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2017 DIGILAW 51 (GAU)

Urmila Jain v. Ambica Prasad (Dr. )

2017-01-10

SUMAN SHYAM

body2017
JUDGMENT AND ORDER : Suman Shyam, J. Heard Mr. S. Ali, learned counsel for the revision petitioners. Also heard Mr. H.K. Deka, learned senior counsel appearing for the respondent. 2. This revision petition has been preferred against the judgment and order dated 02.01.2016 passed by the Court of learned Civil Judge No.3, Kamrup(M) at Guwahati in connection with Title Appeal No.33/2011 allowing the appeal filed by the plaintiff/respondent, thereby reversing the judgment and decree dated 25.02.2011 passed by learned Munsiff No.1, Kamrup(M), Guwahati in Title Suit No.434/2008 dismissing the suit filed by the respondent. 3. The brief factual matrix of the case is that the plaintiff/respondent was the original owner in respect of a plot of land measuring 1 Katha 6 Lechas covered by dag No. 3262 of K.P. Patta No. 514 of Sahar Guwahati under Ulubari Mouza. The respondent had exchanged his aforementioned plot of land for another land measuring 2 kathas 1 Lecha owned by his brother Sri Ranjit Prasad by executing a registered deed of exchange dated 23.04.1975. Upon the aforesaid land measuring 2 Kathas 1 Lecha, there was a RCC building named "Guwahati Market" covered by Holding No. 13 of Ward No. 33 of the Guwahati Municipal Corporation (GMC). Earlier, the elder brother of the respondent i.e. Sri Ranjit Prasad had let out the ground floor of the said building to several tenants. The defendant No. 1 and Mahendra Jain i.e. the predecessor-in-interest of the defendant Nos. 2 to 4, had also jointly entered as tenant under Ranjit Prasad in respect of one room measuring 12' x 24' marked as "Room No. A/1" located at the ground floor of the building, which is the suit premise. The tenancy had commenced in the year 1977 on condition of paying monthly rent of Rs. 775/- which amount would fall due on the 1st day of the succeeding month as per the English calendar. After the death of Mahendra Kumar Jain, his legal heirs i.e. the present petitioners continued with the tenancy. Ranjit Prasad had earlier instituted Title Suit No.7/2003 against the petitioners seeking a decree of ejectment. The petitioners had contested the suit by filing written statement. After the death of Mahendra Kumar Jain, his legal heirs i.e. the present petitioners continued with the tenancy. Ranjit Prasad had earlier instituted Title Suit No.7/2003 against the petitioners seeking a decree of ejectment. The petitioners had contested the suit by filing written statement. After framing of issues the suit was fixed for trial but none of the plaintiff's witnesses in Title Suit No. 7/2003 appeared for cross-examination and the plaintiff therein (Ranjit Prasad) also did not pursue the suit as a result of which the same ended in dismissal on 08.09.2008. During the pendency of Title Suit No. 7/2003 the respondent had issued a notice dated 19.02.2007 calling upon the petitioners to attorn the tenancy in his favour and pay up the rent along with electricity bills. The petitioners had received the notice dated 19.02.2007 but did not respond to the same by paying the rent. 4. The respondent's case is that by virtue of the deed of exchange dated 23-04-1975, he had become the owner of the land and the building housing the suit premise but he had allowed his brother Ranjit Prasad to collect the rent. However, since February 2007, Ranit Prasad stopped collecting the rent as a result of which he had issued the Notice dated 19-02-2007 demanding rent from the petitioners. The respondent's further case is that he has retired from service as the Head-of-the Department of Plastic Surgery, Gauhati Medical College. His wife, who is also a doctor (Pathologist), has retired and was desirous of establishing her own clinic in the suit room. Hence, the suit premise was required for his own use. Situated thus, the respondent had instituted the present Title Suit No.434/2008 against the petitioners as defendants seeking a decree of ejectment on the twin grounds of being defaulter in payment of rent and also on the ground of bona fide requirement of the suit premises. 5. The petitioners had contested Title Suit No.434/2008 by filing written statement denying the case of the respondent. The stand of the petitioners, in brief, was that their landlord was Ranjit Prasad, who has also been declared as the owner of the suit room by the decree passed in Title Suit No. 7 of 2003. Since the suit filed by Ranjit Prasad was still pending as on 19-02-2007, hence, there was no scope for the petitioners to attorn the tenancy in favour of the respondent. 6. Since the suit filed by Ranjit Prasad was still pending as on 19-02-2007, hence, there was no scope for the petitioners to attorn the tenancy in favour of the respondent. 6. On the basis of the pleadings of the parties the following issues were framed by the trial Court :- "1. Whether the suit is maintainable ? 