Om Prakash @ Chandra Prakash v. Gulkandi Devi — 1999 DIGILAW 767 (RAJ)

Honble SHARMA, J.–The defendant-appellant seeks to challenge the judgment and decree dated 2.6.97 of learned Additional District Judge No.1, Ajmer whereby the Civil Regular First Appeal preferred by defendant-appellant was dismissed and the judgment and decree dated 10.12.96 of learned Civil Judge (Jr.Dn.) No. 2, Ajmer passed in a suit for eviction was affirmed. (2). The parties shall be referred herein after in the manner as they were arrayed in the suit. (3). The brief re`sume of the facts is that the plaintiff No. 1 Gulkandi Devi instituted a suit for arrears of rent and ejectment in respect of the property bearing No. AMC 13/265. It was averred in the plaint that the defendant was a tenant on mo- nthly rent at the rate of Rs. 20/- per month and did not pay the rent from July 1, 1984 and had therefore, committed second. It was further contended that earlier a civil suit No. 156/82 was filed on the ground of default and as the defendant had taken the benefit of first default in the said suit he was, therefore, liable for ejectment. The defendant in the written statement denied to have committed second default. On the basis of the pleadings of parties as many as three issues were framed. During tendency of the suit the plaintiff Gulkandi Devi died and after her death her daughter Pushpa Devi sold the property to plaintiff No. 2 Rajesh. The defendant had filed an application to the effect that the plaintiffs suit be dismissed being abated. The purchaser of the property Rajesh also filed an application u/O. 22, R.10 CPC for substitution. The application was allowed and Rajesh was arrayed as plaintiff No. 2. Learned trial court vide its order dated 30.5.94 inducted that the plaintiff No. 1 had retained the arrear of rent prior to 22.6.93 and effect of this shall be decided at the final stage of the suit on merits. On behalf of the plaintiff Badri Prasad PW.1 was examined and the documents were exhibited. The defendant examined him self in support of his written statement but did not produce any document. Learned trial court vide its judgment and decree dated 10.12.96 decided all the issues in favour of plaintiff and decreed the suit. The defendant after being unsuccessful in Civil Regular First Appeal has now preferred the instant second appeal. (4). The defendant examined him self in support of his written statement but did not produce any document. Learned trial court vide its judgment and decree dated 10.12.96 decided all the issues in favour of plaintiff and decreed the suit. The defendant after being unsuccessful in Civil Regular First Appeal has now preferred the instant second appeal. (4). While admitting the instant second appeal on 28.8.97, I framed the follow- ing substantial questions of law:- 1. Whether plaintiff No. 2 Rajesh is entitled to take benefit of defaults committed during the course of previous landlord? 2. Whether the present suit shall be considered as based on second default under the circumstances that defendant had committed first default in the suit instituted by earlier landlord? (5). Mr. Arjun Karnani learned counsel appearing for the defendant canvassed that the plaintiff No. 1 Gulkandi Devi died on 28.12.89 and her daughter Pushpa Devi sold the property in question to plaintiff No.2 Rajesh by virtue of registered sale deed dated 22.6.93 (Ex.3). It was further contended that from the perusal of sale-deed it is clear that the property had sold to plaintiff No.2 and he was given a liberty to institute a suit against the defendant. In the sale deed the arrears of rent which accrue before execution of sale deed were not assigned to plaintiff No.2. There was no separate agreement for assignment of arrears of rent prior to purchase by the plaintiff No.2. In the application dated 2.12.93 under Order 22 Rule 10 CPC filed by plaintiff No.2 it was admitted that plaintiff No.2 had title in the property with effect from 22.6.93. Reply to the application was filed by defendant with the averment that no cause of action had accrued to plaintiff No.2 by virtue of sale-deed in respect of relief which was claimed by plaintiff No.1 in the suit. Undeniably the plaintiff No.2 had no sought any amendment in the plaint claiming any relief in his favour. Learned trial court vide order dated 30.5.94 held that the rent prior to 22.6.93 was retained by the plaintiff No. 1. Where the rent prior to 22.6.93 was not assigned to plaintiff No.2 and no cause of action accrued in his favour. Undeniably the plaintiff No.2 had no sought any amendment in the plaint claiming any relief in his favour. Learned trial court vide order dated 30.5.94 held that the rent prior to 22.6.93 was retained by the plaintiff No. 1. Where the rent prior to 22.6.93 was not assigned to plaintiff No.2 and no cause of action accrued in his favour. But both the courts below did not consider this important aspect and decreed the suit for arrears of rent in favour of plaintiff No.1 for arrears of rent prior to 22.6.93 and for arrears of rent after 22.6.93 decreed the suit in favour of plaintiff No.2 along with