Mahaboobia Educational Society, Warangal v. Sudhir Pujari
2001-04-12
VAMAN RAO
body2001
DigiLaw.ai
VAMAN RAO, J. ( 1 ) HEARD both sides. ( 2 ) THIS second appeal is directed against the judgment of the II Additional district Judge, Warangal dated 20-1-1997 rendered in AS No. 68 of 1990 under which the appeal against the judgment of the ii Additional Senior Civil Judge, Warangal dated 5-11-1990 in OS No. 41 of 1982 has been dismissed. The defendant is the appellant herein. The suit of the plaintiffs for eviction of the defendant from the suit property has been decreed by the trial court. ( 3 ) THE facts leading to this appeal may be stated briefly as follows : the plaint schedule property is a strip of land measuring 95. 5 feet x 19 feet situated behind a petrol bunk with house No. 9/981 abutting JPN Road, previously called as prince Mukaramjahi Road. The plaint schedule property is admittedly a part of the whole property to an extent of 1902 square yards consisting of a building, vacant site and a petrol bunk situated to the west of the aforesaid JPN Road, Warangal. The constructed portion of the building is located to the extreme west of the whole site with h. No. 9/859. The vacant portion of the site to an extent of 421. 7 square yards was occupied by a petrol bunk leaving a space of 13. 7" on the northern side of the petrol bunk for ingress and egress, to reach the building located on the west with H. No. 9/ 859. This whole of the property including the petrol bunk was owned by one Yerrabelli venkateswar Rao and his four brothers besides another by name Yerrabelli muralidhar Rao. While so, the defendant in the suit which is an educational society under the name and style of the Mahabubia educational Society, Warangal secured a lease as a month to month tenant for running a school in H. No. 9/859 with appurtenant site and also the way to reach JPN Road on the east through a passage of about 13 . 07" located to the north of the petrol bunk site which was also leased out by the same landlords. Both leases were very old and the defendant agreed to pay a monthly rent of Rs. 55/- to the landlords for the building they have occupied for running the school with appurtenant site and passage to reach the road.
07" located to the north of the petrol bunk site which was also leased out by the same landlords. Both leases were very old and the defendant agreed to pay a monthly rent of Rs. 55/- to the landlords for the building they have occupied for running the school with appurtenant site and passage to reach the road. ( 4 ) IN 1962, the landlords of the whole property intended to sell away the said property and as the extent of the property is very huge and especially the same is located in the heart of Warangal city, they intended to sell the property by entrusting the same to some real estate people who had experience in purchase and sale of the immovable properties. Accordingly, the landlords appointed one Sri R. Rami Reddy, advocate of Hyderabad as General Power of Attorney holder to dispose of the properties who in turn appointed the auctioneer of Kachiguda, Hyderabad to auction the aforesaid premises. They have divided the property into four bits as shown in the annexed plan. The auctioneers made divisions in the property admittedly to the knowledge of the defendant who was the tenant in respect of H. No. 9/859 wherein a school was run. The plaint schedule property which is a strip of land of a width of 19 feet and a length of 95-1/2 is annexed to the petrol bunk site to an extent of 421. 7 square yards and the auctioneers designated the said property as plot No. 1 to a total extent of 622. 7 square yards. To the west of the plaint schedule property and to the east of the building with H. No. 9/859, they created a passage of 13 feet wide bifurcating the plaint schedule property from the building occupied by the defendant as a tenant. The northern most part of the building with h. No. 9/859 was identified as plot No. 2. The main building with H. No. 9/859 was bifurcated into northern portion and southern portion and were designated as plot Nos. 3 and 4. ( 5 ) ADMITTEDLY, the defendant also intended to participate in the auction for purchase of the properties and they are said to have nominated one Veerabhadra Rao son of Ramachandran who was the treasurer of defendant-institution as their agent to participate in the auction of the property on behalf of the Educational Society.
