Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 587 (RAJ)

LRs of Late Shri Guru Bux Singh v. Khem Singh

2014-02-28

ARUN BHANSALI

body2014
JUDGMENT : - Hon'ble BHANSALI, J.—This second appeal under Section 100 CPC is directed against appellate judgment and decree dated 24.02.1999 passed by Additional District Judge No.2, Jodhpur, whereby, the judgment and decree dated 13.12.1996 passed by Additional Civil Judge (Junior Division) No.1, Jodhpur has been modified. 2. The facts in brief may be noticed thus : a suit for eviction on the ground of default in payment of rent was filed on 03.02.1981 by Maji Leel Kanwar Deodi through her power of attorney holder Hanuman Singh against Guru Bux Singh for eviction from shop No.10 and a room adjacent to it situated at Sojati Gate, Jodhpur, the rate of rent was indicated at Rs.99/-per month; during pendency of the suit, one Khem Singh S/o Shri Gopi Ram (present respondent) filed application under Order XXII, Rule 3 and 10 CPC on 03.09.1981 with the averments that he has purchased the suit property on 15.04.1981 for his personal requirement from Rai Bahadur Vijay Singh Ji Ganpat Singh Ji Mertia Rathore Rian Badi Dharmarth Trust ('the Trust') by a registered sale deed and since then he has become owner of the property and landlord of the defendant; the plaintiff had made a Public Trust of the property in the name of the Trust on 18.03.1981 and got it registered, copies of both the documents were being filed; the applicant has become owner of the suit property and information in this regard has been given to the defendant; the right to prosecute the present suit has accrued to the applicant on 15.04.1981 and now as plaintiff has died on 23.08.1981, therefore, the right to sue the present suit survives in applicant only; it was prayed that in place of plaintiff, the applicant be substituted as plaintiff. 3. A reply to the application was filed by the defendant and the averments contained in the application were denied for want of knowledge, as the defendant was not given any information about creation of the Trust and no information has been given by the Trust to the defendant; receipt of notice was denied. 4. 3. A reply to the application was filed by the defendant and the averments contained in the application were denied for want of knowledge, as the defendant was not given any information about creation of the Trust and no information has been given by the Trust to the defendant; receipt of notice was denied. 4. The application filed by the applicant Khem Singh was allowed by the trial court on 20.01.1982, inter alia, on coming to the conclusion that during the life time of Maji Leel Kanwar, the suit property was sold to Khem Singh and Maji Leel Kanwar was also a Trustee in the Trust and, therefore, the transfer in favour of Khem Singh has taken place during the life time of Maji Leel Kanwar, as such, the applicant was entitled to be substituted as plaintiff; the trial court also opined that there was no substance in the argument of the defendant that after transfer by Maji Leel Kanwar the Trustees have not become the parties to the suit and, therefore, Khem Singh cannot be substituted as, in the opinion of the trial court, the position of Khem Singh was the same, which was that of his predecessors in title Trust or that of Maji Leel Kanwar. 5. After impleadment, Khem Singh filed application under Order VI, Rule 17 CPC seeking to add ground of reasonable and bona fide requirement of the suit premises, which application was allowed by the trial court. 6. The amended plaint was responded by the defendant by way of filing written statement denying the facts relating to creation of the Trust by Maji Leel Kanwar and purchase of property by Khem Singh from the said Trust; the derivative title of Khem Singh was denied and it was stated that the suit by Khem Singh was not maintainable; the plea regarding default in payment of rent and reasonable and bona fide requirement were also denied besides raising other objections. 7. The trial court framed 13 issues. 