Manju Tiwari v. Harprasad Rasgai — 1997 DIGILAW 272 (MP)

JUDGMENT 1. This appeal, filed under section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 1.5.1996 passed by the Iind Additional Judge to the Court of District Judge, Hoshangabad in Civil Appeal No. 52-A/95 arising out of the judgment and decree dated 16.2.1994 passed by the IInd Civil judge, Class-I, Hoshangabad in Civil Suit No. 39-A/88. 2. The relevant facts of this case are as follows. The appellant/plaintiff claimed that she purchased the suit premises by a registered sale-deed dated 1.11.1977 from the previous landlord of the respondent who was the owner of the suit house. The respondent was a tenant of the original landlord and paid rent at the rate of Rs. 20/- (Rupees Twenty) per month. He was in arrears of rent since 1982 and, therefore, a notice of demand dated 23.8.1993 was made. She claimed eviction of the respondent on the ground of section 12 (1) (a) of the M.P. Accommodation Control Act, 1961 (henceforth 'the Act'), for the reason, the respondent did not pay the arrears of rent within two months of service of notice of demand. The appellant further claimed that the requirement of the house was bona fide under section 12 (1) (e) of 'the Act'. The respondent denied that there was any relationship of landlord and tenant between the appellant and him. The respondent claimed that he was tenant of Hari Prasad Surele who was receiving rent from him. 3. Since, the respondent denied the title of the appellant, the appellant amended the plaint and claimed that denial of the title of the appellant amounted to nuisance within the meaning of section 12 (1) (c) of 'the Act' and for this reason also, the appellant was liable to be evicted. 4. After recording the evidence, the trial Court decreed the suit only on the ground under section 12 (1) (c) of 'the Act'. It was held by the trial Court that it was not proved that the respondent did not pay the arrears of rent within two months of service of notice of demand. 4. After recording the evidence, the trial Court decreed the suit only on the ground under section 12 (1) (c) of 'the Act'. It was held by the trial Court that it was not proved that the respondent did not pay the arrears of rent within two months of service of notice of demand. The trial Court did not grnat any decree under section 12 (1) (e) of 'the Act' because it felt that this ground could not be considered as available to the appellant in view of the admission made by the counsel for the appellant that the suit house was transferred to Narendra Kumar Agrawal by a registered sale-deed dated 11.12.1989, during the pendency of the suit. 5. The respondent filed an appeal against the judgment and decree of the trial Court. In appeal, a finding recorded by the trial Court to the effect that there was a relationship of the landlord and the tenant between the appellant and the respondent, was reversed and it was held that the appellant was not the landlord of the respondent though he was the owner of the suit property at that time. In doing so, the learned lower appellate Court held that the money-order receipts produced by the respondent did not bear the seal of the Post-Office. 6. In this appeal, learned counsel for the appellant argued that the lower appellate Court should not have reversed the decree passed under section 12 (1) (c) of 'the Act' by the trial Court. On the other hand, learned counsel for the respondent argued that in view of the admission of the appellant to the effect that during the pendency of the suit, the appellant has already transferred the suit house to Narendra Kumar Agrawal, the right to sue did not survive with the appellant and, therefore, the suit was rightly dismissed by the lower. appellate Court. 7. Learned counsel for the appellant in this case has relied upon the decision of Justice R.K. Vijayvargiya, J., reported in 1981 MPRCJ Note 100, in the case of Narayanlal v. Nandkishor and others, wherein it was held that even after a landlord transfers a suit property during the pendency of the suit, he can continue the suit on other ground except under section 12 (1) (f) of 'the Act'. It follows that from this decision that decision wiil also be available for the purpose of interpretation of section 12 (1) (e) of 'the Act'. Having read the judgment delivered by the learned single Judge, I find there is no reason given in this case for his conclusion except that the learned Judge says that the ground of personal requirement of the landlord would still survive with the transferring landlord. This decision appears to be per incuriam. The attention of learned Judge was not drawn to section 109 of the Transfer of Property Act. The section reads as under:- Sec. 109: "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: 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 lessee shall not be liable to pay such rent over again to the transferee. 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 property 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." 8. It is clear from that section that the consequence of transfer by lessor of leased premises is that the transferee gets all the rights in absence of the contract to the contrary. So, once the property was transferred by the appellant to Narendra Kumar Agrawal, it was he, who had all the rights of the lessor and it was he, who could evict the respondent and not the appellant. So, once the property was transferred by the appellant to Narendra Kumar Agrawal, it was he, who had all the rights of the lessor and it was he, who could evict the respondent and not the appellant. If Narendra Kumar Agrawal wanted to continue the suit, he could file an application under Order 22, Rule 10 of the Code of Civil Procedure. That was not done. The appellant lost his right to continue the suit, the moment he transferred the property in question. The appellant did not plead and prove that there was any contract to the contrary assigning him the right to continue the suit. In AIR 1981 SC 1113 (M.M. Quasim v. Manohar Lal Sharma and others) a some-what similar principle was stated. In this case although section 109 of the Transfer of Property Act has not been " specifically referred to, but the principle under lying it has been stated. In this case, the landlord, filing suit, had lost his title to the suit property by surrendering rights in partition to other co-owners. It was held that the landlord had no right to continue the suit. The following paragraph reported in AIR 1981 SC 1113 at page 1120 brings out the principle involved:- Para 17 : "Once this subsequent event of landlord's interest in the property getting extinguished as the property in"question is allotted as an exclusive owner to a sharer upon a partition amongst co-sharers, is