3 and 4. ( 5 ) ADMITTEDLY, the defendant also intended to participate in the auction for purchase of the properties and they are said to have nominated one Veerabhadra Rao son of Ramachandran who was the treasurer of defendant-institution as their agent to participate in the auction of the property on behalf of the Educational Society. Though the said Veerabhadra Rao was said to have been nominated as agent of defendant-society for purchase of the immovable property as divided by the auctioneers, the said veerabhadra Rao independently acted to participate in the auction held by the auctioneers of the landlords on his own. The said Veerabhadra Rao, the Treasurer of the institution became the highest bidder in respect of plot No. 1 allegedly representing the defendant Society whereas the defendant society became the highest bidder in respect of plot Nos. 2, 3 and 4 and obtained a separate agreement of sale which later fructified into absolute sale. While so, the plaint schedule property for which veerabhadra Rao became the highest bidder was sold to the deceased first plaintiff smt. Shakuntala Narayan Poojari (SN pujari) at the request of the highest bidder sri Veerabhadra Rao. A separate sale deed dated 29-3-1966 was executed in favour of sn Pujari by the GPA holder of the landlords. After the death of the first plaintiff, plaintiffs 2 to 4 were brought on record. ( 6 ) APART from plot Nos. 1 to 4, as formed by the auctioneers, some extent of vacant site was left as passage including the passage of 13 feet wide in between the plaint schedule property and plot Nos. 3 and 4. This passage to an extent of 240. 7 square yards was formed for the enjoyment of plot Nos. 2,3 and 4. Shortly after the sale deed was obtained for plot No. l including the plaint schedule property of 19 x 195 . 5" annexed to the petrol bunk, the plaintiff began to claim rights even for the passage of 240. 7 square yards left on the west and north of the suit schedule property. Aggrieved by the acts of Veerabhadra rao in taking the sale deed in favour of smt.
5" annexed to the petrol bunk, the plaintiff began to claim rights even for the passage of 240. 7 square yards left on the west and north of the suit schedule property. Aggrieved by the acts of Veerabhadra rao in taking the sale deed in favour of smt. S. N. Pujari and further aggrieved by the intention of the plaintiff to claim the rights for the passage on the west and east of the plaint schedule property, the defendant- institution filed a suit in OS No. 31 of 1966 on the file of the Subordinate Judge s court, Warangal claiming exclusive rights of 240. 7 square yards shown as item No. 2 in the plaint schedule property of the said suit on the ground that the said Veerabhadra rao purchased the said strip of land of 19 x 195 . 5" representing as an agent of the defendant-Educational Society and to direct the said Veerabhadra Rao to re-convey the property to the defendant-educational institution. The respondent herein was defendant in the said suit. The plaint schedule property was shown as item no. 1 in the schedule annexed to the plaint in that suit. The said suit was partly decreed in respect of item No. 1 of the plaint schedule property therein and the suit so far as item No. 2 of the plaint schedule property of the said suit which is the plaint schedule property in the suit was dismissed on the ground that a separate sale deed was obtained by the plaintiff S. N. Pujari in respect of the plaint schedule property. ( 7 ) IN that suit, the learned Subordinate judge recorded a finding that the plaint schedule property was a part of the lease hold property of the defendant institution and the same was in its possession and observed that as the plaintiff (defendant herein) was entitled of item No. 1 as tenant, and the plaintiffs are entitled to evict plaintiff illegally. The Curt also held that the plaintiff in that suit was entitled to possession of the said property till it was evicted in due course of law by defendants 1 and 2.
The Curt also held that the plaintiff in that suit was entitled to possession of the said property till it was evicted in due course of law by defendants 1 and 2. ( 8 ) INASMUCH as the suit of the plaintiff in OS No. 31 of 1996 was dismissed in respect of the present plaint schedule property, the plaintiff had no occasion to challenge that judgment about the possession of the plaintiff therein (defendant herein) over item Nos. 2 and 3 in that suit. The plaintiff thus asserts rights as owner of plaint schedule property and does not admit any subsisting tenancy in respect of that property in favour of the defendant herein. However, notice under Section 106 of the Transfer of property Act was issued on 27-3-1981 terminating the lease hold rights of the defendant in relation to the plaint schedule property by the end of the tenancy month of april, 1981 and directed the defendants to vacate the plaint schedule property and put her in the vacant possession of the same by 1st May of 1981. No reply was sent to the said notice, The defendant society did not vacate the plaint schedule property as demanded in the notice. Therefore, the plaintiff filed the suit for eviction of the defendant from the plaint schedule property and also claimed mesne profits to the tune of Rs. 10,800/- for preceding three years, @ Rs. 300/- per month with subsequent interest and also claimed future mense profits at the rate of Rs. 500/- per month with subsequent interest at the same rate on the ground that it is in wrongful possession of the suit property since the time of dismissal of the suit in OS No. 31 of 1966 in relation to the plaint schedule property. ( 9 ) THERE is no controversy as to the history of the change of title in respect of various items of original property of the landlords. The defendant society resisted the suit mainly on the ground that the plaint schedule property is appurtenant to the building with house No. 9/859 which was originally leased out to them by erstwhile landlords.
