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2007 DIGILAW 271 (UTT)

BISWAN CHANDRA HARRISH v. POORAN CHANDRA JOSHI

2007-05-16

RAJESH TANDON

body2007
JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri Alok Singh, Sr. Advocate, assisted by Sri J.C. Sharma, counsel for the appellant and Sri Arvind Vashisth, counsel for the respondents. 2. Present appeal was admitted on the following questions of law : “4. Because it having been found that defendant-respondent had acknowledged Zamir Ahmad as Lessor by atornment the defendant-respondent because lessee of the plaintiff and will be liable to ejectment. 7. Because the Lower Appellate Court has misread and misinterpreted the Gift-deed which itself recites that possession of the properties gifted had been given over to the donee.” 3. By the present second appeal filed under Section 100 of the Code of Civil Procedure, the plaintiff-appellants have prayed for setting aside the judgment and decree dated 18.03.1977 passed by the 1st Additional District Judge in Civil Appeal No. 86 of 1976. 4. Briefly stated, a suit was filed by the plaintiffs-appellants for eviction of the defendants-respondents from the first floor of House No. 51 Sakhawatganj Haldwani, District-Nainital. According to case of the plaintiffs-appellants, they are the owners of the premises. Earlier owner of the property was Sheikh Zamir Ahmad and the defendant-respondents have been continuing to be the tenants of the premises since the time of their predecessor. On 11th October, 1965 Zamir Ahmad has sold the property in favour of the plaintiffs and the defendants continued to be the tenants at the rate of Rs. 10.38 paisa and were liable to pay the rent to the plaintiffs. The plaintiffs have sent a notice in the month of October, 1965 stating therein that the defendants have become the tenants of the plaintiffs. On 4th November, 1965, the defendants have replied the said notice denying the title of the plaintiffs, hence, the suit was filed for eviction and as such tenancy stood terminated under Section 111 of the Transfer of Property Act. 5. The defendants have contested the suit by filing the written statement. In the written statement, title of the Zamir Ahmad as well as ownership of the plaintiffs was denied. It was alleged in the written statement that Zamir Ahmad has no right to transfer the building in dispute. 6. The trial Court has framed as many as nine issues. The trial Court has decreed the suit. The appellate Court has reversed the findings on the question of ownership of the plaintiffs or their predecessor. It was alleged in the written statement that Zamir Ahmad has no right to transfer the building in dispute. 6. The trial Court has framed as many as nine issues. The trial Court has decreed the suit. The appellate Court has reversed the findings on the question of ownership of the plaintiffs or their predecessor. The findings of the trial Court is quoted below : “Nitya Nand Joshi having attorned Zamir Ahmad as his landlord and having paid rent to him and having known that Zamir Ahmad had sold the house to the plaintiffs could not legally deny the title of Zamir Ahmad and of the plaintiff and was estopped fro doing so. He in fact denied the title not only of the plaintiffs but also of Zamir Ahmad. He thereby incurred the forfeiture of his tenancy under Section 111(h) of the Transfer of Property Act.” 7. The appellate Cout has recorded the finding to the following effect : “A distinction here will have to be made between owner and landlord. The plaintiffs were not the owners as the sale-deed in their favour was invalid and the question was whether they could be the landlords. No rent was ever paid to them and their title was disputed from the very beginning. The attornment in favour of Jamir Ahmad was neither heritable nor transferable and a transfer of the same under an invalid sale-deed could not possibly be imagined. It may be emphasized that attornment is a matter of personal violation on the part of the tenant and it was not capable being transferred or conveyed by the landlord to his own transferee as against the existing tenant or any person claiming through him.” 8. In a similar matter, landlord/owner remained the same and the tenant was Shambhu Dutt Joshi. The matter came up before this Hon’ble Court in Second Appeal No. 1269 of 2001. In the said matter, the High Court has held as under : “10. Ext. 18 (Paper No. 32 in the trial court record), filed by the plaintiff, is the copy of the order mutation recorded with the Municipal Board, Haldwani. This document shows that in the year, 1965-66 in place of Zamir Ahmad, names of plaintiffs B.C. Harris and Isabella Harris, were recorded as owners in the Municipal record in respect of house No. 51. 