HINDUSTHAN GENERAL TRADING CO PVT LTD v. MOHINI M. MOORJANI
1998-09-02
PRABIR KUMAR SAMANTA, RIPUSUDAN DAYAL
body1998
DigiLaw.ai
P. K. SAMANTA, J. ( 1 ) THE plaintiff/respondent filed ejectment suit No. 785 of 1985 for eviction of the defendant/appellant from the suit premises on the ground of reasonable requirement. The suit flat being No. 115 on the 11th floor of Ambassader Apartment at 61a, Park Street at Calcutta with the benefits of user of a servants's room and a parking space for one car was let out to the defendent/appellant at a monthly rental of Rs. 1,450/- only payable according to english calender month. According to the plaintiff, she and her husband are residing at 41, Salimar Apartment, 3 CJ, Desuja Road, Bangalore and she is not in possession of any reasonable suitable accommodation. Her husband was a Central Government employee and held the post of Chairman, Meat and Fishing Department of Central Food Techonology Research Institution, Government of India, Mysore. Plaintiff's husband retired on 1st January, 1982. After retirement the plaintiff's husband was permitted to occupy government quarters till 31st January, 1983 and thereafter plaintiff and her husband have no reasonable suitable accommodation elsewhere. Plaintiff accordingly sent a notice dated 22. 12. 84 under section 13 (6) of the West Bengal Premises Tenancy Act, 1956 calling upon the defendant to quit and vacate the suit Premises on the expiry of the month of January, 1985. As the defendant did not vacate the suit premises the suit was filed on 30 the September, 1985. ( 2 ) THE defendant contested the suit by filing written statement denying all the material allegations of the plaintiff and inter alia contended that plaintiff is though the landlady of the defendant but is not the owner of this suit flat. Therefore the suit for eviction on the ground of reasonable requirement is liable to be dismissed. It was however pleaded that the plaintiff does not require the suit flat for her own use and occupation or for the occupation of her husband. Upon such pleadings of the parties issues were framed as to whether the notice of ejectment was legal, valid and sufficient and/or duly served upon the defendant, whether the plaintiff reasonably and bonafied requires the suit premises for her own use and occupation, whether the plaintiff is in possession of any other reasonably suitable accommodation and whether the plaintiff is entitled to a decree for Khas possession.
The learned trial court upon consideration of the evidences adduced by the parties and the material documents produced on their behalf held that the plaintiff is the owner of the suit flat, for the purpose of eviction of the defendant/appellant on the ground of reasonable requirement and therefore the suit as framed is maintainable as per the provisions of West Bengal Premises Tenancy Act, 1956 and further since it was found by the learned trial court that the plaintiff reasonably requires the suit premises for her own use and occupation and for the occupation of her family members, the suit was decreed for eviction of the defendant/appellant which has been challenged in this appeal. ( 3 ) THE main controversy in this appeal is whether the plaintiff/respondent is the owner of the suit flat for the purpose of section 13 (1) (ff) of the said Act to claim eviction of the defendant/appellant on the ground of reasonable requirement. Such controversy arose because evidently by an agreement dated 12. 2. 69 made between the Star Construction Co. and the plaintiff/respondent, the suit flat with the proportionate undivided share in the plot of land was agreed to be sold and transferred to the plaintiff/respondent free from all encumbrances subject to the terms and conditions mentioned therein at a consideration of Rs. 40,000/- while the same was conveyed to the plaintiff/respondent by a registered deed of conveyance (Ext. 3) dated 11/12th July, 1990. Interestingly the suit for eviction was filed by the plaintiff/respondent on 30th September, 1985 when the aforesaid deed of conveyance was not registered. However, the same was decreed for eviction on 5th May, 1992 i. e. , after the deed of conveyance was registered as above. The learned trial court in consideration of the recitals in the deed of conveyance dated 11/12th July, 1990 and the evidences of the parties came to the definite finding that the entire consideration money of the aforesaid suit flat was paid by the plaintiff/respondent on the date of agreement for sale of the suit flat on 12. 2. 1969 and the plaintiff/respondent was put to possession in the suit flat on the self same day and the defendant was inducted as a tenant therein by the plaintiff/respondent.
