Ram Saran Sharma v. Smt. Kamla Acharya

R.R Yadav, J.:— The instant second appeal is preferred by the tenant defendant appellant, against the judgment and decree dated 03.4.99, passed by Additional District Judge No. 4, Jaipur City, Jaipur, in Regular First Appeal No. 93/97.

2. It is to be noticed that after receipt of notice in the present second appeal, the landlord plaintiff respondent, filed cross-objection, under Order 41 Rule 22, CPC. I propose to decide second appeal as well as the cross-objection, by a composite order.

3. Briefly stated, the facts of the present second appeal and cross-objection are as follows:—

4. A suit for eviction, under the provisions of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (Act No. 17 of 1950) (hereinafter referred as “the Act No. 17 of 1950”), was filed on the ground of second default in payment of rent and personal bona fide necessity, as envisaged under clauses (a) and (h), respectively, of sub-section (1) of Section 13 of the said Act. In ‘written-statement, the tenant defendant appellant denied the relationship of landlord and tenant, and claimed himself to be the owner of the property in dispute, on basis of adverse possession for being in continuous and uninterrupted possession for a period of more than 13 years.

5. On the basis of the pleadings of the parties, 11 issues were framed by the learned trial court, out of which, all the issues are decided against the tenant defendant appellant by both the courts below, except Issue No. 2, which relates to the relationship of landlord and tenant. Issue No. 2 is decided in favour of the tenant defendant appellant, by both the courts below.

6. The learned trial court, by its judgment and decree dated 03.10.97, decreed the plaintiff's suit for recovery of possession and for mesne profits at Rs. 45/- per month. The learned trial court decided Issues Nos. 1 and 9, in favour of the landlord plaintiff respondent and against the defendant and held that the landlord plaintiff respondent became the owner of the property in dispute, by virtue of registered gift-deed, made in her favour, by Smt. Sahodara Devi, and the case of the tenant defendant appellant as regards acquiring ownership by way of adverse possession, was rejected by learned trial court. Issue No. 3, as regards second default was also decided in favour of the landlord plaintiff respondent. Issues Nos. 4, 5 and 6, as regards reasonable and bona fide necessity, comparative hardship and partial eviction, were decided in favour of the landlord plaintiff respondent. However, Issue No. 2, as regards relationship of landlord plaintiff respondent and tenant defendant appellant, was decided by learned trial court, in negative, against the plaintiff and it was held that for want of proof of service of notice on the defendant as regards derivative title by virtue of giftdeed and attornment of tenancy could not be proved and thus, the relationship of landlord and tenant between the plaintiff and defendant was not created. The learned trial court decreed the plaintiff's suit for recovery of possession and mesne profits, on the basis of her title over the property in the dispute.

7. Aggrieved against the judgment and decree dated 03.10.97, passed by learned trial court, the tenant defendant appellant preferred a regular appeal No. 93/97, before the first appellate court, which was dismissed by first appellate court, vide its judgment and decree dated 03.4.99 and the judgment and decree passed by trial court, was affirmed. The cross-objection, filed by landlord plaintiff respondent was also dismissed by first appellate court. The learned first appellate court concurred with the findings of the trial court, on all issues, mentioned hereinabove.

8. The present second appeal was admitted on 21.10.99, on the following substantial question of law:

“Whether in absence of relationship of landlord and tenant between the plaintiff and defendant, the decree of eviction could have been passed against the tenant. The aforesaid question arises in the peculiar facts and circumstances of this case since it transpires that the landlord to whom the defendant-appellant had been paying rent, expired and thereafter by virtue of a deed of gift the plaintiff-respondent filed a suit for eviction against the defendant-appellant.”

9. I have heard the learned counsel for the parties, at length.

10. Perused the judgments, passed by both the courts below.

11. I have also gone through the record, requisitioned from the courts below.

12. It is urged by the learned counsel, appearing on behalf of tenant defendant appellant that in & suit for eviction, under the provisions of Act No. 17 of 1950, the question relating to title of premises should not be decided, while deciding a suit for eviction, on the grounds, enumerated under clauses (a) to (1) of sub-section (1) of Section 13 of Act No. 17 of 1950. It is submitted by the learned counsel for the tenant defendant appellant, with emphasis that in view of the findings, recorded by both the courts below concurrently that there is no relationship of landlord and tenant between the parties, the suit ought to have been dismissed on this ground alone.