The defendant society resisted the suit mainly on the ground that the plaint schedule property is appurtenant to the building with house No. 9/859 which was originally leased out to them by erstwhile landlords. The plea is that the plaint schedule property is an appurtenant site to the tenanted building and as such the provisions of A. P. Buildings (Lease, Rent and Eviction Control) act, 1960 (for short the Rent Control Act ) are applicable and the civil Court has no jurisdiction to entertain the suit for eviction. It is also however pleaded that the lease was not properly terminated. It is denied that the tenancy of the defendant stood extinguished on the purchase of other items of the suit property in OS No. 61 of 1966 by the defendants. It is also claimed that both the passages are exclusive properties of the defendants on which the plaintiffs have no right. ( 10 ) ON these pleadings, the trial court framed appropriate issues. On behalf of the plaintiffs, PWs. 1 to 4 have been examined and Exs. A1 to A6 have been marked. On behalf of the defendants, DWs. 1 to 4 have been examined. On this evidence, the trial Court held that the defendant has been tenant at sufferance of the plaintiff in respect of the suit schedule land whose tenancy was terminated by a notice under section 106 of the Transfer of Property Act and accordingly decreed the suit for eviction. The learned trial Judge also awarded past mesne profits @ 200/- per month and future mesne profits @ 300/- per month with simple interest at 6% until eviction. ( 11 ) IN appeal, the learned Additional district Judge formulated a point for consideration as to whether the plaint schedule property can be called as an appurtenant site to the tenanted building h. No. 9/851 even after it is bifurcated from the tenanted premises by a passage of 13 feet wide and will stillbe governed by the provisions of the Rent Control Act so as to take away the matter from the jurisdiction of the civil Court. ( 12 ) THE other questions framed relate to the termination of tenancy and as to whether the tenancy was properly terminated and whether the decree for payment of past and future mesne profits was proper.
( 12 ) THE other questions framed relate to the termination of tenancy and as to whether the tenancy was properly terminated and whether the decree for payment of past and future mesne profits was proper. On the main question as to whether the suit premises are governed by the provisions of a. P. Buildings (Lease, Rent and Eviction control) Act, the learned Additional District judge held against the defendant to the effect that the tenanted premises was not governed by the provisions of Act and thus held that the civil Court has jurisdiction and accordingly dismissed the appeal. It is this judgment, now challenged in the appeal on various grounds. ( 13 ) THE sum and substance of the contentions raised on behalf of the appellant is that the findings of both the Courts below that the plaint schedule property having been separated from the building in question cannot be considered as appurtenant property is erroneous. The contention is that the lease in favour of the defendant was an integral lease of the building with the appurtenants land and that the act of the lessor in demarcating the leased property into different portions for the purpose of sale would not result in splitting of tenancy in favour of the defendant in respect of the suit schedule property which was not purchased by the plaintiff. The consequential contention is that as the lease is conjoint for the building along with the appurtenant land, notwithstanding purchase of the building by the plaintiff, the lease does not loose its character as being lease of appurtenant open land with the building and as such the provisions of the Act would apply. ( 14 ) THUS, the points that arise for consideration in this second appeal may be formulated as follows: i. Whether the purchase of the building by the defendant with the knowledge that the property leased out in his favour was demarcated into separate plots and the plot representing the appurtenant land being one of the plots and the building itself having been designated as another plot would lead to an inference that he impliedly surrendered the lease hold rights in respect of the open land which was appurtenant to the building and would have the effect of waiver of his right to claim lease of the building and the appurtenant land. II.
