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2015 DIGILAW 1988 (RAJ)

Dev Kishan v. Nand Prakash

2015-12-01

VINEET KOTHARI

body2015
JUDGMENT :— The appellant/defendant/tenant, Dev Kishan S/o Uda Ram, has filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908, in this Court on 09.03.2015 aggrieved by the eviction decree granted by learned Additional District Judge No.1, Sri Ganganagar, vide judgment and eviction decree dated 08.12.2014 in the first appeal filed by the plaintiff/respondent No.1 being Civil Appeal No.36/1996, Nand Prakash v. Lajwanti & Anr., in respect of suit shop situated in Sri Gangangar, ad-measuring 11'' x 12'' reversing the judgment and decree dated 17.08.1995 passed by learned Addl. Civil Judge (Jr. Division) No.1, Sri Ganganagar, in Civil Original Suit No.176/1988, Nand Prakash v. Lajwanti & Anr., whereby the suit filed by the plaintiff/respondent for eviction under Section 22 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, hereinafter referred to as ' Act of 1950), was dismissed. 2. The learned trial court of Addl. Civil Judge (Jr. Division) & Judicial Magistrate, First Class No.1, Sri Gangangar, vide its judgment and decree 17.08.1995 after evaluating the evidence of the parties, proceeded to dismiss the suit filed by the plaintiff while giving following findings: (Vernacular matter omitted ...Ed.) The learned trial court dismissed the suit filed by the plaintiff/respondent No.1 on 17.08.1995, however, upon an appeal filed by the plaintiff assailing the said order before the learned Additional District Judge No.1, Sri Gangangar, who vide order dated 12.08.1998 remanded the matter back to trial court while deleting the Issue Nos. 1 and 2 and in place of those issues, three issues were framed. The appellant/defendant filed a misc. appeal before this Court assailing the judgment dated 12.08.1998, being S.B. Civil Misc. Appeal No.574/1998-Smt. Lajwanti & Anr. v. Nand Prakash, which appeal was partly allowed and setting aside the judgment and decree dated 17.08.1995 directed the trial court to decide the aforesaid three issues and thereafter the appellate court was directed to decide the appeal. 3. Upon such remand made, the learned trial court vide its judgment and decree dated 30.05.2013 proceeded to decide the newly framed issues against the plaintiff/respondent and held as under: ' 29. ' Attornment' (Vernacular matter omitted ...Ed.) Attornment' implies continuity of tenancy, though landlord might change while title of the property passes by sale or otherwise'. (Mohd. Ilyas v. Mohd. Upon such remand made, the learned trial court vide its judgment and decree dated 30.05.2013 proceeded to decide the newly framed issues against the plaintiff/respondent and held as under: ' 29. ' Attornment' (Vernacular matter omitted ...Ed.) Attornment' implies continuity of tenancy, though landlord might change while title of the property passes by sale or otherwise'. (Mohd. Ilyas v. Mohd. Adil, AIR 1994 Del 212 , 218) Attornment refers to an acknowledge of the existence of the relationship of landlord and tenant. (Vernacular matter omitted ...Ed.) 3. Being aggrieved by the rejection of suit for eviction, the plaintiff/respondent filed first appeal. The first appeal filed by the plaintiff/respondent came to be allowed by the learned first appellate court vide judgment and decree dated 08.12.2014 giving the following findings while reversing the judgment and decree of the learned trial court with the following observations and findings: (Vernacular matter omitted ...Ed.) 4. Being aggrieved by the reversal of the judgment and decree of the trial court by the appellate court, the appellant/defendant has filed the present second appeal. 5. Mr. Muktesh Maheshwari, learned counsel for the appellant/defendant has vehemently submitted that on the basis of sale-deed dated 28.10.1986, the present plaintiff/respondent could not be held to be the owner of the suit property because he failed to prove his title over the suit property and the fact of partition having taken place between Shankerdas, the predecessor-in-title of the plaintiff, and Patramdas, (brother of Shankerdas) way back in the year 1966 was not at all proved before the trial court and, therefore, there was no attornment in favour of plaintiff/respondent Nand Prakash and the eviction decree could not have been granted in his favour. He further submitted that the suit property after the death of original landlord, i.e. Sh. Patramdas, in the year 1979 was given by way of licence to the defendant/tenant by the legal representatives of Sh. Patramdas, who lived outside Sri Ganganagar; and Shankerdas, never acquired any right in the suit property, therefore, he cannot be pass on any title to the present plaintiff and thus the tenant had right to continue in the said premises. 6. On the other hand, Mr. Patramdas, who lived outside Sri Ganganagar; and Shankerdas, never acquired any right in the suit property, therefore, he cannot be pass on any title to the present plaintiff and thus the tenant had right to continue in the said premises. 6. On the other hand, Mr. H.R. Soni, learned counsel for the respondent/plaintiff submitted that question of title is not at all relevant in the eviction matters under the provisions of Act of 1950 and it does not lie in the mouth of the tenant/defendant to question the title of the plaintiff/landlord, Nand Prakash. As far as attornment in favour of purchaser is concerned, the same is automatic and the moment the plaintiff purchased the suit property through a registered sale-deed, which was duly proved by him, was and is enough proof of title in favour plaintiff/respondent over the suit property. If any partition between the brothers, Patramdas and Shankerdas was to be challenged, the same could have been challenged by the legal representatives of Patramdas, but no such suit was ever filed before the competent court much less decreed in favour of legal representatives of Patramdas. He also refuted the defence of tenant about licence given by the legal representatives of Sh. Patramdas, in favour of defendant/tenant as there is no such documentary or oral evidence on record. He further submitted that no such defence was taken by the defendant even in the written statement filed by him in the suit. 7. Having heard the learned counsel for the parties, this Court is satisfied that the learned trial court had completely failed to appreciate the correct legal position about the automatic attornment of the tenancy in favour of purchaser of the suit property i.e. plaintiff, Nand Prakash; and there was no requirement in law for the plaintiff to prove separately the landlord-tenant relationship qua the present defendant/tenant except proving the registered sale-deed in his favour, which in the instant case, he has proved. The defendant/tenant is not entitled to raise the plea or doubt about the chain of title in favour of owner of the suit property. The title of the plaintiff/landlord cannot be questioned by the tenant/defendant and as a matter of fact the Rent Control Act of 1950 enumerates the denial of title of the landlord/plaintiff by the defendant as one of grounds for eviction of the tenant. 