properly evaluated, unless some proper explanation is offered by the landlords who are parties to the proceedings, the plaintiffs are liable to be non-suited. This does not require much of a discussion because plaintiffs sought possession for personal requirement of respondent 1 Manohar Lal Sharma. Manohar Lal Sharma wanted to start his clinic, as he is, a qualified medical practitioner, in the suit premises. Manohar Lal Sharma is neither an owner nor a co-owner nor he has any interest in the suit property since the date of partition effected by compromise between the co-sharers in suit No. 4/74. If action were to start today or a day after the decree for partition, could Manohar Lal Sharma ever file a suit for evicting the present appellant from the suit shop on the ground that he wanted to start his clinic in the suit shop? If action were to start today or a day after the decree for partition, could Manohar Lal Sharma ever file a suit for evicting the present appellant from the suit shop on the ground that he wanted to start his clinic in the suit shop? If Manohar Lal Sharma can bring such an action he can as well evict any tenant from any premises with which he has no connection. Even if at the commencement of the action Manohar Lal Sharma was a co-owner alongwith his brother and uncle and, therefore, he had a semblance of title to commence action for eviction, once the co-owner parted company, partitioned the property by metes and bounds and the suit property came to be allotted to Pyarelal as an exclusive owner, Manohar Lal Sharma cannot claim eviction of the tenant from such property in which he has no subsisting interest. And even if this event occurred subsequent to the passing of the decree by the trial Court, this subsequent event should have been noticed at the appellate stage because the appeal is nothing else but a continuation of the suit and in a proceeding under the Rent Act the relief has to be moulded according to the situation on the date of the decree; the decree would mean the decree which is final and not correctible by any judicial proceeding.' , 9. The attention of this Court was also brought to a decision rendered by the learned single Judge of this Court in the case of Haflz Mohammad v. Masoodhi, reported in 1990 JLJ 594 = 1991 MPLJ 161 . In this case, the learned Judge rightly pointed out that if there be an agreement to this effect, then the landlord, who has transferred the suit property could still continue the suit. This decision is based on the words used in section 109 of the Transfer of Property Act in absence of the contract to the contrary. In that case, there was an agreement to the effect that the landlord who had transferred the suit house shall continue the suit. This decision is based on the words used in section 109 of the Transfer of Property Act in absence of the contract to the contrary. In that case, there was an agreement to the effect that the landlord who had transferred the suit house shall continue the suit. The interpretation put-up on by the learned Judge in this case is in paragraph No.4 as follows :- Para 4 : "The above statutory consequences shall follow' 'in absence of a contract to the contrary." This means that it is open to the transferor-lessor and his transferee to agree to terms which may be inconsistent with the provisions of section 109 of the Transfer of Property Act. Since ordinarily, on transfer of the entire ownership of the property leased, the right to terminate the lease stans transferred to the transferee by force of section 109 of the Transfer of Property Act, in my opinion, it is open to the transferor and the trasnferee to agree that notwithstanding the transfer, the rights to terminate the lease and to enforce the right of reversion shall continue to vest in the lessor. Such a term shall be inconsistent with the provisions of section 109 of the Transfer of Property Act and, therefore, the expression' 'in the absence of a contract to the contrary" appearing in that section enables a transferor and the transferee of a property leased to agree to such a term. In such an event, it shall be permissible for the lessor despite such transfer of the property leased, to enforce the right of reversion by filing a suit against the tenant.' , Even from this case, it is clear that there must be a contract to the contrary. 10. Learned counsel for the appellants, however, argued that this point was not raised by the respondent before the lower appellate Court. Order 41, Rule 22 of the Code of Civil Procedure gives a respondent two distinct rights (1) of supporting the decree, and (2) of attacking the decree. It is well established that a respondent seeking to support the decree under appeal need not file cross-objection. He can support the decree appealed against, by raising grounds which was not considered in his favour by the Court below or even decided against him. It is well established that a respondent seeking to support the decree under appeal need not file cross-objection. He can support the decree appealed against, by raising grounds which was not considered in his favour by the Court below or even decided against him. On the other hand, he must file a cross-objection if he wants to attack the decree in order to get it further modified in his favour. Even otherwise, this Court has ample powers under Order 41, Rule 33 of the Code of Civil Procedure to do justice between the parties. 11. The learned counsel for the appellant expressed the fear, that since this Court is confirming the judgment and decree of lower appeal Court, the judgment of the lower appeal Court to the effect that there was no relationship of landlord and tenant between the appellant and the respondent shall be res judicata. This fear on the part of counsel for the appellant is unfounded. This Court has confirmed judgment and decree of trial Court on a ground altogether different point than that impelled the lower appeal Court to dismiss the suit in favour of the respondent. This Court has not given any finding whether the appeal Court was right in holding that there was no relationship of landlord and tenant. Therefore, the judgment of lower appeal Court cannot be res judicata. The judgment delivered in this appeal only may operate as res judicata. It is however, made clear that the purchaser from the appellant shall not be bound by judgment of lower appeal Court and any finding recorded against the appellant shall not be binding on the purchaser. This appeal is being dismissed on the ground that the appellant had no right to continue the suit after execution of sale-deed dated 11.12.1989, in favour of Narendra Kumar Agrawal. 12. In view of the matters aforesaid, there is no merit in this appeal. The appeal is, therefore, dismissed. No costs.