Chattisgarh High Court
M/S Shyam Service Station vs Manish Raj Singhania And Others 41 ... on 24 August, 2020
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.114 of 2009
Judgment reserved on: 25-6-2020
Judgment delivered on: 24-8-2020
Hindustan Petroleum Corporation Ltd., (A Govt. of India Enterprise),
Regd. Office - 17, Jamshedji Tata Road, Mumbai - 400 020, Regional
Office - Madina Manzil, Second Floor, Medical College Road, Above
Vijaya Bank, Raipur (C.G.)
(Defendant No.1)
---- Appellant
Versus
1. Manishraj, aged 32 years, S/o Rajkamal Singhania.
2. Rishiraj, aged 30 years, S/o Rajkamal Singhania.
3. Rohit Kumar, aged 29 years, S/o Lalit Kumar Singhania.
1 to 3 at Singhania House, Khairagarh Bada, Opp. Daba Buildings,
Raipur (C.G.)
(Plaintiffs)
4. M/s. Sharma Service Station, thru. Partner: Shri Pramod Joshi, S/o Shri
Banwari Lal Joshi, Civil Lines, G.E. Road, Raipur (C.G.)
(Defendant No.2)
---- Respondents
------------------------------------------------------------------------------------------------------------
For Appellant / Defendant No.1: -
Mr. Ali Asgar, Advocate.
For Respondents No.1 to 3 / Plaintiffs: -
Mr. Sumesh Bajaj, Advocate.
For Respondent No.4 / Defendant No.2: -
Mr. B.P. Sharma and Mr. Hari Agrawal, Advocates.
------------------------------------------------------------------------------------------------------------
AND Second Appeal No.440 of 2008 M/s Shyam Service Station, a partnership firm duly registered under the relevant provisions of the Partnership Act, through its Partner Shri Pawan Joshi, S/o Shri Banwarilal Joshi, aged about 41 years, R/o G.E. Road, Civil Lines, Raipur.
(Defendant No.2)
---- Appellant 2 Versus
1. Manish Raj Singhania, aged about 27 years, S/o Shri Rajkamal Singhania.
2. Rishi Raj Singhania, aged about 25 years, S/o Shri Rajkamal Singhania.
3. Rohit Kumar Singhania, aged about 24 years, S/o Shri Rajkamal Singhania.
No.1 to 3 are residents of House No.15/481, Civil Lines, Raipur.
(Plaintiffs)
4. M/s Hindustan Petroleum Corporation Ltd., through its President, 17, Jamshed Ji Tata Road, Mumbai.
(Defendant No.1)
---- Respondents
------------------------------------------------------------------------------------------------------------ For Appellant / Defendant No.2: -
Mr. B.P. Sharma and Mr. Hari Agrawal, Advocates. For Respondents No.1 to 3 / Plaintiffs: -
Mr. Sumesh Bajaj, Advocate.
For Respondent No.4 / Defendant No.1: -
Mr. Ali Asgar, Advocate.
------------------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Sanjay K. Agrawal C.A.V Judgment
1. Proceedings of these matters have been taken-up for final hearing through video conferencing.
2. The above-stated appeals have arisen from common judgment & decree of the first appellate Court, which has been impugned in both these appeals, therefore, they were clubbed and heard together and are being disposed of by this common judgment.
3. In the aforesaid two appeals preferred by defendants No.1 & 2 separately, following common substantial questions of law were formulated by order dated 18-2-2020: -
"1. Whether both the courts below were justified in holding the by document marked as Ex.P-4 whereby plaintiffs / respondents have allegedly transferred / thrown their 3 respective property rights, which they purchased by different sale deeds vide Exs.P-1 to P-3 in common hotch-potch, they have become owner of the tenanted premises entitled to seek eviction of the defendants/appellants from suit accommodation, that too, in absence of registration of Ex.P-
4, by recording a finding which is perverse to the record?
