as per the property described in the Sale Deed of plaintiff (Ext.6) along with arrear of rent.”

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Substantial question of law nos.1 and 4

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23. These two substantial questions are taken up together. The substantial question no.1 relates to introduction of the sale deed (Exhibit6) as additional document on the date of the judgement and substantial question no.4 is with regard to the contents of the Exhibit-6. In case, it is held that Exhibit - 6 was wrongly introduced, the same will have to be excluded from the records and in such a case its contents also cannot be looked into. Thus, if substantial question no.1 is decided in favour of the appellant, the substantial question no.4 would become redundant as Exhibit-6 will have to be excluded for all purposes. However, the appellate court has referred to the description of property in the sale deed and compared it with the suit premises and decided the same in favour of the respondent by observing that the area mentioned in the sale deed was in addition to the shed area.

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24. The records of the eviction suit reveal that on 19.05.2017, the plaintiff had completed their arguments, and the matter was posted on 29.05.2017 for arguments of the defendant. On 29.05.2017, the arguments were concluded and it was directed to be posted for judgement on 14.06.2017 and it was also mentioned that the parties could file their written arguments. However, on 13.06.2017, a petition was moved by the plaintiff under Order VII Rule 14 (3) read with section 151 CPC, annexing the registered sale deed no.428 of 2008, and the defendant was asked to respond to the petition. The matter was taken up on the pre-fixed date i.e. 14.06.2017, and the plaintiff pressed the application filed under Order VII Rule 14 (3) read with Section 151 of CPC, to which leave was granted and the registered sale deed no.428 of 2008 was marked as Exhibit – 6 by stating that the registered sale deed was a public document and the objection of the defendant to the petition was rejected and on 14.06.2017 itself which was the day on which the judgement was also pronounced and was said to have been kept in the record running into 16 pages.

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25. The plaint of the case reveals that the plaintiff claimed in paragraph 6 of the plaint that the original lessor and owner Sri Bhagwati Prasad Parsuramka sold the lease hold properly to the plaintiff by registered deed of sale bearing no.428 of 2008 and then the plaintiff became the owner of the suit property. However, the said registered sale deed was not enclosed with the plaint.

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Order VII Rule 14 reads as follows:

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14. Production of document on which plaintiff sues or relies.—(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

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(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

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[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.]

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(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory.

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Order XIII Rule 1 is quoted as under:

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(1) Original documents to be produced at or before the settlement of issues. — (1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.

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(2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

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(3) Nothing in sub-rule (1) shall apply to documents— (a) produced for the cross-examination of the witnesses of the other party; or (b) handed over to a witness merely to refresh his memory.

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26. Upon perusal of the aforesaid provisions, it is clear that when a plaintiff sues upon a document or relies upon a document in his possession or power to support his claim, then he is required to enter such document in a list and is required to be produced in the court when the plaint is presented by him. It also provides that whenever such document is not in possession or power of the plaintiff, he shall state in whose possession or power it is. However, order VII Rule 14(3) provides that a document which ought to be produced in court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly shall not without the leave of the court be received in evidence on his behalf at the hearing of the suit. Rule 14(3) is an exception permitting the introduction of additional documents with the leave of the court but non-compliance of Rule 14(1) does not automatically invalidate the proceedings and therefore, the court has to see while granting leave to file document at later stage as to whether the document is disputed or the document introduces a new cause of action and as to whether the defendant had ample opportunity to address any objection to the document and its relevance in the suit. The discretion of the court to grant leave to file document under Rule 14(3) has to be exercised judiciously and the court should ensure that such additional document must not prejudice the other party and the court has to ensure a fair trial and facilitating justice. Additional document under Rule 14(3) can be admitted only when its nonproduction along with the plaint is explained by the plaintiff and such explanation is accepted by the court and/or the court is satisfied that the document is necessary to decide the real dispute between the parties.

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27. So far as the present case is concerned, there is no doubt that the case of the plaintiff was based on the plea that the plaintiff had purchased the suit property from the original landlord of the defendant and the plaintiff claimed to be the landlord after purchase. Admittedly, the sale deed was not filed with the plaint and the certified copy of the sale deed

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was sought to be introduced as additional document after conclusion of arguments and the petition seeking introduction of the certified copy of the registered sale deed was filed just one day prior to the judgement and was allowed on the date of the judgement by stating that it was a public document. The order simply says that the sale deed is a public document and hence introduction of the sale deed as additional document was allowed. The order does not reveal as to why such last-minute introduction of the additional document was necessary for deciding the case or to facilitate justice particularly when the sale of the property through the sale deed was an admitted fact even from the side of the defendant in the written statement.