2. Whether there is any cause of action for the suit ? 3. Whether the present suit is barred under the provision of res judicata and liable to be dismissed ? 4. Whether the suit is bad for non joinder of necessary party ? 5. Whether the suit is bad for acquiescence, waiver and principle of estoppels ? 6. Whether the plaintiff is the owner in respect of the suit premises ?/Whether the plaintiff has superior title than Ranjit Prasad with respect to the tenanted premises ? 7. Whether the defendants are tenants under the plaintiff in respect of the suit premises ? If so, whether the defendants are under obligation to pay rent to the plaintiff ? 8. Whether the defendants have defaulted in payment of rent to the plaintiff ? 9. Whether the suit premise is bona fide required by the plaintiff ? 10. Whether the plaintiff is entitled to the decree as prayed for ?" 7. During trial, both parties led evidence in support of their respective cases. On the basis of the materials available on record the learned trial Court had decided all the issues except Issue No. 7 in favour of the respondent while the issue No. 9 was struck off. Notwithstanding the same, the suit filed by the respondent was dismissed by the judgment and decree dated 25.02.2011 by holding that even if the petitioners were defaulter in payment of rent, they were not defaulters under the respondent but in respect of Ranjit Prasad, who was their landlord. 8. Being aggrieved by the judgment and decree passed by the trial Court, the plaintiff as appellant had preferred Title Appeal No.33/2011 before the Court of Civil Judge No.3, Kamrup(M), Guwahati which was allowed by the learned Lower Appellate Court by the judgment and decree of reversal dated 02.01.2016 which is under challenge in the present revision petition. 9. Mr. 8. Being aggrieved by the judgment and decree passed by the trial Court, the plaintiff as appellant had preferred Title Appeal No.33/2011 before the Court of Civil Judge No.3, Kamrup(M), Guwahati which was allowed by the learned Lower Appellate Court by the judgment and decree of reversal dated 02.01.2016 which is under challenge in the present revision petition. 9. Mr. S. Ali, learned counsel for the petitioners, submits that the predecessor of the petitioners was put in possession in respect of the tenanted premises not by the respondent but by his brother Ranjit Prasad who had also been collecting the rent from the petitioners. Ranjit Prasad had also instituted Title Suit No.7/2003 for ejectment of the petitioners from the tenanted premises in his capacity as the landlord. Therefore, it is evident that Ranjit Prasad was the landlord of the petitioners for all purpose and intent. The notice of attornment of tenancy dated 19.02.2007 having been issued during the pendency of Title Suit No. 7/2003, there was no scope for the petitioners to respond to the same by paying the rent to the respondent. According to Mr. Ali, the petitioners had never defaulted in making payment of the rent to their landlord Ranjit Prasad and hence, they cannot be evicted from the tenanted premises on the ground of being a defaulter. 10. Referring to Section 109 of the Transfer of Property Act, 1882, Mr. Ali submits that the notice of attornment issued by the respondent had never been confirmed by the original landlord i.e. Ranjit Prasad thereby creating a state of confusion. Since the petitioners were depositing the rent in the Court, hence, in the facts and circumstances of the case, they cannot be held as defaulters. Mr. Ali further submits that in the deed of exchange dated 23.04.1975 there is no mention of the building. Rather, in Schedule-'Ka' of the said deed the building has been specifically excluded. As such, the respondent is evidently not the owner of the building and therefore, cannot claim any right under Section 109 of the Transfer of Property Act. 11. Resisting the argument advanced on behalf of the petitioners, Mr. Rather, in Schedule-'Ka' of the said deed the building has been specifically excluded. As such, the respondent is evidently not the owner of the building and therefore, cannot claim any right under Section 109 of the Transfer of Property Act. 11. Resisting the argument advanced on behalf of the petitioners, Mr. H.K. Deka, learned senior counsel appearing for the respondent, submits that upon receipt of the notice of attornment of tenancy dated 19.02.2007 the petitioners went on depositing the electricity charges with the respondent thereby establishing beyond doubt that the petitioners had not only accepted the respondent as their landlord but had also attorned the tenancy in his favour. Such being the position, the issue as to whether the respondent was the landlord and therefore, entitled to receive the rent of the tenanted premises with effect from the date of issuance of the notice of attornment of tenancy dated 19.02.2007 does not survive for consideration in the present case. Mr. Deka further submits that since the petitioners have not paid the rent to the respondent even after the receipt of the notice of attornment dated 19.02.2007, hence, they had clearly become defaulters in the eye of law and hence, liable to be evicted by a decree of ejectment. As such, submits, Mr. Deka, the learned Lower Appellate Court had rightly passed the decree of reversal by taking note of the aforementioned facts emerging from the record. 