2. Whether the document marked as Ex.P-4 can be treated as conveyance / transfer in favour of the Joint Hindu Family as per Section 5 of the Transfer of Property Act, 1882 requiring registration?
3. Whether both the courts below were justified in not deciding the issues No.10 & 11 relating to right of pre- emption holding it is pending to be considered by the other court?"
(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the trial Court.)
4. The suit land / accommodation situated at G.E. Road, Raipur, plot No.17/3, total area 10,000 sq.ft. is the subject matter of these appeals. The said land was earlier owned by Nausher Khan, Khudadad Karmo & Sir Sethji and they had let-out the said land to M/s. Caltex Oil Refining (India) Ltd. constituted under the Caltex Acquisition Act, 1977 (for short, 'the Act of 1977') on 1-10-1962 for a period of ten years and by registered deed dated 31-12-1962, it was further extended for another period of ten years till 30-9-1972 with two renewal options of five years each, thus, the period of lease was extended up to 30-9-1982 by which defendant No.1 - Hindustan Petroleum Corporation Limited (HPCL) {successor-in-interest of M/s. Caltex Oil Refining (India) Ltd.} let-out the said land to defendant No.2 - M/s. Shyam Service Station for running petrol pump in the name and style of M/s. Shyam Service Station on monthly tenancy commencing from 1 st day of the month and ending on last day of the month. The assets and liabilities of M/s. Caltex Oil Refining (India) Ltd. were taken-over by HPCL - defendant No.1 4 herein {successor-in-interest of M/s. Caltex Oil Refining (India) Ltd.} by virtue of Sections 7 and 9 of the Act of 1977 and the HPCL Amalgamation Order, 1978.
5. The three plaintiffs namely, Manish Raj Singhania, Rishi Raj Singhania & Rohit Kumar Singhania purchased the said suit land vide Exs.P-2, P-1 & P-3, respectively, by three registered sale deeds dated 13-3-1996 from the erstwhile owners named above. Thereafter, on 9-4-1996, the three plaintiffs vide Ex.P-4 made a declaration showing their property purchased vide Exs.P-1 to P-3 to be in a common hotch-potch and thereafter the names of the plaintiffs were recorded by order dated 17- 7-1996 (Ex.P-5) passed by the Nazul Officer, Raipur. Thereafter, on 2-8-1996 vide Ex.P-7, the plaintiffs served legal notice to defendant No.1 for vacating the suit premises which defendant No.1 replied vide Ex.D-1 and reiterated the same by another notice dated 6-3-2000 (Ex.P-8) which was also replied by defendant No.1 vide Exs.D-2 & D-3 and thereafter the suit premises were not vacated which led to filing of suit for eviction and arrears of rent stating inter alia that the suit accommodation is required for non-residential purpose i.e. constructing commercial complex and also on the ground of arrears of rent and since the defendants have denied their title, therefore, it is also claimed on the ground of Section 12(1)(c) of the Chhattisgarh Accommodation Control Act, 1961 (for short 'the Act of 1961') along with cost.
6. Resisting the suit, defendant No.1 - HPCL filed its written statement denying the plaint allegations and stating inter alia that the declaration dated 9-4-1996 (Ex.P-4) is not in accordance with law, as the plaintiffs have not acquired any title to the suit plot jointly and severally and 5 consequently, the alleged mode of transfer of individual ownership is not legal and enforceable and the defendant has not accepted at all the plaintiffs as its landlord and did not attorn to the plaintiffs as its landlords and therefore the plaintiffs' ownership to the said accommodation stands repudiated. It was further pleaded that clause 4(c) of the agreement dated 31-12-1962 entered into between the erstwhile owners of the suit land and defendant No.1's predecessor-in-title - M/s. Caltex Oil Refining (India) Ltd. was bought to the notice of the plaintiffs demanding due compliance therewith, but the plaintiffs remained silent and did not reply or react. It was also pleaded that by virtue of clause 4(e) of the said lease agreement, defendant No.1 has a right of preemption over the suit land for which defendant No.1 had already filed a suit on 3-8-2000 for specific performance of the agreement to sale, bearing Civil Suit No.31-A/2000 in the Court of 2 nd Additional Judge to the Court of District Judge, Raipur and that suit is pending consideration, therefore, the plaintiffs are not entitled for decree on the grounds enumerated under Sections 12(1)(a), (c), (f) & (h) of the Act of 1961 or any other ground under the Act of 1961.
