Mohan Sao Vs Ajay Kumar

2025: JHHC: 17549

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 291 of 2018

Mohan Sao, son of Laxman Sao, aged about 73 years, Proprietor of Mohan Snacks, resident of Mahavir Chowk, Chas, P.O. & P.S.- Chas, District- Bokaro … … Defendant/Appellant/Appellant

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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. 1-306, B.S. City, P.O. & P.S.- Bokaro, District Bokaro

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… … Plaintiff/Respondent (1^st Set)/Respondent

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Satya Narayan Sao, son of Laxman Sao, resident of Mohan Snacks, Mahavir Chowk, Chas, P.O. & P.S.- Chas, District- Bokaro

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… … Defendant/Respondent (2^nd Set)/Respondent

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. Vibhor Mayank, Advocate For the Respondents : ---

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10/2^nd July 2025

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1. Heard the learned counsel appearing for the appellant.

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2. This Second Appeal has been preferred against the Judgment dated 04.01.2018 (decree signed on 16.01.2018) passed by the learned Principal District Judge, Bokaro in Civil Appeal No.24 of 2017, whereby the appeal has been dismissed upholding the Judgment dated 31.05.2017 (Decree signed on 12.06.2017) passed by the learned Additional Munsif, Bokaro in Title Eviction Suit No.10 of 2007. The learned trial court had decreed the suit in favour of the plaintiff and had directed the defendants to pay the monthly rent which they defaulted to the plaintiff from march, 2007 till date @ Rs.400 per month and to vacate the suit property. The appellant was the Defendant No.2 before the learned trial court.

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3. The plaintiff/respondent (1^st Set) had filed Title Eviction Suit No.10 of 2007 in the court of the learned Additional Munsif, Bokaro with a prayer for a decree in favour of the plaintiff and against the defendants for eviction of the defendants from the Schedule-B tenanted premises on the ground of default in payment of rent and subletting and also for directing the defendants to deliver vacant possession of the suit premises to the

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plaintiff. A prayer was also made for recovery of eight (8) months’ arrears of monthly rent from March, 2007 to October, 2007; cost of the suit and other reliefs.

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4. The case of the plaintiff is that the plaintiff is the rightful owner of two shop rooms standing over 1½ decimals of land of Mouza- Chas, Khata No.503, Plot No.5299/7919 having purchased from Sri Balram Sharma and others vide registered Sale-Deed No.1904 dated 28.03.2007. Balram Sharma had inducted the Defendant No.1 as a tenant on payment of monthly rent of Rs.300/- payable on 10th day of each succeeding English Calendar month beside the electricity charges by virtue of the Tenancy Agreement dated 01.09.1992. The said monthly rent was later on enhanced to Rs.400/- per month. The Defendant No.1 instead of doing his own business handed over the premises to his brother Defendant No.2 (Appellant) violating the terms and conditions of the Tenancy Agreement dated 01.09.1992 without consent of his landlord wherein Defendant No.2 has been running his own business in the name of style of Mohan Snacks. Balram Sharma alongwith other co-sharers, after execution of registered sale deed on 28.03.2007 in favour of the plaintiff, informed the defendants about sale of the tenanted premises to the plaintiff and asked them to pay monthly rent to the plaintiff from the month of March, 2007 @ Rs.400/per month. Balram Sharma received rent @ Rs.400/- per month from the defendants till February, 2007 and thereafter, he stopped receiving monthly rent from the defendants. However, the defendants did not pay any rent to the plaintiff. When inspite of giving due information, the defendants did not pay monthly rent to the plaintiff, the plaintiff and Balram Sharma served a joint written letter to the Defendant No.1 vide registered post letter dated 05/07.06.2007 calling him to pay monthly rent of the tenanted premises under occupation @ Rs.400/- per month excluding the electricity charges from the month of March, 2007 to his new landlord furnishing the detail address of the plaintiff, but the defendants did not pay the monthly rent of any month to the plaintiff.

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5. Thereafter, the plaintiff and his representative visited the tenanted premises on 3-4 occasions and asked the Defendant No.2 and other persons available there and lastly, on 02.09.2007, they requested for payment of monthly rent of the tenanted premises on and from march @ Rs.400/- per month which was enhanced from Rs.300/-, but the defendants instead of paying the monthly rent to the plaintiff or his representative told them that he will think about the payment of rent to the plaintiff and will informed accordingly.

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6. The plaintiff further stated that the defendants-tenants are defaulter in making payment of monthly rent from March, 2007 @ Rs.400/- per month excluding electricity charges to the plaintiff inspite of giving due information of the sale of the tenanted premises in occupation of the defendants and demanding payment of monthly rent to the plaintiff thereafter in writing by registered post letter jointly by the plaintiff and his vendor namely, Balram Sharma. He further stated that the Defendant No.1 has also violated the terms and conditions of the tenancy by sub-letting the tenanted premises to his brother Defendant No.2 without consent and permission of the plaintiff and as such, the defendants are liable to be evicted from the tenanted premises and the defendants are also legally bound to pay eight months rent amounting to Rs.3,200/- as outstanding balance to the plaintiff.