eviction. Re- liance was placed on Girdharilal vs. Hukam Singh and others (1), wherein their Lordships of Supreme Court inducted that the transferee would be entitled to collect the arrears of rent if there is contract to contrary. In Hari Krishan vs. Smt. Krishna Mohini (2), the Division Bench of Punjab and Haryana High Court has observed that since there was no assignment of rent in favour of vendee- landlord, he is not entitled to eject tenant in respect of arrears due prior to sale. Similar question was also considered by Bombay High Court in Narendra Singh Virdi vs. N.N. Engineer and Ors., (3), and it was held that the rent looses its character on transfer of property and it become only debt of actionable claim after the property changes hands. The transferee cannot eject tenant for non payment of rent due from the tenant prior to transfer. Their Lordships of Supreme Court in case of N.M. Engineer and others vs. Narendra Singh Virdi and another (4), had also taken the similar view and propounded that the rent due before assignment could not constitute arrears of rent and it was merely an actionable claim. (6). In respect of second substantial question of law it was urged by the learn- ed counsel that before the plaintiff No.2 claims eviction under the proviso to Sec. 13(6) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short `Rent Act) debarring tenant to claim the benefit, it is imperative for him to prove that he was a landlord within the meaning of the Act on the date of filing of the suit. In the instant case the plaintiff No. 2 failed to prove that he was landlord as he was not entitled to receive the rent from 1.4.84 to 31.3.86 which was alleged to be defaulted period and on the basis of which eviction on second default was claimed. Thus awarding of decree of rent for the period prior to 22.6.93 in favour of plaintiff No. 1 and decreeing the suit of eviction in favour of plaintiff No.2 for the rent prior to 22.6.93 is exfacie illegal. Placing reliance on the judgment in case reported in AIR 1960 378 (5) it was contended that even in cases where the rent is assigned it looses its character as rent and becomes debt or actionable claim on transfer of property. In the instant case though it was held by courts below that the rent was not assigned by previous owner still a decree of eviction has been passed which is illegal and without jurisdiction. It was lastly contended by the learned counsel for the appel- lant that the suit was filed by plaintiff No.1 on the ground of second default with the allegation that the defendant had taken the benefit of first default in the past. It was not the case of plaintiff No.2 at any stage of the suit that the defendant had taken the benefit of first default or that he had committed second default by not paying the rent under Section 13(1)(e) of the Rent Act. Thus the relief of eviction which was granted in favour of plaintiff No.2 was beyond the scope of pleading. The decision of the case cannot be based on grounds outside the pleadings of parties and it is the case pleaded that has to be found without an amendment of plaint, the court is not entitled to grant the relief not asked for. On the other hand Mr. B.L. Sam- daria, learned counsel appearing for the plaintiff, contended that the suit premises were sold to Rajesh through his father Badri Prasad and he became party as plaintiff No.2 being the transferee under section 109 of Transfer of Property Act and as per recital of the sale deed got all the rights, title and interest in the suit premises. The concurrent finding of fact of the courts below is that the defendant has committed second default. The concurrent finding of fact of the courts below is that the defendant has committed second default. Vide judgment dated 10.12.96 of the learned trial court the defence was struck off and the said judgment was upheld by the first appellate court vide judgment dated 2.6.97. The defendant has also committed default in payment of rent after the sale of property for the period from 23.6.93 to 18.3.94 that is for ten months. The suit was decreed by the trial court vide judgment dated 10.12.96 and the civil regular first appeal of the defendant was dismissed vide judgment dated 2.6.97. The appellant while supported the findings of the courts below placed reliance on the judgment in case of Ratan Lal vs. Ghasi Lal (6), Babu Lal vs. Kanhaiya Lal (7), Chandra Sen vs. Murari Lal (8), Ashok Kumar Kailash Chand vs. Ram Charan Mool Chand (9), Kesar Dev vs. Smt. Bhoori Devi (10), Satti Krishna Re- ddy vs. Nallamilli Venkata Reddy and Another (11), Akkho vs. M.B. Augustus (12), Vasant Kumar Radhakisan Vora vs. Board of Trustees of the Port of Bombay (13) and Sttar S.K. Mohammad vs. Gundappa (14). (7). I have reflected over the rival submissions and carefully scanned the material on record. In Ratan vs. Ghasi Lal (supra) it was held that the default com- mitted in the payment of rent in respect of first landlord does not ceases to be a default when the previous landlord transfers the property. (8). In Babu Lal and others vs. Kanhaiya Lal (supra) it was held thus in this connection