11. This document shows that in the year, 1965-66 in place of Zamir Ahmad, names of plaintiffs B.C. Harris and Isabella Harris, were recorded as owners in the Municipal record in respect of house No. 51. 11. The plaintiffs claimed their title and landlord ship on the basis of sale deed dated 13.10.1965 (copy of which is Ext. 2, paper No., 18C in the trial court’s record), which is executed by Zamir Ahmad in favour of the plaintiffs after accepting consideration of Rs. 18,000/- from them in respect of the property in suit. Ext. 20 (paper No. 56) filed by the plaintiff is the copy of Hiba (gift deed dated 31.05.1949) whereby Akhtari Begum widow of Sakhawat Hussain has transferred her property by way of gift including the house in question to her brother Zamir Ahmad. It is also mentioned in the gift deed that she had no issue of her own. In the gift deed dated 31.05.1949, while parting with the possession of the property, it has been mentioned that Zamir Ahmad would collect the rental income during her life and will deposit with her. 12. D.W. 1 Jeewan Chandra Joshi, S/o defendant who was the sole witness, examined before the trial court on behalf of the defendant, has admitted in his examination in chief itself that his father Shambhu Dutt Joshi (defendant) was inducted as tenant by Sakhawat Hussain who used to collect the rent from the defendant. D.W. 1 Jeewan Chandra Joshi further admits in his examination in chief itself that after the death of Sakhawat Hussain, his widow Akhtari Begum became owner and rent used to be paid to her. This sole witness examined on behalf of the defendant himself admits that his father’s tenancy in the house in question is in respect of six rooms with kitchen, toilet and two verandahs, Shri Jeewan Chandra Joshi (D.W. 1) further states in the examination in chief that Sakhawat Hussain died in the year 1944-45. As to the relationship between the Akhtari Begum and Zamir Ahmad, this witness states that he has heard that Zamir Ahmad is brother of Akhtari Begum. This witness does not deny in his examination that Akhtari Begum has died in the year 1954. As to the relationship between the Akhtari Begum and Zamir Ahmad, this witness states that he has heard that Zamir Ahmad is brother of Akhtari Begum. This witness does not deny in his examination that Akhtari Begum has died in the year 1954. D.W. 1 J.C. Joshi though denies that his father paid rent to Zamir Ahmad but admits that rent was paid vide receipts papers No. 20 C, 21 C and 22 C by his father and explains that Zamir Ahmad took this rent on behalf of Sakhawat Hussain and Akhtari Begum. 13. Paper No. 20 C (Ext. 3), 21 C (Ext. 4) and 22 C (Ext. 5) are the receipts of payment of rent, show that these are the receipts of payment of rent of the year 1964, 1963 and 1962 respectively. In these receipts, name of defendant Shambhu Dutt Joshi is mentioned as tenant and these are signed by Zamir Ahmad. When admittedly Sakhawat had died and thereafter Akhtari Begum also died in the year 1954, the explanation of D.W. 1 J.C. Joshi cannot be accepted that in the year 1964, 1963 and 1962, the rent was being collected by Zamir Ahmad on behalf of either Sakhawat Hussain or Akhtari Begum. Therefore, the relationship of landlord and tenant which infact is established by both the courts below and the finding on this point of the court below is not only erroneous in law but totally against the evidence on record. 14. Now, this court has to examine the validity of the gift deed dated 31.05.1949. Both the courts below have held the gift deed as invalid on the ground that it is not found proved that the possession was delivered by Akhtari Begum to his brother Zamir Ahmad at the time of Hiba. On examination of evidence on record, I found the findings of both the courts below erroneous, misconceived and against the evidence on record. Admittedly, the defendant was in possession of the property in question as a tenant. As such, no physical possession was to be delivered by Akhtari Begum to Zamir Ahmad. If afterwards instead of Akhtari Begum, Zamir Ahmad started taking rent of the house from the tenant (defendant), it is nothing but the consequences of delivery of possession by Akhtari Begum to Zamir Ahmad. As such, no physical possession was to be delivered by Akhtari Begum to Zamir Ahmad. If afterwards instead of Akhtari Begum, Zamir Ahmad started taking rent of the house from the tenant (defendant), it is nothing but the consequences of delivery of possession by Akhtari Begum to Zamir Ahmad. Since it has been found proved, as discussed above that admittedly in the year 1962, 1963 and 1964, rent was collected by Zamir Ahmad from the defendant, it cannot be said that he was not in possession of the property. Needless to say that Akhtari Begum had already died by then in the year 1954. Therefore, the view taken by the courts below that Hiba in favour of Zamir Ahmad made by Akhtari Begum is not valid, is erroneous in law and cannot be upheld. 