7. The trial court framed 13 issues. The evidence was led by the parties and under issue Nos.1, 2B and 9A, the trial court came to the conclusion that the defendant has committed default in payment of rent, the relationship of landlord and tenant between Khem Singh and the defendant is not proved and, therefore, despite default in payment of rent, the plaintiff was not entitled to take benefit of the same; issue No.2A was decided holding that the plaintiff could take advantage of the cause of action, which had accrued to Maji Leel Kanwar; issue Nos.3 and 4 were decided holding that the suit premises were not required by the plaintiff reasonably and bona fidely and the defendant would comparatively suffer more hardship; issue relating to partial eviction was decided holding that partial eviction was not possible; the issue relating to outstanding electricity charges, house tax were decided against the plaintiff; on the issue Nos.8 and 9 it was decided that the tenancy regarding the two premises i.e. shop No.10 and adjacent room was different and, therefore, a single suit was not maintainable and, ultimately, the suit was dismissed by judgment and decree dated 13.12.1996. 8. Feeling aggrieved, the plaintiff Khem Singh filed regular first appeal. 9. The first appellate court reversed the findings partially on issue Nos.1, 2B, 9A, 2, 8, 9 and 10 and came to the conclusion that there was relationship of landlord and tenant between the plaintiff and defendant, though default was committed, but in terms of Section 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 ('the Act'), the defendant was entitled to benefit to first default; issue of reasonable and bona fide requirement was maintained against the plaintiff and the decree was modified to the above extent. 10. Feeling aggrieved, the defendant has preferred the present second appeal. 11. The appeal was admitted by this Court on 06.10.2004 on following substantial questions of law:- “1. Whether the plaintiff Khem Singh became landlord by virtue of purchase of the property in question by registered sale deed (Ex. 1&2) despite the fact that plaintiff has not proved the sale of the property or transfer of the title be creation of Trust by original landlord Leel Kanwar in favour of Raibahadur Vijay Singh Ganpat Singh Ji Mertia Rathore Rian Badi Dharmarth Trust from whom plaintiff is claiming that he purchased the property? 2. 1&2) despite the fact that plaintiff has not proved the sale of the property or transfer of the title be creation of Trust by original landlord Leel Kanwar in favour of Raibahadur Vijay Singh Ganpat Singh Ji Mertia Rathore Rian Badi Dharmarth Trust from whom plaintiff is claiming that he purchased the property? 2. Whether the first appellate court committed serious illegality in appreciating the ambit effect of the sale deed (Ex. 1 & 2)?” 12. During pendency of the present appeal, an application under Order XLI, Rule 27 CPC was filed by the respondent Khem Singh on 13.03.2007 seeking permission to produce additional evidence and has annexed notice dated 13.05.1981 given on behalf of Maji Leel Kanwar to defendant Guru Bux Singh indicating transfer in favour of the Trust, registration slip dated 15.05.1981 and acknowledgment dated 19.05.1981 and notice dated 13.05.1981 on behalf of the Trust to the defendant, registration slip dated 16.05.1981 and acknowledgment dated 19.05.1981 indicating the sale in favour of Khem Singh. It is, inter alia, indicated that the said documents were seized by the Income Tax Department on 27.08.1987 and the same were returned only in the year 2003, the same could not be produced and as the documents were carbon copy of the original receipts of the notices containing signatures of Guru Bux Singh, the documents go to the root of the objection raised by the tenant and, therefore, the same may be permitted to be produced as additional evidence. 13. No reply to the said application has been filed by the appellant. 14. It was submitted by learned counsel for the appellant that the first appellate court was not justified in reversing the findings on issue Nos.2B and 9A as the relationship of landlord and tenant between the plaintiff Khem Singh and Guru Bux Singh was not established. The defendant did not attorn either in favour of the Trust or in favour of Khem Singh as no notice in this regard was given. The defendant did not attorn either in favour of the Trust or in favour of Khem Singh as no notice in this regard was given. It was further submitted that the defendant was entitled to question the derivative title of the plaintiff Khem Singh; the order dated 20.01.1982 passed by the trial court on application under Order XXII, Rule 10 CPC ipso facto cannot make Khem Singh the landlord of the defendant; specific plea was raised in the written statement and issues were framed by the trial court and the finding of coming