12. Placing reliance upon the decisions of this Court in the case of On the death of Shefali Roy Choudhury Her Heirs Shyamali Roy Choudhury & others v. Bibekananda Roy, reported in 1997 (3) GLR 7 as well as Radio Talkies Equipment Company v. Debadas Ghosh and others reported in 2001 (2) GLT 471 Mr. Deka submits that in a suit filed under the provision of Assam Urban Areas Rent Control Act, 1972 the burden of proof that the tenant is not a defaulter is upon the tenant. In the present case, the petitioners have not only failed to discharge that burden but they have also defaulted in payment of rent even during the pendency of the suit. 13. Referring to the decision of the Hon'ble Supreme Court rendered in the case of Ambica Prasad v. Mohd. Alam and another reported in (2015) 13 SCC 13 Mr. In the present case, the petitioners have not only failed to discharge that burden but they have also defaulted in payment of rent even during the pendency of the suit. 13. Referring to the decision of the Hon'ble Supreme Court rendered in the case of Ambica Prasad v. Mohd. Alam and another reported in (2015) 13 SCC 13 Mr. Deka submits that the present case is covered by the aforementioned decision of the Supreme Court wherein the dispute was pertaining to the present plaintiff and the other tenants who had taken a similar plea of defence, which was rejected by the Apex Court. 14. I have considered the submissions made by learned counsel for the parties and have also gone through the materials available on record. It is not in dispute that the brother of the respondent, viz. Ranjit Prasad had been collecting the rent from the predecessor-in-interest of the petitioners and thereafter, from the petitioners in respect of the tenanted premises until the month of February, 2007. It is also not in dispute that by means of a registered deed of exchange dated 23.04.1975, the land previously belonging to Ranjit Prasad was exchanged by the respondent for his own plot of land measuring 1 Katha 6 Lechas. The deed of exchange has been duly exhibited as Exhibit-1 and the said fact has also been confirmed by Ranjit Prasad himself while deposing as PW-3. It is also not in dispute that the respondent had obtained mutation in his name over Holding No. 13 by order dated 09-09-2006. Since the RCC building is standing over the land measuring 2 Kathas 1 Lecha acquired by the respondent on the strength of the exchange deed dated 23-04-1975, it is obvious that he had also become owner of the building together with land mentioned therein. As such, it is evident that with effect from 23.04.1975 the respondent had become the absolute owner in respect of the tenanted premises. 15. It is also not in dispute that by issuing the notice dated 19.02.2007 (Exhibit-8) the respondent had called upon the petitioners to attorn the tenancy in his favour and pay up the rent. However, despite receipt of the notice the petitioners did not pay the rent to the respondent but continued to deposit the same in the Court. 15. It is also not in dispute that by issuing the notice dated 19.02.2007 (Exhibit-8) the respondent had called upon the petitioners to attorn the tenancy in his favour and pay up the rent. However, despite receipt of the notice the petitioners did not pay the rent to the respondent but continued to deposit the same in the Court. What would be significant to note herein is that with effect from the month of March 2007 the petitioners admittedly had been paying the electricity charges to the respondent but had deposited the rent in Court. Electricity charge in respect of the tenanted room is also an incidence of tenancy the payment of which is the statutory obligation of the tenant. There is no valid explanation as to why the electricity charges were deposited with the respondent if he was not treated as the owner of the premise by the petitioners. It is not the case of the petitioners that there was any dispute between the two brothers i.e. Ranjit Prasad and the respondent as regards the claim of title over the tenanted premises nor is it the case of the petitioners that both the brothers were simultaneously making demand from payment of rent in respect of the tenanted premises. If that be so, it is clear that immediately after receipt of the notice dated 19.02.2007 the petitioners had attorned the tenancy in favour of the respondent by accepting him as the owner of the building. It is true that on the date of issuance of the notice dated 19-02-2007 Title Suit 7 of 2003 instituted by Ranjit Prasad was pending before the court but it is also equally true that the plaintiff in