15. On behalf of the appellants, my attention was drawn to the judgment dated 15.02.1978 passed by Allahabad High Court in Second Appeal No. 1639 of 1972 Tika Ram Kharkwal Vs. B.C. Harris (that was in relation to dispute between present plaintiffs and another tenant) in which Allahabad High Court has found the gift deed dated 31.05.1949, as alid and upheld the decree of ejectment of tenant in said case. From the perusal of said ejectment, it is clear that the tenant in said case was also living in another portion of the same house No. 51 of Mohalla Sakhawat Ganj. In said judgment, Allahabad High Court has found that the possession given by Akhtari Begum at the time of Hiba was a constructive possession, as the accommodation was in the possession of the tenant. 16. Learned counsel for the respondents argued that since the present respondents were not party in said appeal, as such, the judgment passed in said appeal is not binding on the present respondents. This Court is of the view that no doubt said judgment, passed by Allahabad High Court does not operate as res judicata as against present respondents but the legal interpretation of validity of Hiba (gift) in question given by Allahabad high Court has a persuasive value in interpreting the same. In the above circumstances, this Court agrees with the view expressed by the Allahabad High Court, as to the validity of the impugned gift deed. 17. In the above circumstances, this Court agrees with the view expressed by the Allahabad High Court, as to the validity of the impugned gift deed. 17. Assuming for a moment that gift deed dated 31.05.1949, for the want of evidence of delivery of possession of the property at the time of Hiba, does not transfer title to Zamir Ahmad, the fact cannot be ignored that after widowed Akhtari Begum died issueless, it was only Zamir Ahmad who could have inherited the property and was admittedly collecting rent from the defendant/respondent for more than ten years. As such, when Zamir Ahmad transferred the title along with right to collect rent, through sale deed dated 11.10.1965 to the plaintiffs who demanded the rent from the defendant, denial on the part of defendant of the title of the plaintiffs vide notice dated 15.10.1965 does constitute a ground for determination of tenancy under Section 111 of Transfer of Property Act, 1882. And accordingly by notice dated 21.12.1965 served on the defendants by the plaintiffs under Section 106 read with Section 111 of aforesaid Act, they terminated the tenancy of the defendant w.e.f. 21.01.1966. Accordingly the question of law stand answered with the finding as above that the gift deed dated 31.05.1949 was a valid document and the trial court and lower appellate Court have erred in law in holding that the tile was not transferred by said document from Akhtari Begum to Zamir Ahmad. 18. For the reasons as discussed above, the appeal deserves to be allowed. The judgments and orders passed by both the courts below are liable to be set aside. The plaintiffs are entitled to the relief of ejectment of the defendant and also the one for recovery of arrears of rent and mesne profits, as prayed by them at the rate of Rs. 8.33 per month. The appeal is allowed. The impugned judgment and decree passed by the courts below are set aside. Suit No. 52 of 1966, filed by the plaintiffs is decreed with costs, as prayed in the plaint. However, defendants are allowed three months time from today, to vacate the premises in question, failing which the plaintiffs (appellants) may get the decree executed through the trial Court.” 9. The facts of the case and the question of law are similar. Suit No. 52 of 1966, filed by the plaintiffs is decreed with costs, as prayed in the plaint. However, defendants are allowed three months time from today, to vacate the premises in question, failing which the plaintiffs (appellants) may get the decree executed through the trial Court.” 