II. Whether demarcation of the whole property held by the lessors into the different portions and the sale of the plaint schedule property which is open land along with 13 feet wide passage in favour of the plaintiff-purchasers would have the effect of changing the nature of the lease as integral lease of a building with appurtenant land? iii. The resultant question would be whether under these circumstances the provisions of the Rent Control Act are applicable in respect of proceedings for eviction of the defendant or whether the provisions of the Transfer of Property Act alone are applicable. ( 15 ) IT is neither pleaded nor there is anything in the evidence to show that the demarcation of the property held by the lessors into separate pieces and designating the suit land which is appurtenant to the building as a separate plot and the building itself having been shown as a separate unit was done with the consent of the defendant. However, the learned Counsel for the respondents contended that the appellant defendant had the knowledge of such laying out of the plaint schedule land into various plots and with such knowledge, the defendant has chosen to purchase the building without the appurtenant open land. But, it is the unilateral decision of the plaintiff-vendor to demarcate his entire land into various pieces for the purpose of offering them to sell. There is nothing to show that this was done with the consent of the defendant. Mere acquiescence of the defendant under the circumstances in which he had no choice would neither amount to consent nor would it lead to an inference that the defendant has surrendered lease hold rights in respect of the open land. The further fact that the defendant had purchased the building without the open land also does not lead to any such inference of his surrendering his lease hold rights to the open land. There can be reasons for the defendant s failure to purchase the appurtenant open land. In fact, it is stated that the agent nominated by the defendant to purchase the property committed breach of trust and purchased the said land in the name of plaintiff. Lack of sufficient resources may also be a reason. There is no need to go into such reasons. But, such failure to purchase does not lead to an inference of surrender of lease hold rights.
Lack of sufficient resources may also be a reason. There is no need to go into such reasons. But, such failure to purchase does not lead to an inference of surrender of lease hold rights. ( 16 ) THE next question is whether the laying out of the entire property into different plots for the purpose of sale by the plaintiff and showing the building as one piece and the open appurtenant land along with 13 passage as another piece would change the nature of the lease as an integral lease of the building with the appurtenant land. Both the Courts below proceeded on the assumption that the defendant is a tenant of the building along with the appurtenant land. Under Section 2 (iii) of the A. P. Buildings (Lease, Rent and Eviction) Control act, 1960, "building" has been defined as follows:"2. Definitions :in this Act, unless the context otherwise requires (i) xxxx (ii) xxxx (iii) building means any house or hut or part of a house or hut, let or to be let separately for residential or non- residential purposes and includes:- (a) the gardens, grounds, garages and outhouses if any, appurtenant to such house, hut or part of such house or hut and let or to be let along with such house or hut or part of such house or hut; (b) any furniture supplied or any fittings affixed by the landlord for use in such house or hut or part of a house or hut, but does not include a room in a hotel or boarding house". Thus, under Section 2 (iii) (a) garden, grounds, garages and out houses appurtenant to a house let or to be let out along with such house or hut or part of such house or hut have been included in the definition of the building. Thus, it is apparent that even an open land shall be deemed to be a building within the meaning of Section 2 (iii) of the act if it has been let out along with a building or a hut as appurtenant to such house or hut. ( 17 ) THE learned Counsel for the respondents-plaintiffs relying on the judgment of this Court in the case of Thatayya v. Venkataramana, 1965 (1) An.
( 17 ) THE learned Counsel for the respondents-plaintiffs relying on the judgment of this Court in the case of Thatayya v. Venkataramana, 1965 (1) An. WR 93, has urged that lease in respect of open land cannot be considered as lease relating to the building within the meaning of section 2 (iii) of the Rent Control Act. What has been held in the judgment is that where open land has been leased out for the purpose of construction of house or huts, such open land cannot satisfy the definition of the building within the meaning of the Act. In fact, there are clear observations of the Court to show that if any building is leased out along with garden or ground which is appurtenant to such hut or a part of such house, such ground or garden has to be treated as building. ( 18 ) THERE is no dispute in this case, that under the original lease deed under which the defendant obtained the building in question, the suit land was covered by the lease agreement having been described as land appurtenant to the building. ( 19 ) THE contention of the learned counsel for the appellant is that the original lease being in respect of the building along with the appurtenant land, the mere fact that the plaintiff purchased the building and another purchaser purchased the appurtenant land from the landlord, the nature of the lease as integral lease of the building along with the appurtenant land is not changed. ( 20 ) THE contention of the learned counsel for the respondent, plaintiffs, however is that the defendant having purchased the building, the lease in respect of the building is determined and he relies on Section 11 l (d) of the Transfer of Property act, which reads as follows:"section 111. Determination of Lease : a lease of immovable property determines : (a) xxxx (b)xxxxx (c)xxxxx (d) in case the interest of the lessee and the lessor in the whole of the property becomes vested at the same time in one person in the same right; (e) to (h) xxxx" ( 21 ) THERE can be no dispute that if the defendant purchases the property which he has obtained on lease from the landlord, then the lesser right of tenancy gets merged into larger proprietary rights and the lease is thus determined.
