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2010 DIGILAW 1730 (ALL)

Sachchida Nand Singh v. A. D. J.

2010-05-24

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Heard learned counsel for the petitioner and for the respondent-caveator. 2. This petition is directed against concurrent judgments dated 14.9.2009 and 18.3.2010 by which the suit of the respondent-landlord for eviction and arrears of rent has been decreed by both the courts below. 3. It appears that the respondent no. 2, landlord instituted a Small Cause Suit no. 46 of 2003 against the petitioner-tenant for his eviction on the ground of arrears of rent etc. through its power of attorney holder, Sri Kanhaiay Tiwari. After contest, the suit was decreed by the Small Cause Court vide its judgment dated 1.8.2006. However, in the consequential revision filed by the tenant some additional documentary evidence was brought on record, therefore the matter was remanded to the trial court to examine the landlord-tenant relationship and also whether the power of attorney holder could institute the suit. After remand, the suit was again decreed on 14.9.2009 and the resultant revision has also been dismissed. 4. Learned counsel for the petitioner has urged that since the disputed premises was sold to the power of attorney holder Sri Kanhaiya Tiwari and another person vide sale deed dated 11.5.2004 and therefore, the plaintiff's right and title to the property had extinguished and as such, decree could not have been passed. 5. Copy of the sale deed is on record and it is not denied at the bar that the sale deed was executed in favour of Sri Kanhaiya Tewari through whom erstwhile landlord and owner had filed the suit. The court below, after relying upon a decision of this Court in the case of Pursottam Das Verma Vs. IInd Additional District Judge and others, has held that even if Kanhaiya Tewari had not been impleaded as a plaintiff, the suit could proceed and decreed. This Court in Pursottam Das Verma's case was confronted with identical facts where the erstwhile owner had transferred the property in dispute during the pendency of the suit which was decreed and the power of attorney holder turned dishonest and entered into a compromise with the tenant in execution proceedings forcing the subsequent owner to file an application for setting aside the compromise order. While framing three questions, this Court, considering the true scope and effect of section 52 of the Transfer of Property Act holding that the decree will have a binding effect on the subsequent purchaser even though she was not a party to the suit. Considering the effect of section 146 of Code of Civil Procedure and order XXII Rule 10 thereof, it went on to hold that the subsequent purchaser had a right in the execution of the decree also. The aforesaid decision applies with full force and greater because here power of attorney holder remained party to the suit. Thus, the argument cannot be accepted. 6. Lastly it is urged that none of the two courts below have recorded a finding with regard to default. 7. A perusal of both the impugned orders show that a finding with regard to default was recorded by the Judge, Small Cause Court in its order dated 1.8.2008 and which finding of fact was not set aside by the revisional court in its order dated 31.1.2008. The court has found that the finding with regard to default had become final as it was not set aside or questioned in the revisional order dated 31.1.2008. Conveniently, the petitioner has neither annexed the order dated 1.8.2008 nor the order dated 31.1.2008 but the finding in the orders dated 14.9.2009 and 18.3.2010 have not been shown to be perverse. Accordingly, the argument is rejected. 8. No other point has been urged. 9. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.