Ram Prakash Ghai v. Karam Chand And Another

B. Dayal, J.:— This is a defendant tenant's Second Appeal. The plaintiff purchased a house on the 31st of October, 1952 from one Sh. Abdul Karim. At that time the defendants were occupying the house. The plaintiff served a notice in which he stated that the defendants were not tenants and claimed compensation for use and occupation and asked them to vacate the house and in the alternatives terminated the tenancy. The defendants sent rent by money-order at Rs. 6-4-0 per month from the last of November, 1952 till the date of notice. But they did not send rent which was due before the 1st of November, 1952. The plaintiff filed a suit for the ejectment of the defendants and contended that the defendants were occupying the house without any right and claimed compensation at Rs. 15 per month. Defendant No. 1 claimed to be a tenant and alleged that the rent agreed with the previous owner was at Rs. 6-4-0 per month which he had sent by money order to the plaintiff for the period since he became owner thereof, that he was not liable to ejectment and that defendant No. 2 was his sister and was living with him. Defendant No. 2 supported defendant No. 1. The trial court framed several issues but since only two points have been raised in this Second Appeal here, it is not necessary to refer to others. The one question raised by the learned counsel for the plaintiff-respondent in this Court is that the defendant was not a tenant. On this question, the trial court held that defendant No. 1 was a tenant and this finding has been confirmed by the lower appellate court. The other question raised by the learned counsel for the appellant is that the appellant had not made any default within the meaning of Sec. 3 of the U.P (Temporary) Control of Rent and Eviction Act. The court below was therefore, not right in decreeing the suit for ejectment. The trial court on this question held that the defendant did not commit any default and he was not liable to ejectment. The lower appellate court has reversed that finding and has given a decree for ejectment holding that the defendant had committed a default.

2. This appeal originally came up for hearing before one of us and learned counsel for the appellant relied upon the case of Bachchan Lal v. Ram Asrey 1960 A.L.J 147., decided by a learned single Judge of this Court in which the following observation was made:

“It is true that under the sale agreement the previous owner Nandrani had assigned to the new landlord the right to recover the amount of rent which was due to her, but this was merely an assignment of an actionable claim or “chose in action” as it is called under the English law. In respect of this amount he was the tenant's creditor but could not claim it as rent, on a sale or transfer of the property. If the previous owner transferred to his successor the right to collect arrears of rent the latter is entitled to recover this amount as a creditor but not as a landlord. On the tenant's refusal to pay he can file a suit for the recovery of the amount but he cannot treat the tenant as “rent defaulter,” and cannot treat his refusal as a “default” within the meaning of Sec. 3(1)(a) of the U.P (Temporary) Control of Rent and Eviction Act for there can be not rent without a relationship of landlord and tenant.”

3. In view of this ruling, the case was referred to a Division Bench and this is now being heard by this Bench.

4. On the first question whether the defendant is a tenant or not the concurrent finding of both the courts be low appears to be a pure finding of fact. Both the courts below have found that at the time when the plaintiff purchased the property, Sheikh Abdul Karim served a notice on the defendant informing him of the transfer and asking him to pay all the arrears and future rent to the plaintiff. This document is Ext. A-4 on the record dated the 31st of October, 1952. It may be noted here that at the time of sale there was a term in the sale deed that the plaintiff would be entitled to recover all the arrears of rent from the defendant. The plaintiff himself gave a notice, through a lawyer, dated the 23rd of March, 1953 which is Ext. A-3 on the record. In the first paragraph of the notice he stated “You are occupying a portion of House No. 5 Dhanda Lakhond Road, Dehra Dun as a tenant of my aforesaid client.” Thus both the transferor and the plaintiff admitted the defendant to be a tenant. The subsequent assertion by the plaintiff that the defendant was not a tenant has not been accepted by the courts below. Since there is evidence on which findings could be based, this Court is bound in second appeal to accept this finding as a finding of fact. We, therefore, see no reason to differ from that conclusion arrived at by the lower appellate court.