2. 1969 and the plaintiff/respondent was put to possession in the suit flat on the self same day and the defendant was inducted as a tenant therein by the plaintiff/respondent. So far as these findings are concerned the defendant/appellant did not seriously challenge the same but in view of the aforesaid fact that the deed of conveyance was registered in favour of the plaintiff/respondent during the pendency of the suit on 11/12th July, 1990, it was strongly contended that by virtue of an agreement for sale, title to the suit premises did not pass on to the plaintiff/respondent and as such, she was not entitled to a decree for eviction under section 13 (1) (ff) of the said Act on the date of filing of the suit and the title having passed on to the plaintiff/respondent on the strength of the aforesaid deed of conveyance only on 11/12th July, 1990, the suit for eviction filed on 30. 9. 85 is not maintainable as it is hit by the provisions of sub-section 3a of section 13 (1) of the said Act. ( 4 ) SUB-SECTION 3a of section 13 (1) provides that where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in Clause (f) or Clause (ff) of sub-section (1) shall be instituted by the landlord before expiration of a period of 3 years from the date of his acquisition of such interest. Mr. Prodesh Mallick, learned senior advocate and in the later part of this case, Mr. Dipak Deb, learned advocate referred to the various reported decisions namely AIR 1981 Calcutta, 404 (Amullya Gopal Majumder v. United Industrial Bank Ltd and Others), 77 Calwn 424 (Sri Nishikanta Roy v. Sri Monomohan Sen Gupta), AIR 1987 Delhi, 36 (Imtiaz Ali v. Nasim Ahmed), AIR 1960 Supreme Court, 1368 (Radhakrishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and Others), AIR 1995 Supreme Court, 1891 (Sunil Kumar Jain v. Kishan and Others) to contend that an agreement for sale does not confer title in a property. All the aforesaid decisions except those reported in 77 Calwn 424, AIR 1987 Delhi 36 are on the principles of law relating to acquisition of title in a property under the provisions of Transfer of Property Act.
All the aforesaid decisions except those reported in 77 Calwn 424, AIR 1987 Delhi 36 are on the principles of law relating to acquisition of title in a property under the provisions of Transfer of Property Act. There is no dispute in law that none can call himself another on the basis of an agreement to purchase the property unless a registered deed of conveyance is executed in his favour. The question therefore falls for consideration in this appeal is that in the facts and circumstances of this case more particularly on the face of the findings, that on the date of agreement for sale of the suit flate, the plaintiff/respondent paid the entire consideration money and was put into possession and inducted the defendant as a tenant in the suit premises, which could not be challenged in this appeal, whether the plaintiff/respondent should be treated as an owner for the purpose of section 13 (1) (ff) of the said Act. ( 5 ) MR. S. P. Roy Chowdhury, learned senior advocate in supporting the judgment of the trial court firstly argued, that the ownership contemplated in section 13 (1) (ff) of the said Act is a kind of ownership where all incidents of ownership are prevalent in the property qua the tenant inducted by such a person and in the alternative argued that the deed of conveyance having been registered during the pendency of the suit the defect in title, if there be any, was removed and this court in appeal which is the continuation of the suit can take notice of such subsequent events and can affirm the decree of eviction as three years time now already passed from the date of registration of said conveyance in the meantime. It is no doubt true if the plaintiff/respondent is held to be another of the suit premises for the purposes of section 13 (1) (ff) of the said Act then it will not be necessary to go into the question as to whether this court can affirm the decree of eviction by taking note of the subsequent events as aforesaid. Mr. Roy Chowdhury in support of his first point heavily relied on the decision reported in 1991 (4) SCC 572 (Swadesh Ranjan Sinha v. Haradeb Banerjee) and an unreported judgement of the Division Bench of this court dated 11. 12.