into being of Trust on the basis of Exhibit-1 and Exhibit-2 is incorrect and the plaintiff was bound to prove the existence of Trust before claiming himself to be the landlord of the suit premises and the missing link cannot be proved by Exhibit-1 and Exhibit-2 only. It was submitted that the documents sought to be produced as additional evidence alongwith application under Order XLI, Rule 27 CPC cannot be taken on record as the same cannot be used for filling up the lacuna left in the evidence. It was further submitted that in the course of statement PW-1 Khem Singh stated that notice was given to the defendant by his lawyer and a copy whereof was supplied to counsel representing him, which statement belies the reasons mentioned in the application under Order XLI, Rule 27 CPC i.e. the seizure of document by the Income Tax Department; the reasons indicated in the application are not germane and the same could have been got produced from the department, the same way Exhibit-1 and Exhibit-2 were got produced from the Income Tax Department. 15. Reliance was placed on Smt. Sugga Bai vs. Smt. Heera Lal : AIR 1969 Madhya Pradesh 31 and Bhisan Singh & Ors. vs. IIIrd Addl. District Judge & Ors. : 1993(2) RCJ 454. 16. Per contra, learned counsel for the respondent submitted that the entire objection raised by the appellant is absolutely baseless as the definition of landlord under Section 3(iii) of the Act includes any person, who is entitled to receive the rent of any premises and as vide Exhibit-1 and Exhibit-2 the suit premises have been transferred to the plaintiff, he would clearly fall within the definition of landlord. It was submitted that the terms of Exhibit-1 and Exhibit-2 are exhaustive and the same have been executed by Maji Leel Kanwar herself as Trustee of the Trust. It was submitted that the present is not a title suit, wherein, the plaintiff was required to prove his title by way of producing the entire chain of document to prove his title to the suit property. In a suit for eviction, the requirement is to prove the relationship of landlord and tenant and nothing more, which issue even otherwise, is required to be proved on the preponderance of probabilities. It was submitted that the relationship of landlord and tenant subsists between the transferee and the tenant even without there being any attornment and though no notice in this regard was required to be given either by Maji Leel Kanwar and/or the Trust to the defendant, the same has in fact been given, which documents have been produced as additional evidence in the present appeal. It was submitted that the notice referred to in the statement of plaintiff was the notice given on his own behalf while the documents sought to be produced as additional evidence are the notices issued by Maji Leel Kanwar and the Trust. Reliance was placed on Panchayat Shri Digambar Jain Mandir Parshwanathji (Soniyan), Jaipur vs. Vishnu Prasad & Ors. : AIR 1981 Raj. 114 and Ram Saran Sharma vs. Smt. Kamla Acharya : 2001 (2) RLR 136. It was prayed that the application under Order XLI, Rule 27 CPC be allowed and the appeal be dismissed. 17. I have considered the rival submissions. 18. From the facts narrated hereinbefore, it is not in dispute that the relationship of landlord and tenant existed between Maji Leel Kanwar and Guru Bux Singh regarding the suit property, from which, eviction was sought by Maji Leel Kanwar by filing the suit on 03.02.1981. 17. I have considered the rival submissions. 18. From the facts narrated hereinbefore, it is not in dispute that the relationship of landlord and tenant existed between Maji Leel Kanwar and Guru Bux Singh regarding the suit property, from which, eviction was sought by Maji Leel Kanwar by filing the suit on 03.02.1981. Further, the transfer of the suit property by the Trust to plaintiff Khem Singh by way of registered sale deeds Exhibit-1 and Exhibit-2 are also essentially not in dispute, what is sought to be disputed by the defendant is that in absence of the 'missing link' wherein, the property was allegedly vested by Maji Leel Kanwar in the Trust, the said link has not been proved, in absence whereof, it cannot be said that the relationship of landlord and tenant was proved by plaintiff Khem Singh and, consequently, the finding recorded by the trial court was correct and the first appellate court fell in error in reversing the said finding. 