Jharkhand High Court
Hira Sao @ Hira Lal Sah vs Md. Alam And Anr. Reported In 2015 Air Scw ... on 23 July, 2018
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 466 of 2015
...
Hira Sao @ Hira Lal Sah ...........Appellant
Vrs.
Gita Devi ...........Respondent
CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
For the Appellant : Mr. J. K. Pasari , Adv.
For the Resp. : Mr. Birendra Kumar, Adv.
....
06/23.07.2018 Heard learned counsel for the appellant as well as respondent.
The appellant is original defendant.
The dispute relates to tenancy. Both the Courts below have given concurrent finding regarding existence of landlord and tenant relationship and default in making payment of rent accordingly, decree of eviction has been passed by the Trial Court and the same has been affirmed by the First Appellate Court.
Against concurrent findings of both the Courts below, the present Second Appeal has been filed by legal heirs of the original defendant.
Plaintiff has filed a suit being Eviction Suit No. 73 of 2003 for eviction from tenanted premises on the ground of default in payment of rent.
The case of the plaintiff is that Ayodhya Prasad Sao, Gouri Shankar Sao and Shiba Prasad Sao are original owner of the land. Both parties have accepted them as owner of the land.
As per the plaintiff, Gouri Shankar Sao, Bhagirathi Devi wife of Ayodhya Prasad Sao sold the suit property in the year 1960-61 to one Ram Mohan Agarwal, who, in turn, sold the suit premises to the plaintiff through sale deed dated 20.11.1985 as Ext. 4. On the strength of this purchase, plaintiff has filed a Title (Eviction) Suit No. 24 of 1987, which was dismissed for non-prosecution as the case was not pursued by the plaintiff.
The plea of the plaintiff is that since the tenant was agreed to evict the suit premises, the case was not pursued. Thereafter the present Eviction Suit No. 73 of 2003 has been filed and in sequence of that the present Second Appeal has been filed.
Defendant has appeared and contested the suit. The case of the defendant is that his father inducted in tenancy through Ayodhya Prasad Sao and his brothers and he paid rent till February, 1951. It is further case of the defendant that the suit premises in question had been sold orally by Ayodhya Prasad Sao to father of the present appellant/original defendant and as such, -2- he was holding the property as owner of land. In alternate, he has pleaded that since his father was in possession of land without paying rent since 1951, he was claiming title on the suit property on the basis of adverse possession as he has perfected the title by prescription and became owner of the land.
Both, i.e. the Trial Court and the First Appellate Court have given the finding that there is relationship of landlord and tenant and there is default in making payment of rent. Accordingly, the suit has been decreed and First Appellate Court has affirmed the decree.
Now in the Second Appeal, the appellant has challenged the order mainly on the ground that as the defendant has never paid rent after 1951, he is not in the status of tenant and there was no landlord in existence.
This argument of the appellant is not tenable only for the reason that by non-payment of rent, status of tenant cannot be changed. If tenant stops paying rent, relationship of landlord and tenant will not be seized, rather this is a ground for eviction.
Second plea has been taken by the appellant that there was oral sale of the land to his father, both the Courts below recorded finding that this fact has not been proved as there cannot be any oral transfer of immovable property.
Third plea has been taken by the appellant that he has perfected the title by adverse possession, is also not tenable as once they have accepted themselves as owner of land, there is no question of adverse possession. Since, tenancy has been accepted and oral transfer of ownership has been pleaded by the appellant, in this background, plea of adverse possession is not available to the defendants/appellants.
Appellant has further argued that the Trial Court has wrongly allowed the suit as it was barred under Order IX Rule 9 of the CPC as earlier a suit being Title (Eviction) Suit No. 24 of 1987 has been filed, which was dismissed for non-prosecution in the year 1997, as such consequent Suit being Eviction Suit No. 73 of 2003 was barred under Order IX Rule 9 of the CPC. The ground for eviction in the earlier suit was also default in making payment of rent.
The suit land has been purchased on 20.11.1985 by the plaintiff. The Eviction Suit has been filed in the year 1987, which was dismissed for non- prosecution in the year 1997 and consequent thereto the present Suit being Eviction Suit No. 73 of 2003 has been filed in the year 2003. Since default in making payment is admitted, there is default in making payment of rent -3- from 1997 till 2003 which gives fresh cause of action. Therefore, the ground taken by the appellant that the suit is barred Order IX Rule 9 of the CPC is not tenable.
The Appellant has further submitted that since property has travelled from Ayodhya Prasad Sao to the present plaintiff through registered sale deed, but rent has never been given to the plaintiff, as such plaintiff cannot be termed as landlord and plaintiff is not entitled to maintain the suit for eviction on the ground of tenancy.
This ground of the appellant is also untenable in view of the judgment rendered by the Apex Court in the case of Dr. Ambica Prasad Vs. Md. Alam and Anr. reported in 2015 AIR SCW 2471. Relevant para-17, 18 and 19 of the said judgment are quoted hereunder:
"17. 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.
18. 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. 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.
19. As noticed above, the respondent-tenant on many occasions approached the appellant, the transferee, owner -4- 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."
(Emphasis supplied) From the judgment of the Apex Court and it is well settled principle of law 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. 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. Tenant cannot object that ownership should not be transferred to the new purchaser.
Learned counsel for the appellant has relied upon the judgment rendered by the Apex Court in the case of Tribhuvanshankar Vs. Amrutlal reported in (2014) 2 SCC 788.
The judgment relied upon by the learned counsel for the appellant is not at all applicable in the facts of the present case as in that case the Trial Court has returned the finding that tenant has perfected the title over the suit land by adverse possession, as such, no relationship of landlord and tenant exists, which is not the case of the appellant here.
In view of the above discussion, this Court finds no merits in this appeal as no substantial question of law is involved in the present Second Appeal and the same is hereby dismissed.
I.A. No. 5368 of 2018 also stands dismissed.
(Rajesh Kumar, J.) Kamlesh/