Mr. Roy Chowdhury in support of his first point heavily relied on the decision reported in 1991 (4) SCC 572 (Swadesh Ranjan Sinha v. Haradeb Banerjee) and an unreported judgement of the Division Bench of this court dated 11. 12. 1990 in the case of (Smt Bilas Rajdan v. Fullarani Ghosh and Anothers) passed in an appeal from Appellate Decree No. 341 of 1988. ( 6 ) MR. Roy Chowdhury also relied on the decision reported in 1987 (4) SCC 193 which held that the word 'owner' is not used in section 14 (1) proviso (e) of Delhi Rent Control Act in the sense of absolute owner. ( 7 ) IN our view the decision of the Supreme Court in the case of Swedesh Ranjan Sinha (supra) and the Division Bench of this court in the case of Smt. Bilas Razdan (supra) will clinch the issue. The Supreme Court at Paragraph 8 of the said reported has held as under :-"ownership denotes the relation between a person and an object forming the subject matter of his ownership. It consists in a complex of right, all of which are rights in rem, being good against all the world and not merely against specific persons. " (Salmond on Jurisprudence, 12th edn. , Ch. 8, P. 246 seq ). There are various rights or incidents of ownership all of which need not necessarily be present in every case. They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it. Such a right may be indeterminate in duration and residuary in character. A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a reversionary interest, i. e. , a right to repossess the thing on the termination of a certain period or on the happening of a certain event. " ( 8 ) MORE importantly the facts and circumstances of the unreported judgement of the division bench of this court are similar to the present one. In the said case the plaintiff/landlord entered into an agreement for acquisition of the disputed flat on payment of total price of Rs. 49,440/ -.
" ( 8 ) MORE importantly the facts and circumstances of the unreported judgement of the division bench of this court are similar to the present one. In the said case the plaintiff/landlord entered into an agreement for acquisition of the disputed flat on payment of total price of Rs. 49,440/ -. Clause 5 of the said agreement provided that nothing contained in the document can be construed to confer upon the buyer any right, title and interest of any kind whatsoever into or over the suit land or building or any part thereof. Such conferment took place only upon the execution of the conveyance to a limited company or a Co-operative Housing Society to be formed by the buyers of different flats in the said building. On the facts of the said case it was not disputed that the plaintiff had paid the entire consideration money for acquisition of the disputed flat and it was also admitted that they were put into possession of the same. However, no document was executed by the vendor namely Western Estates in favour of the limited company or a Co-operative Society as contemplated by the Act. In that case the division bench of this court held as under :-WE are satisfied that in terms of the Ext. 1 there is no scope on the part of the Western Estate to evict the plaintiffs from the premises in dispute. It will therefore appear that the plaintiffs are in possession of the property as an owner of the same but the technical conferment of right, title and interest in the property has not yet been completed. Such formality is of no essence in determining whether the plaintiff can be treated as an owner landlord in the disputed property. Since the right of possession of the plaintiff over the disputed property is not circumscribed by any other condition contained in Ext. 1 it cannot be said that they have no unrestricted right of possession and enjoyment of the property. Accordingly, in our view the plaintiffs are owner landlord as contemplated by section 13 (1) (ff) of the West Bengal Premises Tenancy Act, 1956. ( 9 ) IN the case in hand also nothing was pointed out by the defendant/appellant that there was any condition in the aforesaid agreement for sale dated 12. 2.