But, here, it is not the case of the tenant having purchased the whole of the property, which was leased out to him. Section 111 (d) of the Transfer of property Act would apply where the interest of the lessee and lessor in the whole of the property becomes vested at the same time in one person in the same right. Thus, the purchase of the building by the tenant does not have the effect of determination of the entire lease under which the lessee obtained the building along with the appurtenant land on lease from the landlord. Section 37 and Section 109 of the transfer of Property Act have a bearing on the question of transfer by the lessor of the property leased. Section 37 reads as follows:"section 37. Apportionment of benefits of obligation on severance :when, in consequence of a transfer property is divided and held in several shares, and thereupon the benefit of any obligation relating to the property as a whole, passes from one to several owners of the property, the corresponding duty shall, in the absence of a contract to the contrary, amongst the owners, be performed in favour of each of such owners in proportion to the value of his share in the property, provided that the duty can be severed so that the severance does not substantially in case the burden of the obligation; but if the duty cannot be s evered, or if the severance, would substantially in case the burden of the obligation, the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for that purpose: provided that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it in the manner provided by this section, unless and until he has had reasonable notice of the severance. Nothing in this Section applies to leases for agricultural purposes unless and until the State Government by notification in the Official Gazette, so directs".
Nothing in this Section applies to leases for agricultural purposes unless and until the State Government by notification in the Official Gazette, so directs". ( 22 ) UNDER this provision, where the benefit or any obligation relating to any property as a whole passes from one to several owners of the property, the corresponding duty shall in the absence of a contract to the contrary be performed in favour of each of these owners in proportion to the value of the share in the property provided that the duty can be severed so that the severance does not substantially increase the burden or obligation but if the duty cannot be severed or if the severance would substantially increase the burden of the obligation, the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for that purpose. This provision obviously does not have any application to the facts of this case. ( 23 ) THIS provision deals with the obligation of the tenant to be performed towards the landlord as it is clear from the illustrations given under the section. ( 24 ) AS to what will be rights and obligations of the lessor and lessee where the lessor transferred the property leased is dealt with under Section 109 of the transfer of Property Act, which is extracted below:"section 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".
( 25 ) SECTION 109 of the Transfer of property Act postulates the effect of transfer of property leased in favour of the tenant by the lessor, the following consequences would ensue: (i) Where the lessor transferred the property leased or any part thereof or any part of his interest therein, the transferee in the absence of contract to the contrary shall possess all the rights. This first part of the section deals with the rights of the transferee from the lessor. (ii) It also contemplates that if the lessee so elects, the transferee from the lessor shall be subject to all liabilities of the lessor as to the property or part transferred so long as he is the owner of it. Thus, what is contemplated is that as far as the liabilities owed by the lessor towards lessee are concerned, the transferee shall be liable for the same if the lessee so elects. (iii) The third part of Section 109 contemplates that the lessor shall not by reason only of such transfer ceased 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. ( 26 ) THE learned Counsel for the appellant relying on the judgment of the supreme Court in the case of SK. Sattar SK. Mohd. Choudhari v. Goundappa Amabadas bukate, AIR 1977 SC 998, contends that the tenancy cannot be split either instate or in rent or any other obligation by unilateral act of one of the co-owners. This decision does not really help the appellant. The observations of the Supreme Court in para 15 appear relevant. It has been stated that even if the estate is in possession of a tenant, who is under an obligation to pay rent, there can still be a severance of such estate and it has also been observed that the properties which have been transferred by the lessor and which were leased out before the transfer, the questions arising out of transfer are dealt under Section 109 of the transfer of Property Act. Thus, the rights of the parties in this case have to be determined with reference to the provisions of Section 109 of the Transfer of Property act.