¶110

28. This Court is of the considered view that merely because the sale deed was registered and in view of the trial court, it was a public document, the same was not enough to allow its introduction as additional document on the date of the judgement without citing any further reason to exercise such a discretion. In view of the aforesaid discussions regarding the manner and the stage, the additional document was introduced on the date of the judgement, this Court is of the considered view that such introduction of additional document cannot be sustained in the eyes of law. Accordingly, the 1^st substantial question of law is answered in favour of the appellant and against the respondent and it is held that the certified copy of the registered sale deed No. 428 of 2008 dated 17.07.2008 could not have been exhibited on the date of the judgment merely by stating that it was a public document without citing any further reason to exercise such a discretion that too on the date of the judgement.

¶111

29. Having held as aforesaid with respect to the substantial question no.1, the matter has to be examined considering the consequences of excluding Exhibit 6 i.e. registered sale deed no.428 of 2008 dated 17.07.2008.

¶112

17

¶113

30. From perusal of the entire written statement, this Court finds that execution of the registered deed of sale in connection with the suit property by the original landlord in favour of the plaintiff is not in dispute but the defendant had the objection that the lease was yet to expire in the year 2011 and the defendant had the right of renewal of the lease, and therefore, it was asserted that the suit property could not have been sold to the plaintiff. It was also asserted that the defendant never paid rent to the plaintiff and the rent was being paid to the original landlord, who at times use to accept and at times use to refuse the same. Thus, neither the execution of the sale deed in connection with the suit property nor the area/boundaries of the suit property was in dispute from the side of the defendant and consequently non-production of certified copy of the sale deed is not fatal to case of the plaintiff. Since, the certified copy of the sale deed produced on the date of the judgement has to be excluded, the description of the property mentioned in the sale deed is also required to be excluded. However, the learned appellate court has dealt with the contention of the appellant that the defendant was inducted as tenant in the suit premises in total area of 34 decimals as per lease deed but the plaintiff has purchased total area of 21.95 decimals and held that on perusal of Registered Sale Deed (Ext. 6), it was apparent that plaintiff has purchased the land of area 21.95 decimals along with old structure as described in schedule of Ext. 6 and had acquired the right, title and interest over the said area along with old structure, which has been shown as suit premise for which the plaintiff is entitled for.

¶114

31. This Court is of the considered view that since the sale deed (Exhibit-6) has to be excluded from the evidence, the area mentioned in the sale deed also becomes irrelevant and the fact remains that the purchase of the suit premises by the plaintiff and the description of suit premises/tenanted premises having not been disputed in the written statement, the dispute with regard to area which has been raised by referring to the description in the property in the sale deed, does not

¶115

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¶116

survive any more in absence of Exhibit - 6. There being no such dispute in the written statement of the defendant with regard to the area of the tenanted property, the area/description of property in the sale deed has no bearing in this case as the reference to the sale deed (Exhibit-6) has to be excluded. It is just to put on record that even if sale deed (Exhibit-6) were to be taken into consideration such plea has been rejected by the learned appellate court as discussed above.

¶117

32. As a cumulative effect of the aforesaid findings and considering the plaint and the written statement where no dispute was raised with respect to the area of the tenanted premises and also the findings with regard to substantial question no. (1) by which the sale deed (Exhibit-6) is to be excluded, the substantial question no. 4 is answered against the appellant and in favour of the respondent.

¶118

Substantial question nos.2 and 3

¶119

33. So far as the substantial question nos.2 and 3 are concerned, upon perusal of the plaint and written statement, this Court finds that the plaintiff has duly disclosed about the factum of purchase of the property by the aforesaid registered sale deed in paragraph 6 which is quoted as under:

¶120

“(6) That the original Lessor and Owner, Sri Bhagwati Prasad Parsuramka sold the said Lease Hold Property to the Plaintiff by Registered Deed of Sale bearing No 428 of 2008, dated 17/07/2008 of Jamtara Sub Registry Office and since then, the plaintiff became the Owner of the suit properties.”