Accordingly, in our view the plaintiffs are owner landlord as contemplated by section 13 (1) (ff) of the West Bengal Premises Tenancy Act, 1956. ( 9 ) IN the case in hand also nothing was pointed out by the defendant/appellant that there was any condition in the aforesaid agreement for sale dated 12. 2. 1969 stipulating any restriction in the right of possession and/or in the enjoyment of the suit property as an owner by the plaintiff. We are, therefore, inclined to follow the aforesaid division bench judgement of this court. ( 10 ) THE decision cited on behalf of the appellant reported in 77 Calwn 424 (supra) is of the single bench, further the case of the plaintiff in that case was that he had been a tenant of the first degree in respect of two flats each flat consisted of two bed rooms. In terms of a decree for eviction passed against the plaintiff on May 30, 1966, the plaintiff was to vacate one flat and to deliver possession thereof to his landlord. Out of the said two bed rooms in the remaining flat, the defendant had been a tenant of the plaintiff in respect of one bed room. The plaintiff's family consisted of himself, his wife, one son, three unmarried daughters and a maid servant. It was alleged that the plaintiff reasonably required the suit premises, namely the said bed room in the occupation of the defendant. The single bench of this court considering the question from the point of view of "the most enduring interest" which will outlast the interest of other person in a thing, held that a leasee of a property who has sub-leased the same in favour of another is not an owner, for obviously the interest of the lessee is not the most enduring interest and it will not outlast the interest of his lessor in the property because his right is not better in that it does not last longer. So the said case is distinguishable on facts of this case as the interest of the plaintiff in the case in hand has not been shown not to outlast under certain contingencies. Hence the said decision is not an answer to the question raised in this case.
So the said case is distinguishable on facts of this case as the interest of the plaintiff in the case in hand has not been shown not to outlast under certain contingencies. Hence the said decision is not an answer to the question raised in this case. Similarly, the decision reported in AIR 1987 Delhi, 36, (supra) is a decision of a single bench in an application for eviction of a tenant for non-payment of rent. In that case the Additional Rent Controller on an application for eviction directed the tenant/respondent to deposit arrear rents within certain time and further held that in the event of failure to deposit, an order for eviction shall be deemed to have been passed. On appeal the Rent Control Tribunal set aside the same on the ground that there was no relationship between the landlord and tenant which was challenged in an appeal before the single bench of Delhi High Court. In that case question came up for consideration whether the applicant who under the general power of attorney was entitled to induct tenant, realise rent and evict tenant on behalf of executor of general power of attorney, can institute the petition for eviction for non-payment of rent. The court held that in an application for eviction on the ground of non-payment of rents the title to immovable property is immaterial. However, in consideration of the documents produced on behalf of the appellant/landlord, it observed that since admittedly no sale deed was executed in favour of the appellant so far, the appellant could not be said to be the owner of the shop premises under the agreement to sell or general power of attorney executed in his favour by his alleged vendor. The aforesaid observation is a proposition under the general law for acquisition of title in an immovable property of which there is no doubt. Therefore, the said decision of Delhi High Court has no application in the facts and circumstances of this case.
The aforesaid observation is a proposition under the general law for acquisition of title in an immovable property of which there is no doubt. Therefore, the said decision of Delhi High Court has no application in the facts and circumstances of this case. ( 11 ) WE are, therefore, in the facts and circumstances of this case, inclined to hold that the plaintiff/respondent can be treated as the owner of the suit premises for the purpose of section 13 (1) (ff) of the said Act as her right to enjoy the suit property absolutely and against all the world with all the incidents of ownership can be traced from the agreement for sale dated 12. 2. 1969 coupled with the payment of the entire consideration money, delivery of possession in her favour and her right to deal with the suit property by inducting tenant therein in between the period from execution of the agreement for sale and the registration of the deed of conveyance in respect of the same. We, therefore, in agreement with the decision of the division bench of this court in the case of Smt. Bilas Razdan (supra) hold the plaintiff as the owner/landlord as contemplated in section 13 (1) (ff) of the West Bengal Premises Tenancy Act, 1956 in the facts and circumstances of this case. ( 12 ) THE decision on the issue as to the reasonable requirement of the plaintiff/landlord or suit premises has not been challenged by the tenant/appellant and accordingly the judgement and decree passed by the learned trial court for eviction of the tenant/defendant on the ground of reasonable requirement of the plaintiff/respondent does not suffer from any error either in law or in facts of this case. The appeal is accordingly dismissed. The parties will bear their respective costs all throughout. R. Dayal, J.-I agree. Appeal dismissed .