7. Resisting the suit, defendant No.2, who is the dealer of defendant No.1, filed its separate written statement stating inter alia that the plaintiffs have three separate and distinct sale deeds executed vide Exs.P-1, P-2 & P-3 in their favour and thus, one common suit by all of them is not maintainable in law. It was further submitted that mere declaration (Ex.P-4) on insufficient stamp paper and without its registration do not confer any right, title or interest in favour of any person or in favour of the plaintiffs and no such ground for eviction of defendant No.1 or 6 defendant No.2 is made out, as such, the suit is liable to be dismissed with cost.
8. During the course of trial, the plaintiffs examined Shyamji Tiwari as PW- 1 and Manish Raj Singhania - plaintiff No.1 as PW-2 in support of their case, but so far as the defendants are concerned, on 27-8-2005, defendant No.1 expressed its unwillingness before the trial Court to adduce evidence and declared its evidence to be closed. Likewise, defendant No.2 despite sufficient opportunity to adduce evidence, could not adduce its evidence before the trial Court and by order dated 7-1- 2006, its opportunity to lead evidence was closed. As such, on behalf of defendants No.1 & 2, no evidence was let-in on record to support their stand taken in their respective written statements.
9. Defendant No.2 on 16-12-2000, filed an application under Order 2 Rules 6 & 7 read with Section 151 of the CPC stating inter alia that on the basis of three sale deeds registered in favour of the plaintiffs, they have filed one suit for eviction on the strength of Ex.P-4 which is not permissible in accordance with law and the document Ex.P-4 being unregistered and unstamped, the suit as framed and filed jointly would not be sustainable and Ex.P-4 is not admissible in evidence and therefore the trial Court be directed to conduct separate trials which the trial Court on 16-12-2000 rejected holding that separate trials are not necessary and the issue of insufficient stamp can be decided at the time of final hearing.
10. On the basis of pleadings of parties, the trial Court framed following issues which are as under with finding for sake of convenience: - 7
Øek¡d okn&iz'u fu"d"kZ
1- D;k fookfnr Hkw[k.M IykV ua- & 17@3 dqy jdck 10000 gk¡
oxZQhV ds oknhx.k la;qDr Lokeh gS\
2- D;k oknhx.k }kjk fookfnr Hkw[k.M dks Ø; fd;s tkus ls gk¡
oknhx.k ds izfroknh Øek¡d 1 ,oa 2 fdjk;snkj gks pqds gSa\ 3- D;k oknhx.k dks izfroknhx.k ls 19]600@& :- cdk;k fdjk;k gk¡ izkIr djus dk vf/kdkj gS\ 4- D;k oknhx.k dks fookfnr Hkw[k.M ds O;olkf;d ifjlj fuekZ.k gk¡ dj O;olk; djus ds fy;s okLrfod ,oa ln~HkkoukiwoZd vko';drk gS\ 5- D;k oknhx.k ds ikl fookfnr fdjk;k'kqnk Hkw[k.M ds vykok vU; dksbZ mi;qDr Hkou jk;iqj 'kgj esa vU; dksbZ Hkh mi;qDr Hkw[k.M ;k LFkku miyC/k O;olk; gsrq oknhx.k ds ugha gS\ ikl ugha gSA 6- D;k izfroknhx.k }kjk fdjk;s dh jkf'k dk Hkqxrku oknhx.k dks gk¡ lwpuk ds i'pkr~ Hkh nks ekg dh vof/k esa ugha fd;s tkus ds dkj.k Hkh oknhx.k fookfnr Hkw[k.M dk fjDr vkf/kiR; izkIr djus ds vf/kdkjh gS\ 7- D;k izfroknhx.k }kjk fookfnr Hkw[k.M ds oknhx.k ds LokfeRo gk¡ ls bUdkj