Thus, the rights of the parties in this case have to be determined with reference to the provisions of Section 109 of the Transfer of Property act. As analysed above, it is obvious that the lessor shall not by reason of transfer of leased property 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. ( 27 ) IT is apparent that mere transfer of the property under lease by the original landlord in favour of a third person will not efface the liabilities of the lessor in favour of the lessee. ( 28 ) FURTHER, Section 48 of the Transfer of Property Act also appears relevant. Section 48 of the Transfer of Property Act is extracted below for ready reference:"section 48: Priority of Rights Created by Transfer :where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot at all exist or be exercised to their full extent together each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created". ( 29 ) THIS provision postulates that where a person purports to create by transfer at different times rights in or over the same immovable property and such rights cannot at all exist or be exercised to their full extent together, each later created right shall in the absence of a special contract or reservation binding the earlier transferees is subject to the rights previously created. ( 30 ) IN this case, the vendor of the deceased plaintiff No. 1 created lease hold rights in favour of the defendant. This is an earlier right created by the owner in favour of the defendant. Later, he sold the property under registered sale deed in favour of the deceased plaintiff No. 1 (plaintiffs 2 to 4 are the LRs of the first plaintiff ). Admittedly, there was no special contract or reservation binding the earlier transferee, namely, the defendant lessee that the transfer of title in favour of plaintiff No. 1 shall not be subject to the lease hold rights of the defendant.
Admittedly, there was no special contract or reservation binding the earlier transferee, namely, the defendant lessee that the transfer of title in favour of plaintiff No. 1 shall not be subject to the lease hold rights of the defendant. Therefore, in view of Section 48 of the transfer of Property Act, the later transfer of ownership in favour of plaintiff shall be subject to the lease hold rights of the defendant herein. ( 31 ) THE question that arises for consideration in this case is what are the obligations which the transferee plaintiff owes in favour of the earlier transferee of the lease hold rights under the lease deed. ( 32 ) IT is not disputed that the original lease granted by the vendor of the plaintiff no. 1 in favour of the defendant before the transfer in favour of plaintiff No. 1 was in respect of a building along with the appurtenant land. It is clearly admitted in the plaint that the suit land (open land) formed part of the house and vacant premises in which the defendant society was a tenant housing its educational institution, which was purchased by the Society exclusive of the suit land. ( 33 ) THE obligations of landlord have to be ascertained not only with reference to the provisions in the Transfer of Property Act but also with reference to the provisions of the Rent Control Act inasmuch as the original tenancy was undoubtedly governed by the provisions of the said Act. ( 34 ) SECTION 10 of the Rent Control Act emphatically lays down that a tenant shall not be evicted whether in execution of the decree or otherwise except in accordance with the provisions of the said Section 10 or 12 or 13 of the Rent Control Act. Sections 12 and 13 obviously do not apply to the facts of this case. Thus, a tenant cannot be evicted from the leased premises except in accordance with Section 10 of the act unless any of the grounds stipulated under Section 10 of the Rent Control Act are satisfied. It may be mentioned that the rent Control Act is a beneficial legislation and it has been held that a tenant cannot even contract himself out of the provisions of the Act.
It may be mentioned that the rent Control Act is a beneficial legislation and it has been held that a tenant cannot even contract himself out of the provisions of the Act. It is a matter of public policy that a tenant of the premises to which the act applies shall not be evicted unless the requirements or the grounds for eviction under Section 10 of the Rent Control Act are satisfied. Thus, it may be seen that under Section 109 of the Transfer of Property act, the purchaser from a lessor shall not by reason of transfer of the property in his favour from the original vendor 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. Similarly, as seen above, section 48 of the Transfer of the Property act contemplates that a transfer under subsequent transaction shall be subject to the rights of the transferee under a transaction earlier in point of time. The liabilities in favour of a tenant referred to under section 109 of the Transfer of Property Act and Section 48 of the Transfer of Property act would not only be relating to the obligations under the terms of the contract but must necessarily include the obligations created under any statute. ( 35 ) INASMUCH as the original lease was in respect of house along with the appurtenant ground or open land, obviously the premises satisfied the definition of the building within the meaning of Section 2 (iii) of the Rent Control Act. If that is so, the tenant could not have been evicted otherwise than in accordance with the provisions of section 10 of the Rent Control Act. Thus, the liability of the landlord to comply with the provisions of Section 10 of the Act before eviction of the tenant could be sought is a liability which the purchaser of the open land, namely, plaintiffs herein would owe in favour of the defendant-tenant. In this case, the defendant lessee has communicated that he elected to treat the transferee as the person liable to him inasmuch as he has taken the plea in his written statement that the plaintiff, transferee-landlord cannot evict him except in accordance with section 10 of the Rent Control Act.