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7. The plaintiff stated that the cause of action for the suit arose on 01.06.2007 when the defendants did not pay two months’ rent to the plaintiffs within the time fixed by the agreement and is continuing day to day basis within the jurisdiction of the learned trial court.

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8. On receiving notice, the defendants filed their written statement opposing the suit . However, they admitted that Defendant No.1 was earlier a tenant under the father of Balram Sharma namely, Bishwanath Sharma and after his death under Balram Sharma on a monthly rent of initially @ Rs.251/- per month, which was enhanced from time to time and lastly @ Rs.400/- per month. He denied that the defendants were still

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tenant under Balram Sharma when he executed an agreement to sale on 11.05.1992 in favour of the Defendant No.1 in which it was agreed that the cost of construction borne by the Defendant No.1 shall be treated as advance full and final consideration amount of one pucca shop room. It was further agreed that if Balram Sharma wanted to sell shop room, he will be bound to transfer the same to the Defendant No.1. They further stated that the Defendant No.1 had already paid a sum of Rs.42,150/- for construction of shop room and the same will be treated as advance full and final consideration amount of the sale deed. They further stated that the Defendant No.1 alongwith Om Prakash Gupta has already filed Title Suit No.28 of 2007 for Specific Performance of Contract of Sale against Balram Sharma. The relationship of landlord and tenant between the defendants and Balram Sharma has ceased to exist and the jural relationship between them changed from landlord and tenant to vendor and purchaser with effect from 11.05.1992 and since then, the Defendant No.1 has occupied the suit premises as an agreement purchaser and not as a tenant and hence, the defendants are no longer his tenants in the suit property.

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9. On the basis of the rival pleadings of the parties, the learned trial court framed the following 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 subletting / breach of condition of the tenancy against the defendant from the tenanted premises?

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9a. Whether the defendants are liable to be evicted from the suit property on ground of default of rent from March, 2007 to October, 2007?

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

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11. Is the plaintiff entitled for any other relief or reliefs?

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10. In course of trial, the plaintiff altogether examined four witnesses. PW-1 is Ajay Kumar who is the plaintiff himself, PW-2 is Amit Agarwal. PW-3 is Rajesh Kumar and PW-4 is Pradeep Kumar Singh. The plaintiff exhibited the Original Sale deed No.1904 dated 28.03.2007 as Exhibit-1, map attached with sale deed as Khata No.503, Plot No.5299/7919 as Exhibit-1/a, rent agreement dated 16.06.2007 as Exhibit-2, rent information dated 05.06.2007 as Exhibit-3, speed post receipt dated 07.06.2007 as Exhibit-4 and identified the photo copy of agreement dated 01.09.1992 as Mark-X.

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11. The defendants examined seven witnesses in his defence. DW-1 is Sekh Abdula, DW-2 is Satyanarayan Modak, DW-3 is Mahesh Saw, DW4 is Badhyanath Modak, DW-5 is Ranjit Malakar, DW-6 is Jitendra Prasad and DW-7 is Mohan Saw who is the Defendant No.2 himself. The defendants did not adduce any documentary evidence.

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12. The learned trial court first took up Issue Nos.(4) and (7) together and after considering the evidence on 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

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provisions of the Jharkhand Building (Lease, Rent and Eviction) Control Act in filing the suit.

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13. With regard to Issue No. (9a), the learned trial court held that the plaintiff has proved that the defendants have defaulted in payment of the rent from March, 2007 to October, 2007 and so, the defendants are liable to be evicted from the suit property on this ground and decided the issue No.(9a) in favour of the plaintiff.

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14. With regard to Issue No.(9), the learned trial court recorded that the Defendant No.1 was not examined in the case and his brother the Defendant No.2 was examined as DW-7 and from his deposition, it is an admitted fact that he is running business in the name of Mohan Food in the suit premises since long and has license to run the shop for the same. He further admitted that the original agreement was made with the father of Balram Sharma. From the very beginning, the defendants have taken a plea that the suit premises was let out to the Defendant No.1 and it was never mentioned that it was being let out for family business or to his brother. It was clearly stated in the rent agreement that the premises will not be sublet. The other witnesses have also admitted that the shop is being run by Mohan Sao and he is not a signatory to the rent agreement in any of the documents that has been brought on record, nor he is a party to the Title Suit No.28/2007 filed by this brother Defendant No.1. The learned trial court held that the plaintiff has proved that the shop was sublet by the tenant-Defendant No.1 and decided the Issue No.(10) in favour of the plaintiff.

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15. With regard to Issue No. (1), (2) and (3), the learned trial court held that the defendants did not pay the rent from March, 2007 to the plaintiff and neither to the ex-landlord and hence, the plaintiff brought the suit on 28.11.2007 for eviction of the tenants on the ground of subletting the suit premises and default of payment of rent and the suit is filed well within the period of limitation. Accordingly, the learned trial court, decided the Issue No. (1), (2) and (3) in favour of the plaintiff.