reference may be made to Sec. 109 of the Transfer of Property Act which provides that if the lessor transfers the property leases, 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 with certain provisos which obviously have no application to the present case. It has already been held that Shrimati Vidhyadevi and Banshilal sold the pro- perty in question to the plaintiff through their attorney Kapurchand by the sale deed dated 21.9.1962. It has already been held that Shrimati Vidhyadevi and Banshilal sold the pro- perty in question to the plaintiff through their attorney Kapurchand by the sale deed dated 21.9.1962. Sec.116 of the Transfer of Property Act which is being relied upon by the learned counsel for the appellant has obviously no application to the facts and circumstances of the present case. I, therefore, overrule this contention also. (9). Chandra Sen vs. Murari Lal (supra) was the case where Madhya Pradesh High Court has observed that the transferred landlord can take advantage of the default with respect to previous landlord. (10). Ashok Kumar Kailashchand vs. Ram Charan Mool Chand and Others (supra), was the case where Madhya Pradesh High Court has observed that the transferee Landlord is competent to continue with the prosecution of the suit and to obtain a decree for eviction. (11). In case of Kesardeo vs. Smt. Bhooridevi & others (supra) it was held that the transferee landlord can take advantage of default committed by tenant with previous landlord. (12). In case of Satti Krishna Reddy (supra), their lordships of Supreme Court propounded this thus view is, of course, not shared by most of the other High Courts and even the Calcutta High Court itself in other decisions had not accepted this view. It does appear to me that this view is not correct because it is difficult to see how a claim for arrears of rent ceases to be such when it is assigned by the owner when he transfers his properties to another. (13). In case of Akkho s/o Kishanlal vs. Smt. M.B. Augustus, it was held that the transferee landlord can take advantage of default committed by the tenant during the period of earlier transferor landlord, and this is irrespective of the fact whether the transferee has the right to recover the earlier arrears of rent or not. (14). In case of Vasant Kumar Radhakisan Vora (supra) their lordships of Sup- reme Court propounded in para No. 13 thus ``It is no doubt true that per se Sec. 109 of T.P. Act does not apply to the facts of this case. it contemplates transfer of lessors right inter view course. (14). In case of Vasant Kumar Radhakisan Vora (supra) their lordships of Sup- reme Court propounded in para No. 13 thus ``It is no doubt true that per se Sec. 109 of T.P. Act does not apply to the facts of this case. it contemplates transfer of lessors right inter view course. But when right, title and interest in immovable property sta- nd transferred by operation of law, the spirit behind Sec. 109 per force would apply and successor in interest would be entitled to the rights of predecessor. (15). I am unable to persuade myself to agree with the arguments advanced by learned counsel for the defendant. A careful scrutiny of the sale deed executed in favour of plaintiff No.2 reveals that all rights, title and interest in the suit premises were transferred to plaintiff No.2 and I am satisfied that plaintiff No.2 can take advantage of the default committed by defendant during the period of earlier transferrer landlord, and this is irrespective of the fact, whether the transferee has the right to recover the earlier arrears of rent. I support the ratio of the case of Akkho s/o Kishanlal (supra). (16). In my considered opinion the learned counsel for the defendant has not properly scanned the sale deed. I do not see any infirmity in the concurrent finding of the courts below. The appeal fails and is accordingly dismissed. Cost easy. (17). Still to save the defendant from the peril of sudden ejectment he has to be granted a breathing time. It is directed that the decree for ejectment shall not be available for execution until December 31, 1999 subject to the defendant filing undertaking on affidavits before the Executing Court to the effect that on or before December 31, 1999 he shall hand over peaceful vacant possession to the plaintiffs and in between shall not induct anyone else in the premises nor part with possession in favour of anyone else. He shall also be obliged to deposit the amount of use and occupation charges if any and upto date, regularly with the Executing Court. He shall continue to pay to the landlord or deposit with the Executing Court rent falling due month by month by the 15th day of that month. He shall also be obliged to deposit the amount of use and occupation charges if any and upto date, regularly with the Executing Court. He shall continue to pay to the landlord or deposit with the Executing Court rent falling due month by month by the 15th day of that month. Failing the filing of the undertaking or in the event of breach of any of the conditions aforesaid, the decree of ejectment shall be available for execution forthwith.