fd;s tkus ls Hkh oknhx.k dks fookfnr Hkw[k.M dk fjDr vkf/kiR; izkIr djus dk vf/kdkj gS\ 8- D;k fookfnr Hkw[k.M dks fjDr djk;s fcuk fuekZ.k dk;Z lEHko vizekf.kr ugha gS\ 9- D;k oknhx.k fnuk¡d & 01@04@2000 ls 19@06@2000 rd gk¡ 200@& :- izfrfnu dh nj ls {kfriwfrZ Lo:i dqy 16]000@& :- izkIr djus ds vf/kdkjh gS\ 10- D;k izfroknhx.k dks fookfnr Hkw[k.M ewy iV~VkdrkZ ls iV~Vs ekuuh; f}rh; vfrfjDr ds vuqca/k ds vuqlkj iwoZ Ø; vf/kdkj izkIr Fkk\ ftyk U;k;ky; jk;iqj esa 11- D;k ewy iV~VkdrkZ }kjk izfroknhx.k dks iV~Vs dh lafonk ds fu/kkZfjr fd;k tkuk gS vuqlkj foØ; ds izLrko dh lwpuk lafonk ds vuqlkj blfy;s vfuf.kZr NksM+k izfroknhx.k dks uk fn;s tkus ds dkj.k oknhx.k ds i{k esa x;kA fu"ikfnr foØ; i= voS/k gS\ 12- D;k oknh us okn dk mfpr ewY;k¡du fd;k gS\ gk¡ lgk;rk ,oa okn O;;\ iSjk 13 ds vuqlkjA
11. Upon appreciation of oral and documentary evidence on record, the trial Court, on 23-1-2006, decreed the suit on the grounds enumerated under Section 12(1)(a), (c) & (f) of the Act of 1961 holding that the suit accommodation is required bona fidely for non-residential purpose i.e. for construction of commercial complex of the plaintiffs, as they have no other alternative accommodation in the township of Raipur for construction of commercial complex, as such, the suit accommodation is required bona fidely and the defendants have denied the title of the plaintiffs. It was also held that vide Ex.P-4, the plaintiffs have thrown their separate property into the common hotch-potch. 8
12. Feeling aggrieved and dissatisfied with the judgment & decree of the trial Court decreeing the suit, defendants No.1 & 2, both, preferred appeals separately before the first appellate Court being Civil Appeal No.4A/2006 preferred by defendant No.1 HPCL and Civil Appeal No.7A/2006 preferred by defendant No.2 M/s. Shyam Service Station. By its common judgment, which is impugned herein, learned 3rd Additional District Judge, Raipur has dismissed both the appeals finding no merit and confirmed and concurred the judgment & decree of the trial Court leading to filing of second appeals under Section 100 of the CPC before this Court in which common substantial questions of law have been formulated and which have been set-out in the opening paragraph of this judgment for sake of completeness.
13. Mr. Ali Asgar, learned counsel appearing for defendant No.1 HPCL, would submit that Ex.P-4 was required to be registered because it involves transfer of property within the meaning of Section 5 of the Transfer of Property Act, 1882, therefore, in absence of registration, no title has been passed in favour of the plaintiffs and as such, the suit ought to have been dismissed by both the Courts below and with reference to substantial question of law No.3, it is submitted that once an issue has been framed by the trial Court i.e. issues No.10 & 11 with regard to right of preemption of defendant No.1, it ought to have been decided by the trial Court in view of the provision contained in Order 20 Rule 5 of the CPC, as such, judgments & decrees of both the Courts below deserve to be set-aside and the plaintiffs' suit be dismissed with cost.