8. The title of the plaintiff/landlord cannot be questioned by the tenant/defendant and as a matter of fact the Rent Control Act of 1950 enumerates the denial of title of the landlord/plaintiff by the defendant as one of grounds for eviction of the tenant. 8. The term 'landlord' has been deliberately defined in an expanded manner under the Rent Control Act, 1950, an special law, to include even the person, who merely collects the rent, or has a right to receive the rent, irrespective of his being the owner of the property or not. The word ' Landlord' is defined under Section 3 (iii) of the Act of 1950, as under: '(iii). '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 of 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 are let to a tenant; it includes a tenant in relation to a sub-tenant.' 8A. The Hon— ble Apex Court in the case of Rishab Chand Bhandari (D) by LRs & Anr. v. National Engineering Industry Ltd., reported in 2010 DNJ (SC) 214 : (AIR 2010 SC (Supp) 192), has held as under: ' 10. The natural landlord of a premises is ordinarily the owner. However, an expanded definition has been given in various rents statutes of many States for the reason that sometimes the owner may not himself be in a position to collect the rent and may hence appoint an agent or authorize any person to collect rent on his behalf because he may be abroad or is unable to do so for any other reason. This does not mean that the natural meaning of the word ' landlord, who is the owner of the premises, would disappear and that the owner goes out of the picture altogether. This is the view taken by the Delhi High Court in the case of Shri Madan Lal v. Shri Hazara Singh, 1977 (2) RLR 641. We approve of the view taken in the said decision. If we interpret the definition of ' landlord— in the Act literally it will result in strange consequences. This is the view taken by the Delhi High Court in the case of Shri Madan Lal v. Shri Hazara Singh, 1977 (2) RLR 641. We approve of the view taken in the said decision. If we interpret the definition of ' landlord— in the Act literally it will result in strange consequences. It will mean that even if the owner who is the natural landlord, does not want to evict a tenant, his agent may do so. Surely this is an absurd situation. It is well settled that if a literal interpretation leads to absurd consequences, it should be avoided, and a purposive interpretation be given.' 9. The attornment in favour of transferee is automatic is a well settled legal position, which was reiterated by the Hon-ble Apex Court in the case of Ramadhar Shrivas v. Bhagwandas, reported in 2006 (1) Civil Court Cases 450 (SC), and this Court in the case of Ram Saran Sharma v. Kamla Acharya, reported in 2001 AIHC 2369. In the case of Ram Saran Sharma (supra), this Court in para 17 held as under: ' 17. As regards the law of attornment, envisaged under Sec. 109 of the Act of 1882, it is held that Sec. 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 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. 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 (sic) Das (1997 (5) (SC) 363) (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.' 10. In view of this, the learned appellate court was perfectly justified in law in reversing the judgment of the learned trial court and granting the eviction decree in favour of plaintiff. The defence now sought to be set up before this Court at this stage by the defendant/tenant that the defendant was a licencee in view of licence allegedly issued by the legal representatives of late Sh. Patramdas, is absolutely misconceived as neither such a plea or ground was taken before the courts below nor any evidence, oral or documentary, has been led by the tenant. Furthermore, there is no contrary evidence available even to prima facie doubt the registered sale-deed in favour of plaintiff/respondent. 11. Therefore, this Court does not find any reason to upset the eviction decree granted by the learned appellate court as no substantial question of law arises in the present second appeal. The eviction decree given under Section 13 (1) (f) of the Act as quoted above, therefore, deserves to be upheld and the present second appeal filed by the appellant/defendant/tenant is found to be devoid of any force and the same does not actually raise any substantial question of law and the same is hereby dismissed. 12. The eviction decree given under Section 13 (1) (f) of the Act as quoted above, therefore, deserves to be upheld and the present second appeal filed by the appellant/defendant/tenant is found to be devoid of any force and the same does not actually raise any substantial question of law and the same is hereby dismissed. 12. The appellant/defendant/tenant shall hand over the peaceful and vacant possession of the suit premises to the plaintiff/respondent on or before 01.12.2016 and shall pay mesne profit @ Rs.3,000/- per month commencing from January, 2016 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the plaintiff/respondent, also and in case there is any default in payment of mesne profit, the period granted for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff/respondent, within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant/tenant shall also not sub-let, assign or part with the possession of the suit shop or house or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void and such third parties will also be bound by this decree. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months from today, and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the plaintiff/respondent on or before 01.12.2016 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the plaintiff/respondent or the owner of the suit property shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and the parties concerned forthwith. Appeal dismissed.