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2014 DIGILAW 2076 (RAJ)

Laxmi Narayan v. Ram Kishan

2014-12-10

ARUN BHANSALI

body2014
ORDER : ” This writ petition under Articles 226 and 227 of the Constitution of India is directed against judgment dated 24.04.2010 passed by Rent Tribunal, Bikaner and judgment dated 13.12.2013 passed by Appellate Rent Tribunal, Bikaner, whereby, the petition filed by respondent No. 1 seeking eviction of the petitioner has been allowed and the appeal filed by the petitioner herein has been rejected respectively. 2. The respondent-landlord filed petition before the Rent Tribunal, Bikaner, inter alia, on the grounds of material alteration, default in payment of rent, bona fide and reasonable necessity and denial of title. 3. The Rent Tribunal after hearing the parties came to the conclusion that the relationship of landlord and tenant exists between the parties, the tenant has committed default in payment of rent, the suit premises was reasonably and bona fidely required by the landlord, the tenant has denied character of landlord, the suit was not barred by provisions of Order XXIII, Rule 1(3), CPC and, consequently, passed the judgment for eviction and the recovery certificate was issued. 4. Feeling aggrieved, the petitioner filed an appeal. 5. The Appellate Rent Tribunal after considering the submissions reiterated the conclusions arrived at by the Rent Tribunal on all the issues and, consequently, dismissed the appeal filed by the petitioner. 6. It was emphasized by learned counsel for the petitioner that both the Tribunals below fell in error in coming to the conclusion that the landlord tenant relationship existed between the parties; the respondent landlord failed to prove attornment by petitioner in his favour and there was no material on record to prove the landlord tenant relationship between the parties and, consequently, the petition before the Rent Tribunal itself was not maintainable; it was submitted that the transfer of the suit property, in favour of the respondent, could not have taken place looking to the nature of property and, as such, no right accrued to the respondent to seek eviction of the petitioner from the suit premises; various submissions were made questioning the title of the respondent. 7. 7. Learned counsel for the respondent submitted that both the Tribunals have concurrently found against the petitioner; in the present proceedings, the petitioner has no right to question the title of the landlord and both the Tribunals were justified in coming to the conclusion that the petition at the instance of respondent was maintainable and whereafter have concurrently held all the issues in favour of the respondent and, therefore, the petition deserves to be dismissed. 8. I have considered the rival submissions made by learned counsel for the parties. 9. The main plank of the petitioner has been that the petitioner-tenant did not attorn to the respondent as landlord and, therefore, the proceedings at his instance were not maintainable; the petitioner has not disputed that he was tenant in the premises; he also did not dispute that Narayan Nand was his landlord. The very fact that the suit premises has been transferred by said Narayan Nand to the respondent, the relationship of landlord and tenant between the petitioner and Narayan Nand having been admitted, it is not open for the petitioner to question the right of Narayan Nand to transfer the suit property to the respondent landlord. 10. So far as the issue of attornment raised by learned counsel for the petitioner is concerned, Section 109 of the Transfer of Property Act, 1882 (' the T.P. Act” ) dealing with attornment reads as under:- ' 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 lease 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 proportion 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 by any Court having jurisdiction to entertain a suit for the possession of the property leased.' 11. The above provision provides that on account of transfer of ownership of the premises to the respondent by the previous lessor, the respondent becomes the lessor and becomes entitled to receive the rent in terms of the lease by operation of Section 109 of the T.P. Act. No attornment of tenancy is necessary in law as the above Section creates a statutory attornment and the Section does not insist that the transfer of the lessor” s right can take effect only if the tenant attorns as attornment by tenant is unnecessary to confer validity to the transfer of lessor” s right. However, the Section protects payment of rent by the tenant to the transferor without notice of the transfer. The transfer of ownership of the premises to the respondent by the previous lessor results in statutory attornment by the tenant in favour of the lessor” s transferee and consequently jural relationship of landlord and tenant, the said right of transferee under Section 109 is not curtailed or modified by the T.P. Act. 12. This Court in the case of Ram Saran Sharma v. Smt. Kamla Acharya : 2001 (2) RLR 136 : (AIR 2001 (NOC) 70 (Raj)) held and observed as under:- ' 17. As regards the law of attornment, envisaged under Section 109 of the Act of 1882, it is held that Section 109 of the said Act does not require service of