14. Mr. B.P. Sharma, learned counsel, ably assisted by Mr. Hari Agrawal, 9 learned counsel appearing for defendant No.2 - M/s. Shyam Service Station, would submit that both the Courts below went wrong in decreeing the suit of the plaintiffs. The doctrine of throwing self- acquired property to the common hotch-potch is doctrine peculiar to the Mitakshara School of Hindu Law; the existence of prior / existing co- parcenary is absolutely necessary before such throwing; the desire of coparcener to blend his separate property with the coparcenary property coupled with his intent of waiving / abandoning his separate claim in the said separate property is also essential for throwing any property into common hotch-potch; and the act of cessation of separate property and assumption / acquisition of characteristic of Joint Family / Ancestral Property would also be necessary for such throwing. He would submit that in the light of the aforesaid requirements, if document Ex.P-4 is examined, though the plaintiffs have stated that they are members of Hindu Undivided Family, however, in paragraph 12 of his statement Manish Raj Singhania (PW-2) - plaintiff No.1 has specifically denied that the property is the joint family property. Mr. B.P. Sharma, learned counsel, would further submit that even while executing Ex.P-4 all the three plaintiffs have clear intention that the said properties will be treated as joint property of all the executants only and accordingly, the names of all the three plaintiffs have been recorded in the revenue records, but in Ex.P-4 there was no desire of the plaintiffs / coparceners to blend their separate property with the coparcenary property and there was no intent of the plaintiffs to waive / abandon their separate claim in the said separate property in favour of the joint family property. As such, vide Ex.P-4 there was no blending of separate properties of the 10 plaintiffs in favour of Hindu Undivided Family so as to make the property as joint family property and therefore the said declaration Ex.P- 4 has to be treated as an instrument whereby three different persons have transferred their separate share into the joint unholy union of these three persons, but the same is invalid for want of compulsory registration. Thus, the said document requiring compulsory registration being transfer is invalid for want of compulsory registration. He would rely upon the decision of the Supreme Court in the matter of Goli Eswariah v. Commissioner of Gift Tax, Andhra Pradesh 1 to buttress his submissions. With regard to substantial question of law No.3, he would submit that once the trial Court has struck an issue in shape of issues No.10 & 11, the said issues ought to have been decided this way or that way finally by that trial and that cannot be left undecided in the light of the pending suit separately filed by defendant No.1 against the erstwhile owners of the property. As such, judgments & decrees of both the Courts below deserve to be set-aside and the plaintiffs' suit be dismissed.
15. Mr. Sumesh Bajaj, learned counsel appearing for the plaintiffs / respondents No.1 to 3 herein in both the appeals, would submit that objection of the defendants with respect to Ex.P-4 is not at all maintainable, the suit of the plaintiffs was not based on Ex.P-4 as the plaintiffs have derived their title vide Exs.P-1 to P-3 and they have become owners and they are landlords of the suit accommodation. Ex.P-4 was only a family arrangement just to balance the internal claims of the plaintiffs and further just to demonstrate that they do not intent to have partition / severance and for mutation purpose, this is clear 1 1970 (2) SCC 390 11 from the plaint allegations and all the three plaintiffs / coparceners have joined together as co-plaintiffs and filed suit for eviction which is apparent from the quit notices issued to defendant No.1 vide Exs.P-7 & P-8. He would further submit that the question of title in a suit for eviction is not germane and it is only incidentally to be seen in a suit for eviction, particularly when the plaintiffs neither derived title nor claimed to have derived title vide Ex.P-4, as such, such argument that it is a transfer and it requires registration to make a claim in the shape of suit for eviction against the defendants, is totally unavailable to the defendants. He would also submit that it is a very clear case that the plaintiffs are co-owners of the suit property and they have jointly filed suit and the document