Title Suit No. 7/2003 did not pursue the suit to the knowledge of the present petitioners. It was therefore, self evident that Ranjit Prasad has ceased to operate as the landlord and the respondent being the actual owner of suit premise had become the landlord. Hence, over and above the electricity charges, the petitioners ought to have paid the rent with effect from the month of March 2007 also to the respondent which they have failed to do. 16. Hence, over and above the electricity charges, the petitioners ought to have paid the rent with effect from the month of March 2007 also to the respondent which they have failed to do. 16. In the case of Ambica Prasad (supra) the Hon'ble Supreme Court had the occasion to deal with a similar question arising between the present respondent and some of the other tenants occupying different portions of the RCC building standing over the aforementioned land measuring 2 Katha 1 Lecha which was exchanged by the deed of exchange dated 23.04.1975. The tenants in the aforementioned case had also denied knowledge of the exchange deed dated 23.04.1975 and had contended that Ranjit Prasad was the landlord and not the present respondent. It was the contention of the tenants therein that since Ranjit Prasad had refused to accept the rent from them with effect from the month of March 2007 they had deposited the same in the Court and hence, they cannot be termed as defaulters. Rejecting such contention raised by the defendants therein, the Supreme Court had made the following observations :- "14. The High Court appears to have taken a very narrow meaning and interpretation of the expression 'landlord' as defined in the Assam Rent Act. The finding recorded on that score to the effect that there exists no relationship of landlord and tenant is not in accordance with the true meaning of the term 'landlord'. This aspect of the law has not been considered by the High Court. On the contrary, the High Court proceeded on the basis that the relationship of 'landlord and tenant' has not been established although the ownership of the appellant by virtue of the deed of exchange has neither been denied nor been disputed by the respondent-tenant. Even assuming for the sake of argument that the elder brother of the appellant was acting as a landlord by receiving rent, it will not debar the original owner from filing a suit for eviction not only on the ground of personal necessity but also on the ground of default when it has come in evidence that the respondent on many occasions went to the appellant to pay rent but the latter refused to receive the rent. Moreover, admittedly, the respondent-tenant was paying electricity and other charges of the tenanted premises to the appellant. 15. Moreover, admittedly, the respondent-tenant was paying electricity and other charges of the tenanted premises to the appellant. 15. On the question of tenancy, both the trial court and the High Court have not considered the provision of Section 109 of the Transfer of Property Act. "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 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 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. From perusal of the aforesaid Section, it is manifest that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The Section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the 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 can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment. 16. As noticed above, the respondent-tenant on many occasions approached the appellant, the transferee, owner and the landlord to receive the rent. Further, admittedly, the electricity charges of the tenanted premises were paid by the tenant to the present appellant. Non-consideration of subsequent tenancy agreement executed by the erstwhile owner namely the brother of the appellant will not come in the way of the present appellant to seek eviction of the tenant on the ground of personal necessity as also on the ground of non-payment of rent. The approach of the High Court reversing the appellate court's finding cannot be sustained in law." 17. The law laid down by the Hon'ble Supreme Court in the case of Ambica Prasad (supra), in my view, would be squarely applicable in the facts of the present case as well. From the observations made by the Supreme Court, it is thus clear that upon execution of the registered deed of exchange, the respondent had become the owner of the tenanted premise and therefore, had stepped into the shoes of the transferor i.e. Ranjit Prasad. By virtue of section 109 of the Transfer of Property Act, all rights and liabilities of Ranjit Prasad over the tenanted premise stood automatically transferred upon the respondent. In any case, the fact that the respondent was the true owner of the tenanted premise on the date of issuance of the Notice dated 19-02-2007 was established beyond any doubt. 