¶121

34. The written statement reveals that the fact of purchase of the suit property by the plaintiff is not in dispute from the side of the defendant. However, a stand was taken by the defendant in paragraph 5 of the written statement that there was an oral agreement between the defendant and the original landlord in or about June 2008 when the landlord expressed his willingness to sell the suit property and it was agreed that as and when the landlord would sell the property, he would give preference to the defendant for purchasing the same provided both agree on a price. Thus, admittedly no deal was finalized between the ex-landlord and the

¶122

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¶123

defendant with regard to the sale-purchase of the suit property. The defendant has further taken a stand in paragraph 8 of the written statement that the lease in favour of the defendant was yet to expire on 31.11.2011 and the defendant asserted his claim for renewal and asserted that the property could not have been sold to the plaintiff during the subsistence of the lease as there was a condition of renewal attached to the lease deed. It was also asserted by the defendant that the defendant never paid rent to the plaintiff and never recognized the plaintiff as landlord to the suit property and the defendant all along paid the rent to the original landlord and when he refused to accept the rent at the instant of the plaintiff, the rent was being sent to him through postal money order and sometimes the original landlord used to accept the said rent and sometimes refuse to accept and the defendant took a stand he never paid rent to the plaintiff. 35. The learned court has held by appreciating the materials on record that Defendant (D.W.2) has admitted in his deposition that on 17.10.2008 Bhagwati Prasad Parsuramka, had informed him regarding the transfer of land and building in favour of plaintiff. Defendant has admitted his signature on notice given by Bhagwati Prasad Parsuramka, regarding transfer of suit premises in favour of plaintiff, which has been marked as Ext. 5. The plaintiff/respondent has also proved that after acquiring the right and interest of suit premises by way of registered sale deed, a legal notice was issued to defendant/appellant Binay Dokania on 22.10.2011 for vacation of the suit premises as the defendant defaulted in payment of rent since 01.11.2010 till October, 2011. The appellant has contended that he issued notice for renewal of lease to original owner Bhagwati Prasad Parsuramka on 21.08.2011, which was not received by him and subsequently in response to the notice (Ext.4) of plaintiff, a reply notice dated 08.11.2011 (Ext. A/3) was sent by him to plaintiff for extension of lease as per Clause 11 of Lease Deed but no reply was given by plaintiff. The plaintiff has admitted that he used to receive the monthly rent from defendant and in this regard, he has proved the A/c book as Ext. 3 by

¶124

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¶125

which plaintiff has admitted that he received rent from October, 2008 to October, 2010 and the plaintiff has further proved that after October, 2010, the defendant did not pay any rent, which the defendant has admitted in his deposition. Thus, in view of evidences, it is crystal clear that there is relationship of landlord and tenant between the plaintiff and defendant. Thus, there is a clear finding of fact that the defendant was informed that the suit property has been sold to the plaintiff and he has to pay the rent to the plaintiff and the defendant had also paid rent to the plaintiff for a few months and then defaulted and continued to default and in the meantime, the lease period has also expired. The learned court have also recorded a finding of personal necessity in favour of the respondent. The learned courts have recorded concurrent findings that the default in payment of rent was from 2010, and therefore, it has come on record that the defendant had acknowledged the plaintiff as landlord and had also paid rent for some time but subsequently discontinued to pay the rent. 36. The fact remains that the defendant was informed about the fact that the plaintiff had purchased the suit property from the original landlord, and consequently, the plaintiff enters into the shoes of the original landlord, and the defendant was duly bound to pay rent to the plaintiff, but having not been paid so, the courts have found the defendant as a defaulter. The fact also remains that the period of lease has expired and no application for renewal of lease was furnished by the defendant before the plaintiff.

¶126

37. Consequently, this Court is of the considered view that the pleadings of the respective parties and the materials placed on record were sufficient to conclude that the plaintiff had acquired the suit property by virtue of registered sale deed no.428 of 2008 dated 17.07.2008 and had accordingly acquired the status of landlord of the defendant. This Court is also of the view that there is no legal bar in sale of property which is under tenancy and during the subsistence of lease and the defendant having known about the execution of sale deed, never challenged the

¶127

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¶128

same. Thus, the learned court recorded findings of landlord tenant relationship between the parties on the basis of materials on record and have taken into consideration the admitted position that the suit property was sold by the original landlord in favour of the plaintiff.

¶129

38. Section 109 of the Transfer of Property Act, 1882 reads as under:

¶130

109. Rights of lessor's transferee.—If the lessor transfer the property leased, any part thereof, or any part of his interest therein, the transderee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessess so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, ny reason only of such transfer cease to be subject to any of the liabilities imposed him by the lease, unless the lessee elects to treat the transferre as the person liable to him:

¶131

Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

¶132

The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.”