In this case, the defendant lessee has communicated that he elected to treat the transferee as the person liable to him inasmuch as he has taken the plea in his written statement that the plaintiff, transferee-landlord cannot evict him except in accordance with section 10 of the Rent Control Act. Thus, the liability that the defendant-tenant shall not be evicted except in accordance with section 10 of the Act is the one which the plaintiffs as transferees from the original landlord continue to owe in favour of the defendant. The liabilities of the landlord in favour of the tenant in this regard are obvious inasmuch as the tenancy was in respect of the premises which satisfied the definition of the Building under Section 2 (iii) of the Rent Control Act. It is necessary to remember that the lessor has transferred his existing interest in the suit property which as stated above is subject to the liabilities under the lease in favour of the defendant. As held by the Madras High Court in the case of Munvar Basha v. V. Narayanan, air 1961 Mad. 200 , on a transfer of some property which is the subject to lease, even if in law, there could be said to be attorment by the tenant in favour of the purchaser, a new tenancy is not created. Thus, the purchase by the plaintiff from the previous landlord shall be subject to the liabilities of the landlord under the lease. ( 36 ) THE question is whether the mere fact that the tenant happened to purchase a part of tenanted premises namely the building himself and in that view his rights of tenancy in respect of the building have merged in his rights as owner would have the effect of abrogating the obligation of the landlord in favour of the tenant not to seek eviction except in accordance with section 10 of the Act. ( 37 ) IT is pertinent to mention here that had it not been the case that the defendant purchased the building, and if some third party had purchased it, it would not have been possible to contend that the defendant-tenant was not entitled to rights flowing from Section 10 (3) of the Rent Control Act.
( 37 ) IT is pertinent to mention here that had it not been the case that the defendant purchased the building, and if some third party had purchased it, it would not have been possible to contend that the defendant-tenant was not entitled to rights flowing from Section 10 (3) of the Rent Control Act. The mere circumstance that the tenant happened to purchase the building to which the suit premises are appurtenant land shall not have the effect of depriving the defendant of the benefits of the provisions of the Rent Control Act. Had the defendant not purchased the building himself, he could have certainly set up his defence that he was not liable to be evicted except in accordance with the provisions of the Act. The mere fact of his purchase of the building would not have the effect of depriving him of that defence. If, instead of the defendant, some other person had purchased the building and the plaintiff had purchased the appurtenant open land it would not have been possible for them to sue for eviction of the tenant-defendant merely by notice of termination of the tenancy by pleading that the provisions of the Rent Control Act are not applicable. Again the unilateral act of the landlord to split a building and appurtenant land into two separate pieces would not set at naught the operation of law relating to eviction of the tenant under the rent Control Act even though the Act was applicable to the original tenancy before the property was split up into pieces. I am inclined to hold that such would not be the effect of the unilateral act of transfer of the property in favour of two different persons and it would not enable the landlord to contend on that basis that the open land now transferred to a third party cannot be considered as appurtenant to the building. The rights of the tenant under the beneficial legislation of the Rent Control Act cannot be defeated by such devices adopted by the landlord. ( 38 ) IT is all the more so in this case inasmuch as the defendant continued to be in possession of the building, a part of the premises which are the subject-matter of the original lease though as a purchaser.
( 38 ) IT is all the more so in this case inasmuch as the defendant continued to be in possession of the building, a part of the premises which are the subject-matter of the original lease though as a purchaser. The defendant would have certainly expected that while his possession over the building would continue as a owner, he would continue to enjoy the possession of the appurtenant land under the original lease. It is, therefore, obvious that the mere unilateral act of the original lessor in transferring the appurtenant land in favour of the plaintiff no. 1 would not deprive the defendant from relying on the provisions of the A. P. Buildings (Lease, Rent and Eviction Control) act, 1960. ( 39 ) IN the result, it is held that the defendant-tenant could have been evicted only by recourse to the provisions of The andhra Pradesh Buildings (Lease, Rent and eviction) Control Act, 1960 and the civil court has no jurisdiction. ( 40 ) ACCORDINGLY, the appeal is allowed and the judgment and decree of the ii Additional District Judge, Warangal dated 20-1-1997 confirming the judgment and decree in OS No. 41 of 1982 on the file of the II Additional Subordinate Judge, warangal is set aside and the suit of the plaintiffs therefore stands dismissed, but under the circumstances without costs.