18. Referring to the order dated 08-09-2008 passed in Title Suit No. 7/2003, although an attempt has been made by the petitioners to contend that in view of the finding recorded in respect of the issue No. 8, Ranjit Prasad has to be treated as the owner of the suit premise, the said argument, in my view, cannot be accepted firstly because the Trial court has recorded the said finding without there being any evidence on record to support the same. Secondly, the suit having been ended in dismissal, there was no decree of declaration passed in favour of Ranjit Prasad in Title Suit No. 7/2003. Therefore, regardless of whether there had been attornment of tenancy or not, immediately upon receipt of the Notice dated 19-02-2007 issued by the respondent, the petitioners/tenants were under a legal obligation to pay the rent to the respondent. The same not having been done, the petitioners had become defaulters in the eye of law. 19. There is yet another aspect of the matter which deserves mention herein. Record reveals that the petitioners had deposited the rent in the Court in their own name and not in the name of their landlord. It is also evident from record that there was no deposit of rent in the Court for the months of March and April 2007. Thereafter, again for the months of May and June 2007, there was no deposit of rent in the Court. 20. Law is settled that deposit of rent in Court has to be preceded by a valid tender of the same to the landlord and it is only when the landlord declines to accept the rent that the same can be deposited in Court. That apart, the deposit of rent in the court has to be made in the name of the landlord along with steps for issuance of notice to the landlord. 21. Since the decision of this court rendered in the case of Abdul Matin Choudhury & Ors. v. Nilyananda Dutta Banik reported in 1997 (II) GLT 590 law is well settled that the tenant would be obliged to deposit the rent in the court even during the pendency of the suit for ejectment. By relying upon the case of Abdul Matin Choudhury (supra), this court had held in the case of Birendra Nath Sarma v. Arunamayee Bishaya reported in 2005 (Suppl) GLT 467, that non-payment of rent even during the pendency of proceeding under the Act of 1972 for the period subsequent to the filing of the suit would render the tenant as a defaulter and liable to be evicted. Again, in the case of Bansal Traders and Ors. Again, in the case of Bansal Traders and Ors. v. Nandalal Gattani reported in 2006(3) GLT 715, this court has held that Section 5(4) of the Act of 1972 was mandatory and deposit of rent in court without taking steps to issue Notice to landlord would amount to non-compliance of Section 5(4) of the Act of 1972. What therefore, crystallizes from the aforementioned judicial pronouncements is that if there is default on the part of the tenant in deposit of rent strictly in accordance with the requirement of Section 5(4) of the Act, during the pendency of the proceeding even for a single month, even in that case, the tenant would become a defaulter in the eye of law and the Court would be authorised to take cognizance of the same and pass a decree of ejectment. 22. As noted above, in the present case, both the Courts below have recorded concurrent finding of fact not only holding that the petitioners have deposited the rent in the court in their own name but also holding that they have defaulted in depositing the rent in the Court on a number of occasions even during the pendency of the suit. Such concurrent finding of fact is based on cogent evidence available on record and the said finding has also not been assailed by the petitioners. In the instant case, the rent having been deposited in the name of the defendants themselves, the same cannot be accepted as valid deposit within the meaning of the Act of 1972. In such view of the matter I am of the unhesitant opinion that the petitioners have become defaulter in the eye of law on such count as well, rendering them liable to be evicted from the tenanted premises. 23. Coming to the question of bona fide requirement of the suit premises by the plaintiff, it may be noted here-in that the issue number 9 was framed by the Trial court on the said question but the aforesaid issue was eventually struck down by the learned trail court observing that since the plaintiff has been held to be not the landlord of the defendants, the issue did not arise for consideration. The lower appellate court has not recorded any finding in respect of issue No. 9 nor has the plaintiff preferred any appeal in respect thereof. The lower appellate court has not recorded any finding in respect of issue No. 9 nor has the plaintiff preferred any appeal in respect thereof. Hence, I do not deem it necessary to go into that aspect of the matter in the present proceeding. 24. For the reasons stated herein above, I am of the view that there is no merit in the revision petition and the same is accordingly dismissed. However, having regard to the facts and circumstances of the case, there will be no order as to cost.