5. On the second question, which is a pure question of law, the main contention raised by the learned counsel for the defendant appellant is that the demand under Sec. 3(1)(a) of the U.P (Temporary) Control of Rent and Eviction Act has to be made by a landlord for the rent due to himself and he cannot make a demand for the rent due to somebody else. Thus although the plaintiff has purchased the arrears of rent from the previous owner, he cannot make a demand for it under the aforesaid section. Sec. 3(c) of the said Act (as it stood before amendment) is as follows:—

“that the tenant has wilfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from the landlord.”

6. Since notice of this case was served on the 23rd of March, 1953, the section, as it stood at that time, would be applicable and the later amendment could not be looked at for finding out—the validity of the notice and at that time the section stood as quoted above. From the above section, it would be seen that the responsibility is of the tenant to pay “any” arrear of rent to the landlord when a demand is made. The word ‘landlord’ has also been defined in the Act and the definition is as follows:

“landlord means a person to whom rent is payable by a tenant in respect of any accommodation and includes the agent, attorney, heir or assignee of the landlord and a tenant in relation to his sub-tenants.”

7. An assignee or a transferee of the original landlord is also a landlord within the meaning of that term. The plaintiff in this case having purchased the house as well as the arrears of rent was an assignee of the landlord and was also the landlord within the meaning of Sec. 3(a) of the Act. When he demanded the arrears of rent and the defendant failed to pay the whole of the arrears of rent but offered only a portion of it payable subsequent to October, 1952, he did wilful default to make payment. The contention of the learned counsel for the appellant that the arrears of rent which were due to the previous landlord were not arrears of rent in then hands of the plaintiff, does not stand to reason. So far as the defaulting tenant is concerned, it was an arrear of rent due against him. Whether that arrear of rent was now payable to the plaintiff or to his predecessor-in-title is wholly immaterial. Every arrear of rent is also a debt and it is transferable as a debt. But that does not mean that the character of the liability changes because of its having been transferred from one hand to another. The method of transfer cannot change the nature of the liability. If the plaintiff as a transferee and landlord of the defendant was entitled to realise this amount, which was an arrear of rent and made a valid demand, the defendant was bound to pay the same within one month of the notice of demand. If he failed to pay the same, he was certainly a wilful defaulter. The very fact that he paid a part of it and did not pay the rest of it conclusively shows that he deliberately did not pay the balance and was therefore a wilful defaulter.

8. Learned counsel for the appellant strenuously contended that under Sec. 109 of the Transfer of Property Act a transferee from the previous owner is not entitled to realise arrears of rent and consequently argued that whatever the plaintiff is claiming for the period before his purchase cannot be called arrears of rent in his hand. Sec. 109 deals with those rights of a transferee which he obtains as a matter of law. It does not prohibit the transfer of claim for arrears of rent in favour of a transferee of the property. The proviso to the section on which reliance has been placed is as follows:

“Provided that the transferee is not entitled to arrears of rent due before the transfer………”

9. This proviso also speaks of the liability of the tenant before the transfer as arrears of rent. Though it further goes to say that the transferee merely by virtue of his transfer is not entitled to those arrears of rent, but that is no ground for holding that this amount will not remain as arrears of rent if this is by an agreement transferred to the purchaser. The liability which is an arrear of rent will remain as an arrear of rent and the plaintiff when suing for it has to prove that it was due as an arrear of rent against the tenant for a certain period. We are therefore unable to agree with the view taken by the learned single Judge in the case of Bachchan Lal v. Ram Asrey, that the amount of rent claimed by the plaintiff for a period before his purchase was not arrear of rent. Even under the amended Sec. 3(1)(a) of the Act the position is not different. That sub-section runs as follows:

“that the plaintiff is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of the notice of demand.”

10. In view of the definition of the word ‘landlord’ contained in this Act, the transferee of the house who has purchased the arrears of rent also can make a demand and the amount of liability will not lose its character as arrear of rent.

11. In the result the appeal is dismissed with costs and the decree of the court below is confirmed.

Appeal dismissed.