19. The definition of landlord contained in Section 3(iii) of the Act reads thus:- “3. (iii) “landlord” means any persons 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 or any other person, or who would so receive or be entitled to receive the rent, if the premises were let to a tenant; it includes a tenant in relation to a sub-tenant.” . 20. 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. 21. 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 3(iii) of the Act. Tenant cannot dispute the right of the transferee landlord to maintain an eviction petition under the Act or to claim rent. 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. 22. In the present case, the suit was filed on 03.02.1981 by Maji Leel Kanwar, the Trust was created on 18.03.1981, the property was transferred by the Trust to Khem Singh on 15.04.1981, which was registered on 12.05.1981, Maji Leel Kanwar the original plaintiff died on 23.08.1981. 23. The above events happened in quick succession and more importantly, happened during pendency of the suit. The facts in this regard were indicated for the first time in application under Order XXII, Rule 3 and 10 CPC, which was filed on 03.09.1981. The contents of the application were denied by the defendant essentially based on the fact that the defendant did not receive any notice from Maji Leel Kanwar and/or the Trust. 24. Section 109 of the Transfer of Property Act, 1882 ('the T.P. Act'), on which, strong reliance was placed by learned counsel for the appellant, 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, prays 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.” 25. 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. 26. This Court in the case of Ram Saran (supra) 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. Sec. 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. Sec. 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 teant's attorning or agreeing to the attornment. An identical question came up for consideration in case of Mahendra Raghunath Das (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 (6) Mohd. Hussain vs. 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.”. 27. 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. 28. Thus, the question of attornment by landlord, is no more res integra.”. 27. 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. 28. Though the respondent-plaintiff has by way of application under Order XLI, Rule 27 CPC sought to produce additional evidence for the purpose of bringing on record the fact of sending notice regarding transfer from Maji Leel Kanwar to the Trust and in turn from Trust to plaintiff Khem Singh and proof of their delivery to the defendant and the reason for delayed production also appears to be germane, inasmuch as, the fact of seizure of documents by the Income Tax Department is available on record of the trial court as original of documents Exhibit- and Exhibit-2 were produced by the officer of the department during the course of statement of plaintiff Khem Singh, having held that such notices were not required, the application as such looses its significance. However, exercising powers under Order XLI, Rule 27(1)(b) CPC it is open for this Court to allow production of the said documents for enabling it to pronounce judgment. 29. In the written statement filed by the defendant, the following additional plea was raised: ^^10- ;g gS fd ekth yhddWoj us fooknxzLr ifjlj dk VªLV dk;e djus dh dksbZ lwpuk izfroknh dks ugha nh vkSj u gh izfroknh ,oa ml rFkkdfFkr VªLV ds chp dHkh edku ekfyd ;k fdjk;snkj dk fj'rk gh dk;e gqvk bu gkykr esa tks VªLV dk;e fd;k x;k gS ml VªLV }kjk oknh ds gd esa fd;s x;s tk;nkn ds gLrkUrj.k ls izfroknh iw.kZr;k vizHkkoh gSA blfy;s izfroknh ds fo:) ekStwnk okn dkfcy pyus ds ugha gSaa] ;gh ugha rFkkdfFkr VªLV dks fooknxzLr tk;nkn izfroknh vFkok vU; fdlh dks foØ; djus dk dkbZ vf/kdkj ugha Fkk ,sls rFkkdfFkr gLrkUrj.k ls iwoZ nsoLFkku foHkkx jktLFkku vFkok fdlh Hkh U;k;ky; ls dksbZ vuqefr Hkh izkIr ugha dh xbZ Fkh tc rd ,slh vuqefr izkIr fd;s fcuk tk;nkn dk gLrkUrj.k djus dk rFkkdfFkr VªLV dks dksbZ gd vf/kdkj ugha Fkk] bu gkykr esa oknh dk okn pyus ;ksX; ugha gS] ,oa dkfcy [kkfjth ds gSaA** 30. The plea essentially was that Maji Leel Kanwar did not inform/gave notice regarding creation of the Trust and between the said Trust and the defendant the relationship of landlord and tenant did not come into existence and, therefore, the defendant was unaffected by transfer of the property in favour of the plaintiff by the Trust. 