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2001 DIGILAW 257 (JK)

Mohan Lal v. Gopal Swami

2001-10-31

R.C.GANDHI

body2001
1. This Civil 2nd Appeal has been preferred against the judgment and decree dated: 17-05-2001 passed by the learned Additional District Judge, Reasi in File No. 5/Appeal upholding the judgment and decree dated: 28-02-1994 passed by the Sub-Judge (Chief Judicial Magistrate) Udhampur whereby suit of the plaintiff for declaration that respondent-1 has manipulated the agreement and not executed by the appellant has been dismissed. Upon pleadings of the parties following four issues were framed by the trial court vide its order dated: 16-12-1989:- 1. Whether the agreement to sell dated: 25-10-1988 executed by plaintiff in favour of defendant No. 1 has been obtained by force and by playing fraud? O.P.P. 2. Whether the plaintiff executed an affidavit attested by the Notary for handing over the possession of the suit shop to defendant No. 1? O.P.P. 3. Whether the plaintiff is entitled to get the rent from defendant No. 2? O.P.P. 4. To what relief the plaintiff is entitled? O.P.P. 2. The trial court dismissed the suit. Appeal has also been dismissed upholding the judgment and decree of the trial court. 3. Impugned judgment and decree have been challenged on the proposed substantial questions of law as urged by the learned counsel for the appellant "that respondent No. 1 being not in possession of the suit property was not competent to create tenancy by executing Rent Deed with Respondent No. 2. 4. Facts of the case are that appellant instituted a suit on 31-10-1985 seeking declaration that agreement to sell executed in favour of respondent No. 1 in respect of the shop owned and possessed by the plaintiff situated at Rount Tehsil Udhampur for consideration of Rs. 16,800/- has been fraudulently obtained and is thus null and void, in effective and against the right of the plaintiff-appellant. He also sought perpetual prohibitory injunction restraining defendant No. 1 from compelling defendant No. 2 from executing the deed in respect of suit shop in his favour. He further sought direction to respondent No. 2 to pay rent to the appellant-plaintiff. 5. The decrees and judgments of the courts below have not been challenged on the grounds that these are perverse. Mr. Wazir has pressed only proposed substantial questions of law. He further sought direction to respondent No. 2 to pay rent to the appellant-plaintiff. 5. The decrees and judgments of the courts below have not been challenged on the grounds that these are perverse. Mr. Wazir has pressed only proposed substantial questions of law. To bring home his point, he has submitted that on the basis of sale deed executed in favour of respondent No. 1 by the appellant, appellant was not legally entitled to create tenancy with respondent No. 2. In support of his plea, he has relied upon the judgment of Full Bench of this Court in Shiv Kumar & Ors. Vs. Ajodhia Nath & Ors. (AIR 1972 J&K 125) which deals with the status of the person in whose favour the agreement to sell has been executed. In paras 6 to 8 of the judgment, it has been observed that:- ...The crucial point to be seen is as to what is the nature of possession of a proposed vendee under an agreement to sell. A contract of sale has been specifically defined thus:- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not of itself, create any interest in or charge on such property.� 7. Thus the Act does not recognise the doctrine of a contract for sale creating an equitable estate in favour of a vendee and specifically provides that the contract would not itself create any interest in or charge on the property proposed to be sold. 8. It is, therefore, clear that even after the agreement to sell title clearly resides in the vendor and even though he may have parted with possession, the possession of the proposed vendee is under the agreement and not being a transfer of interest, it is at the utmost, that of a licensee and is therefore, clearly permissive. Where, therefore, the origin of possession of the proposed vedee is proved to be permissive, it will be presumed to be so until and unless something occurred to make it adverse...� 6. In this judgment the point in issue was that what is the status of a person put in possession of the property on the basis of agreement to sell. The court held that such a person is in permissible possession. In this judgment the point in issue was that what is the status of a person put in possession of the property on the basis of agreement to sell. The court held that such a person is in permissible possession. He has also relied upon section 105 of the Transfer of Property Act which defines lease and reads thus:- 105. Lease defined- A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined. The transferor is called the leasee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent." 7. This provision of law also is of no aid to the appellant to make out that the agreement to sell does not transfer a right for creating tenancy. 8. It is settled proposition of law that to create tenancy, it is not required that such landlord should be either the owner or title holder of the property The term "landlord" has been defined in sub-section (4) of section 2 of J&K Houses and Shops Rent Control Act, 1966 which reads as under:- (4). "Landlord" means any person who for time being is receiving the rent of any house or shop from the tenant thereof and includes any person who is entitled to bring suit for such rent." 9. Learned counsel for the appellant has relied upon the judgment delivered in Bodh Raj Vs. Om parkash (KLJ 1988 497) to make out that where change of title is by way of transfer of property as contemplated by section 109 of the Transfer of Property Act or by partition, the tenant is intimated about the change of the landlord for such transfer of interest in the property. On intimation, tenant is required to return to the new landlord or to suffer consequence as envisaged by section 116 of the Evidence Act. On intimation, tenant is required to return to the new landlord or to suffer consequence as envisaged by section 116 of the Evidence Act. Appreciating this proposition the court has held in para-4 as under:- Change in title of the landlord and duty of the tenant to attorn in faovur of new landlord. When change in the title of the landlord either by transfer as contemplated by Section 109 of the Transfer of Property Act or on a partition takes place and the tenant is intimated about the change of his landlord following such transfer of interest in the property he is required to attorn in the new landlord. However, while intimation of such change is an act to be done by either the original landlord or his successor, the attornment is the obligation of the tenant. What is important is that the tenant has to be properly intimated about the change in the title of the property. Once this is done, it is his option either to attorn to the new landlord or suffer the consequences envisaged by section 116 of the Evidence Act on his failure to do so." 10. Respondent No. 1 by creating tenancy which is protected under section 116 of the Evidence Act. Mr. Wazir could not make out that the proposed substantial questions of law could be framed in this appeal. The appeal fails and is accordingly dismissed.