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16. The learned trial court decided the Issue Nos. (5) and (6) against the defendants by recording that these issues have been pleaded by the defendants and the burden of proof was upon them to adduce evidence in support of their pleadings, which they have not done.

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17. With regard to issue No.(8), the learned trial court recorded that it cannot be decided as this issue has been pleaded by the defendants in the form of counter claim, but they have not paid a single court fee, nor ever brought up this issue to be treated as a counter claim on their behalf and hence, this court cannot decide this issue.

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18. With regard to issue No.(10), the learned trial court recorded that the defendants have admitted that they had paid upto the month of February, 2007 to the ex-landlord and they did not further pay the rent and after institution of the suit, they have been depositing the rent in court as directed. Hence, it is crystal clear that the tenants had defaulted in payment of rent from March, 2007 to October, 2007 and hence, the plaintiff is entitled for decree for recovery of monthly rent from March, 2007 till October, 2007 and decided the Issue No.(10) in favour of the plaintiff.

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19. Lastly, the learned trial court took up the Issue No.(11) and held that as the Issue Nos. 1, 2, 3, 4, 7, 9, 9a and 10 have been decided in favour of the plaintiff, the defendants are liable for eviction from the suit property and the plaintiff is also entitled for rent for 8 months amounting to Rs.3200 and also rents for the subsequent months till realization vacation of the suit property by the defendants. The learned trial court further held that as the monthly rent has been deposited in the court by the defendants, the plaintiff is at a liberty to withdraw the same after applying for the same as per rules.

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20. Accordingly, the learned trial court decreed the suit in favour of the plaintiff without any cost and directed the defendants to pay the monthly rent which they defaulted to the plaintiff from march, 2007 till date @ Rs.400 per month and to vacate the suit property. The learned trial court

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further observed that as the monthly rent was being deposited in the court, the plaintiff is at a liberty to withdraw the monthly rents deposited by the defendants in the court and which is due to them.

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21. The defendant filed the 1^st appeal. On the basis of the materials available on record and submissions, the learned first appellate court formulated the following 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 plaintiffrespondent is entitled?”

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22. The learned first appellate court made independent appreciation of the evidence available on record and took up the points for determination Nos.(I) and (II) together and arrived at the conclusion that the plaintiff has successfully proved that the tenants-defendants have defaulted in payment of rent of the suit premises from March, 2007 to October, 2007 and decided the points for Determination Nos.I and II against the defendants. The learned first appellate next took up the point for determination No.III and decided the same against the defendant and dismissed the appeal after upholding the judgment and decree passed by the learned trial court.

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23. The learned counsel for the appellant submitted that the plaintiff has purchased the property from the landlord of the appellant, but there was no attornment of tenancy and therefore, there is no relationship of landlord and tenant between the plaintiff and the defendants. It has been submitted that the learned courts committed grave error in holding that there was landlord and tenant relationship.

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24. It has been brought to the notice of this Court that Second Appeal No. 290 of 2018, involving almost the same issues with respect to the

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other shop premises, has been dismissed by this Court vide Judgment dated 14.11.2024. A copy of the judgment has been produced.

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25. In the present case, the undisputed fact remains that the defendants accepted that the vendor of the plaintiff was his landlord who has transferred the suit property to the plaintiff by way of a registered sale deed. The defendants though pleaded of having entered into an agreement for sale with the vendor of the plaintiff, but they have failed to establish the same by producing any cogent evidence. Section 109 of the Transfer of Property Act does not require that the transfer of the rights of landlord can take effect only in the tenant attorns to him and that attornment is not necessary to confer validity of the transfer of landlord’s rights. In this regards it would be relevant to refer to the judgment passed by the Hon’ble Supreme Court in the case of Ambica Prasad v. Mohd. Alam reported in (2015) 13 SCC 13, which is quoted as under: -

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“15. On the question of tenancy, both the trial court and the High Court have not considered the provision of Section 109 of the Transfer of Property Act.

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“ 109. Rights of lessor's transferee .—If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee 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, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:

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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.

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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 so 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.”

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From a perusal of the aforesaid section, it is manifest that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor (sic transferee) landlord would be proper and so also the suit for ejectment.”

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26. This Court is of the considered view that the learned trial court has not committed any illegality by holding the existence of the relationship of landlord and tenant between the plaintiff and the defendants and the argument of the learned counsel of the appellant with regards to the requirement of atornment by the tenant is well settled by the Hon’ble Supreme Court against the appellant vide the aforesaid judgment and thus no question of law , much less, any substantial question of law arises for consideration by this court. The point of subletting without permission of landlord has also been well proved. This Court further finds that the default in payment of the rent from March, 2007 to October, 2007 by the defendants has also been well proved by the plaintiff.

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27. Under such circumstances, this Court is of the considered view that there is absolutely no substantial question of law involved in this second appeal, which is hereby dismissed without any cost.

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28. Pending I.A., if any, is closed.

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29. Let a copy of this order be communicated to the concerned courts through “Fax-e-mail”.

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(Anubha Rawat Choudhary, J.)

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Mukul/Rakesh/-

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Mohan Sao v. Ajay Kumar

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Mohan Sao v. Ajay Kumar

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