31. It would be noticed that such a plea by the defendant-tenant could be raised and the same would not be affected by provisions of Section 116 of the Evidence Act, 1872 as what was sought to be questioned by the defendant was the derivative title of the plaintiff. Hon'ble Supreme Court in Vashu Deo vs. Bal Kishan : (2002) 2 SCC 50 observed that questioning derivative title by the tenant cannot be equated with denial of title and the same would not be prohibited by Section 116 of the Evidence Act. 32. As noticed hereinbefore, the suit was filed by Maji Leel Kanwar and during pendency of the suit she transferred/vested the property to/in the Trust, which in turn transferred the same to the plaintiff within a short span of two months from the date of filing of the suit. The suit was filed on the ground of default in payment of rent alleging that the tenant had not paid rent since September, 1977 and till January, 1981 the rent of 41 months was due and, therefore, apparently on account of pending suit seeking eviction on the ground of default and the defendant having not paid rent for 41 months, the information in this regard to the defendant, though appears to have been given, was not at all practical and would essentially be an empty formality only. The very fact that by way of application under Order XXII, Rule 3 and 10 CPC, the fact of transfer by Maji Leel Kanwar to the Trust and by the Trust to plaintiff Khem Singh was brought on record and to the notice of plaintiff, the same was the only practical way of bringing the above information to the notice of the Court and, consequently, to the defendant as well. 33. 33. The plea raised in the reply to the application under Order XXII, Rule 3 and 10 CPC and the written statement that for lack of notice from Maji Leel Kanwar regarding transfer to the Trust, the defendant was denying the right of Khem Singh to maintain the suit on account of transfer by the Trust to the plaintiff has therefore no basis. The above sale deeds (Exhibits-1 and 2) contain specific recitals regarding creation of the Trust by a trust deed dated 18.03.1981, right of the trustees to transfer the suit property for the objects of the Trust, possession of the suit property being that with defendant Guru Bux Singh, delivering of symbolic possession of the suit property on account of the same being in possession of the tenant, pendency of the present suit, transfer of right to recover rent and continue with the suit etc. 34. Besides the above, the sale deed was signed by Maji Leel Kanwar herself as trustee of the Trust. When the said documents (Exhibits-1 and 2) were produced by plaintiff Khem Singh, no cross-examination/suggestion regarding non-existence of transfer in favour of the Trust was done/made. 35. As such, from a comprehensive reading of the documents Exhibits-1 and 2, the fact that the sale deeds were executed by Maji Leel Kanwar as Trustee of the Trust in faovur of the plaintiff and keeping in view that the fundamental principle that question of title, as such is alien to the proceedings under the Act and the same can be examined incidentally only, it can be said with certainty that in view of provisions of Section 109 of the T.P. Act and Section 3(iii) of the Act, the relationship of landlord and tenant does exist between the appellant and the respondent. 36. So far as the judgment cited by learned counsel for the appellant in the case of Smt. Sugga Bai (supra) and Bishan Singh (supra) are concerned, in view of what has been discussed above, the said judgments do not advance the cause of the appellant. 37. 36. So far as the judgment cited by learned counsel for the appellant in the case of Smt. Sugga Bai (supra) and Bishan Singh (supra) are concerned, in view of what has been discussed above, the said judgments do not advance the cause of the appellant. 37. In view of the above discussion, the questions formulated by this Court as noticed hereinbefore are answered in the manner that plaintiff Khem Singh became landlord by virtue of registered sale deeds (Exhibits-1 and 2) and the plaintiff was not required to prove transfer of property by Maji Leel Kanwar in favour of the Trust independent of the said documents (Exhibits-1 and 2) and it cannot be said that the first appellate court committed illegality in appreciating the ambit/effect of the sale deeds Exhibit-1 and Exhibit-2. 38. Consequently, there is no substance in the appeal and the same is, therefore, dismissed with costs.