9. The facts of the case and the question of law are similar. The plaintiffs have also acquired the title from Zamir Ahmad and Zamir Ahmad also acquired title from gift-deed executed by Akhtari Begum. High Court has found in the aforesaid second appeal that admittedly the defendant was in possession of the property in question as a tenant, physical possession was delivered by Akhtari Begum to Zamir Ahmad and Zamir Ahmad was accepting the rent from the tenant and thereafter, the plaintiffs were accepting the rent from the defendants and as such the principle of estoppel applies to the facts of the case. 10. It is well settled that the defendants cannot deny the title of the plaintiffs. In Munnawar Vs. Addl. District Judge, Haridwar [2003 (2) ARC 608] after relying upon the judgment of Joginder Singh and another v. Smt. Joginder and others, JT 1996 (1) SC 467 : 1996 SCFBRC 503, it has been held as under : “12. In the case of Joginder Singh and another v. Smt. Joginder and others, JT 1996 (1) SC 467 : 1996 SCFBRC 503, the Apex Court has relied upon the provisions of Section 116 of Evidence Act and has held that no tenant of immovable property can be allowed to deny the title of the landlord. The observations are quoted below : “This is a settled view that having regard to the provisions of Section 116 of the Evidence Act no tenant of immovable property or person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny the title of the owner of such property. In this connection, it would be relevant to make a reference to the decision of this Court in Veerraju v. Venkanna, 1966 (1) SCR 831: AIR 1966 SC 629, wherein this Court, with reference to the decision of Privy Council took the view as under : “A tenant who has been let into possession cannot deny his landlord’s title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord.” 11. In Maroti Vs. In Maroti Vs. Tulsiram and another 1995 SCFBRC 1, the Apex Court has observed as under : “6. The findings recorded by the High Court and the trial Court were that the appellant had entered into the possession as a tenant and he is estopped to deny the title of the trust by operation of Section 116 of the Indian Evidence Act.” 12. The principle of attornment is also contained under Section 109 of Transfer of Property Act. Section 109 provides as under : “109. Rights of lessor’s transferee. — if the lesor 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 imposes 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 lessor, 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 proprtion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made any Court having jurisdiction to entertain a suit for the possession of the property leased.” 13. Relying upon the judgment of Bishant Singh and others v. IIIrd Addl. District Judge, Kanpur Nagar and others 1993 (2) ARC 187 in Rajpal Singh Vs. Devendra Kumar 2002 (2) ARC 422, it has been observed as under : “7. It was then contended that the defendant never attorned to the plaintiff but continued to be the tenant of the erstwhile landlord and there was no relationship of landlord and tenant between the plaintiff and the defendant and the suit was not maintainable. Devendra Kumar 2002 (2) ARC 422, it has been observed as under : “7. It was then contended that the defendant never attorned to the plaintiff but continued to be the tenant of the erstwhile landlord and there was no relationship of landlord and tenant between the plaintiff and the defendant and the suit was not maintainable. Reliance is placed upon 1993 (2) ARC 187, Bishan Singh and others v. IIIrd Additional District Judge, Kanpur nagar and others, in the context of Section 109 of the Transfer of Property Act. Paragraph 18 of this judgment is extracted as follows :- “The conclusion in all the judgments appears to be that the section creates a statutory attornment by operation of law so far as the rights of the lessors are concerned in the same way which he could have on the basis of the contractual attornment but still it is different to say that there could be the privity of contract in absence of the option left by the law to the lessee to elect the transferee as his lessor. In the absence of privity of contract the relationship of landlord and tenant could not come in existence. The order of the Revisional Court suffers from manifest errors of law.” 14. In view of the above, I find the substantial questions of law in favour of the appellant and the second appeal deserves to be allowed and the order passed by the appellate Court is hereby set aside. 15. Counsel for the respondents-defendants has sought some time to vacate the premises. However, taking into consideration the prayer, time is allowed upto 31st July, 2007 to vacate the premises. 16. Consequently, appeal is allowed. No order as to costs.