13. The aforesaid argument, raised by the learned counsel for the tenant defendant appellant, is opposed by the learned counsel, appearing on behalf of the landlord plaintiff respondent. It is urged by him that the law for attornment has been dealt with under Section 109 of the Transfer of Property Act, 1882 (hereinafter to be referred as the Act of 1882), which, inter alia, provides that the transferee, in the absence of a contract to the contrary, shall possess all the rights as to the property or part transferred. According to the learned counsel for landlord plaintiff respondent, attornment by a tenant is not a condition precedent, to create relationship of landlord and tenant between the transferee/landlord and the existing tenant and to give validity to the transfer. According to him, Section 109 of the Act of 1882 does not, contemplate otherwise. Section 28 of Act No. 17 of 1950, provides that the provisions of the said Act shall be in addition to and not derogatory of any other law on the subject, for the time being in force, in the whole or any part of Rajasthan. Thus, Act No. 17 of 1950 does not in any way override the provision of general law, including the provisions of Act of 1882, but it supplements the same. In support of his aforesaid contention, he placed reliance on decisions, Babu Lal v. Kanhaiya Lal, (1), Smt. Kalawati v. Smt. Damyanti (2), Hazi K. Ashainer v. Chacko J. (3), Puleen Bihari v. Leela Day (4) and Mahendra Raghunath Das v. V. Bikaji (5).

14. I have given my anxious thoughtful consideration to the rival contentions, raised at the Bar.

15. I am of the view that the question of law, formulated in the instant second appeal, quoted hereinabove and the question, involved in the cross-objection, need to be considered in the factual backdrop that the suit for eviction has been instituted on the grounds, envisaged under Section 13(1)(a) and (h) of Act No. 17 of 1950, pleading relationship of landlord and tenant, therefore, the question that necessarily arises for consideration, is whether in the facts and circumstances of the present case, the relationship of landlord and tenant subsisted between the plaintiff and the defendant and whether the finding on Issue No. 2, of the courts below, is wholly perverse and not sustainable in law. The substantial question of law, formulated in the present second appeal, has reference of the gift-deed, executed in favour of the landlord plaintiff respondent as also of the payment of rent by the tenant defendant appellant, to the previous landlord, from whom, the landlord plaintiff respondent acquired title. Attornment of tenancy on alienation of property by the erstwhile landlord, to the transferee landlord by virtue of gift-deed, is the moot question to be decided with reference to the law of attornment and the evidence on record.

16. It is not disputed before me that the tenant defendant appellant was paying rent to Smt. Sahodara Devi (since deceased) and he was a tenant of her. The registered gift-deed dated 04.10.75, executed by Smt. Sahodara Devi, in favour of the landlord plaintiff respondent, alienating the suit-property in her favour, has been held to be proved by both the courts below, in its findings on Issues Nos. 1 and 9 and the landlord plaintiff respondent, by virtue of gift-deed became the absolute owner of the suit-property. The findings of the courts below on Issues Nos. 1 and 9 have attained finality for there being no substantial question of law having been arisen in the second appeal, on the said finding. The answering landlord plaintiff respondent is not called upon under sub-section (5) of Section 100, CPC, to answer the finality of the finding, recorded by both the courts below, on Issues Nos. 1 and 9, as no substantial question of law has been formulated on the point.

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. 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 (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. Yakoob (6), wherein, it is ruled that tenant has no 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 intigra.

19. In my considered opinion, both the courts below failed to appreciate the law of attornment, in correct perspective and did not at all consider the settled principle of law, as discussed hereinabove. From perusal of record requisitioned from the learned trial court, the landlord plaintiff respondent proved the copy of the notice (Ex. 1), informing the tenant defendant appellant about the gift-deed, executed in her favour, further requiring the payment of rent. The postal receipt (Ex. 2) evidenced that the notice (Ex. 1) was sent under registered post and in the facts and circumstances of the case, there was presumption of service of notice (Ex. 1) for the reason that it was not the case of the tenant defendant appellant that the notice was not properly addressed. The denial of receipt of notice by the tenant defendant appellant cannot by itself be sufficient to presume otherwise than the meaning of Section 27 of the General Clauses Act. The finding of the court below, on Issue No. 2 being wholly perverse, is liable to be set aside and the issue ought to have been decided in favour of the landlord plaintiff respondent.

20. As a result of the aforementioned discussion, the instant second appeal is hereby dismissed with costs, assessed to Rs. 2300/- and the cross objection, filed by the landlord plaintiff respondent, is allowed and the suit filed by her, is decreed in toto.