¶133

39. Section 109 of the Transfer of Property Act contemplates that when right, title and interest in immovable property stand transferred by operation of law, the successor in interest would be entitled to the rights of the predecessor. No material has been shown by the learned counsel for the appellant that there was any contract to the contrary to disentitle the respondent -plaintiff to seek eviction from the tenanted property. 40. The appellant in the present case is challenging the derivative of the title of the plaintiff and not the title of the original landlord. However, such a plea is not acceptable in view of Section 109 as the respondent plaintiff, being the subsequent owner, will derive the title of the original

¶134

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¶135

owner/landlord and will step into the shoes of the original owner/landlord. Hence, the challenge as regards the derivative title of original owner/landlord is of no consequence in the given background of this case. Section 109 would apply in support of the respondent-plaintiff to seek eviction of the defendant from the suit property on account of default in payment of rent and expiry of the lease period. In terms of Section 109 of the Transfer of Property Act, it is clear that attornment by the appellant - defendant -tenant is not necessary for the transfer of property leased out to the defendant by the original owner/landlord. As such, the appellant - defendant -tenant became a tenant under the plaintiff by operation of law under Section 109 of the Transfer of Property Act. The Hon'ble Apex Court in the case of Gopi @ Govardhannath, Dead By LRs. v. Ballabh Vyas reported in 2022 SCC OnLine SC 1279 , held that attornment by lessee is not necessary for transfer of property leased out to him under Section 109 of the Transfer of Property Act, 1882. The Hon’ble Court has held as under:

¶136

“29. In the light of the finding on the issue whether the respondents in R.C. No. 262 of 2008 were malafidely denying the title of the petitioner therein over the petition schedule property, S. 109 of the Transfer of Property Act would assume relevance in regard to the right of the petitioner in R.C. No. 262 of 2008 to seek eviction of the respondents therein, from the petition schedule property. Admittedly, the predecessor-in-interest of the appellants viz., late Shri Balraj, was the tenant in respect of the petition schedule property under its original owner Smt Phool Kumari. A bare perusal of S. 109 of the Transfer of Property Act would reveal that if a landlord transfers the property leased out or any part of it, the transferee, in the absence of any contract to the contrary, shall possess all the rights of the landlord. Hence, the impact of Ext. P3, in the absence of any contract to the contrary, is that the respondent herein has stepped into the shoes of Smt Phool Kumari. In terms of S. 109 of the Transfer of Property Act it is clear that attornment by the lessee is not necessary for the transfer of the property leased out to him. Thus, the inevitable consequence of transfer of a leased-out in accordance with law to a third party, in the absence of a contract to the contrary, is that the third party concerned would not only become its owner having title but also would step into the shoes of the vendor as the landlord in relation to the lease holder at the relevant point of time. In such

¶137

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circumstances, the findings of the courts below that there exits jural relationship of landlord and tenant between the respondent and the appellants can only be held as the correct and lawful conclusion in the light of the evidence on record based on the legal position.”

¶139

41. Accordingly, both the substantial question nos.2 and 3 are answered against the appellant (tenant) and in favour of the respondent (landlord). This Court is of the considered view that the learned courts have rightly concluded on the basis of the aforesaid sale deed that the plaintiff is the landlord of the defendant and in view of the sale deed, the plaintiff can claim that he has become landlord of the property.

¶140

42. The fact remains that finding of default in payment of rent and also the expiry of lease period is not under challenge.

¶141

43. Substantial Question of law No. 1 is answered in favour of the appellant and against the respondent, while Substantial Questions No.2 to 4 are answered in favour of the respondent and against the appellant. Considering the aforesaid discussions in the light of the facts and circumstances of this case and in spite of Substantial Question of law No. 1 having been decided in favour of the appellant, this second appeal stands dismissed. Consequently, the decree passed by the learned trial court and affirmed by the learned appellate court does not call for any interference.

¶142

44. Pending interlocutory application, if any, is dismissed as not pressed.

¶143

(Anubha Rawat Choudhary, J.)

¶144

Saurav/

¶145

24

Binoy Dokania v. Decorum Nirman Pvt. Ltd. through Mr Shib Kumar Parsuramka

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Binoy Dokania v. Decorum Nirman Pvt. Ltd. through Mr Shib Kumar Parsuramka

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