notice on the tenant, on alienation of property, to create relationship of landlord and tenant between the transferee landlord and the existing tenant. The transferee of the lessor steps into the shoes and possess all the rights, which the transferor has and the attornment is not a condition precedent, to give validity to the transfer made in favour of the transferee. Section 8 of the Act of 1882 specifically provides that a transfer of property passes forthwith, to the transferee, all the interests, which the transferor is capable of passing in the property, including the legal incidents thereof and such incidents include the rents and profits thereof. Section 8 of the Act of 1882 specifically provides that a transfer of property passes forthwith, to the transferee, all the interests, which the transferor is capable of passing in the property, including the legal incidents thereof and such incidents include the rents and profits thereof. Once the title of the assignee is complete, the attornment is automatic not dependent on the tenant” s attorning or agreeing to the attornment. An identical question came up for consideration in case of Mahendra Raghunath Das, ( AIR 1997 SC 2437 ) (supra), wherein, it is ruled by the Supreme Court, which reads thus: ' It is well settled that a transferee of a landlord” s rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The Section does not require that the transfer of the right of the landlord could take effect only if the tenant attorns to him. Attornment by tenant is not necessary to confer the validity of the transfer of the landlord.' 18. The aforesaid question also came up for consideration, before me, in case of Mohd. Hussain v. Uakoob, reported in 1997 (2) RCR 443, wherein, it is ruled that tenant has not legal justification to question oral gift. Giving notice to tenant by landlords regarding change in ownership is a mere technicality. It was held in the aforesaid case that question of title is foreign, in a suit for eviction by landlord against tenant, but in abundant caution, where such issues are found to be necessary, it can be raised incidentally. It was held that because the transferee is clothed with right to recover rent and eject lessee, no payment of rent or attornment to lessor is necessary. The decision cited by the learned counsel for the landlord plaintiff respondent, mentioned hereinabove, indicates towards the aforesaid conclusion. Thus, the question of attornment by landlord, is no more res integra.' . 13. As such, from the above, it is apparent that neither any attornment was necessary on part of the tenant for conferring the right to receive the rent, nor any notice in this regard was necessary for the purpose of alleged attornment. 14. Thus, the question of attornment by landlord, is no more res integra.' . 13. As such, from the above, it is apparent that neither any attornment was necessary on part of the tenant for conferring the right to receive the rent, nor any notice in this regard was necessary for the purpose of alleged attornment. 14. Besides the above, the definition of landlord under Section 2(c) of the Rajasthan Rent Control Act, 2001 (' the Act” ) reads as under:- ' (c) ' landlord' means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver for any other person, or who would so receive or be entitled to receive the rent, if the premises were let to a tenant.' 15. It would be seen from the above definition that it is not only the person, who for the time being is receiving the rent, but even a person ' who is entitled to receive the rent of any premises whether on his own account or as an agent, trustee, guardian or receiver,” is included in the definition of landlord. 16. The expression entitled to receive the rent in the aforesaid definition signify that the transfer of interest of the landlord in favour of any other person is not prohibited, as a transferee of the lessor is entitled to collect rent in terms of the lease as of right and becomes a landlord under Section 2(c) of the Act. Tenant cannot dispute the right of the transferee landlord to maintain an eviction petition under the Act or to claim rent. Hence, in the case of a valid transfer of premises by the lessor by way of sale, as the transferee would be entitled to receive the rent of the premises, he would fall within the definition of landlord. 17. From the above discussion, it is apparent that the submissions made by learned counsel for the petitioner pertaining to attornment and the right of transferee landlord to file the suit has no basis. 18. So far as the findings of the two Tribunals below on the grounds of eviction are concerned, both the Tribunals have recorded concurrent findings on all the three grounds of eviction raised by the landlord. 18. So far as the findings of the two Tribunals below on the grounds of eviction are concerned, both the Tribunals have recorded concurrent findings on all the three grounds of eviction raised by the landlord. Learned counsel for the petitioner has failed to point out any perversity in the said findings so as to require interference by this Court. 19. Consequently, there is no substance in the writ petition and the same is, therefore, dismissed. The stay petition is also dismissed. No order as to costs. Petition dismissed.