Ex.P-4 absolutely makes no difference on the status of the plaintiffs even if Ex.P-4 is not considered at all. He would also contend that in the light of the decision rendered by the Supreme Court in the matter of Taraknath and another v. Sushil Chandra Dey by LRs. and others2, the decision of the M.P. High Court in the matter of B.P. Pathak v. Dr. Riyazuddin Haji Mohammad Ali and others 3 and the decision of the Supreme Court in the matter of Ambica Prasad v. Mohd. Alam and another4, the plaintiffs / purchasers have got valid title to the property and the defendants who were continuing as tenants are bound by the plaintiffs' title over the suit accommodation since the suit has been filed for eviction of the defendants. He would also submit that since defendant No.1 had already filed Civil Suit No.17A/2009 (Hindustan Petroleum Corporation Limited v. Smt. Sirin and others) claiming right of preemption based on agreement which on the date of 2 (1996) 4 SCC 697 3 AIR 1976 MP 55 4 (2015) 13 SCC 13 12 institution of the instant suit was pending before the Additional District Judge, Raipur, and thereafter that suit has now been dismissed by the said Court, therefore, the trial Court is absolutely justified in not recording a finding on the said issue, particularly when defendant No.1 did not lead any evidence on the said issues for which no exception can be taken, as Order 20 Rule 5 of the CPC clearly states that the Court shall state its finding or decision, with the reasons therefor, on all the issues, unless the finding upon any one or more of the issue is sufficient for the decision of the suit. As such, both the appeals deserve to be dismissed with costs.
16. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
Answer to substantial questions of law No.1 and 2: -
17. It is not in dispute that the three plaintiffs namely, Manish Raj Singhania, Rishi Raj Singhania & Rohit Kumar Singhania vide three sale deeds dated 13-3-1996 (Exs.P-1 to P-3) have purchased 10,000 sq.ft. land (Manish Raj Singhania - 2,000 sq.ft., Rishi Raj Singhania - 4,000 sq.ft. and Rohit Kumar Singhania - 4,000 sq.ft.) and thereafter they have executed a declaration vide Ex.P-4 throwing their part of property to be a common hotch-potch and thereafter, vide Ex.P-7 on 2-8-1996 and vide Ex.P-8 on 6-3-2000 served notices to defendants No.1 & 2 stating therein that they have purchased the suit accommodation by three sale deeds dated 13-3-1996 and they have become owners of the said land and asked upon defendants No.1 & 2 to pay rent clearly informing that vide Ex.P-5, their lands have already been recorded in their names in the 13 revenue records and the suit accommodation is required for construction of commercial complex bona fidely for which they have no other alternative accommodation in the township of Raipur which defendant No.1 replied vide Exs.D-2 & D-3.
18. At this stage, it would be appropriate to notice Section 109 of the Transfer of Property Act, 1882 (for short, 'the TP Act') which states as under:-
"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."
19. A careful perusal of the aforesaid provision would show that when the right, title and interest in immovable property stands transferred by operation of law, Section 109 of the TP Act would apply and the successor-in-interest would be entitled to the right of his predecessor.
20. The Supreme Court in Taraknath (supra) has held that since the purchaser gets valid title to the property and the respondent was continuing as tenant, he is bound by title since the suit has been laid for 14 eviction of the tenant and held as under:-
"4. ... The sale deed is a registered conveyance for valid consideration. Under those circumstances, by operation of Section 17 of the Registration Act, 1908, the appellant gets valid title to the property. ..."
21. The Division Bench of the Madhya Pradesh High Court in B.P. Pathak (supra) held that Section 109 of the TP Act creates a statutory attornment and applies in three cases (i) where the lessor transfers the whole property leased; (ii) where the lessor transfers the property leased or any part thereof; and (iii) where the lessor transfers the property leased or any part of his interest thereof and held as under:-
"19. All these problems are solved by Section 109. In our opinion, that section creates what may be called statutory attornment, which substitutes, and has the same effect, as contractual attornment, so that because of a transfer of the leased property, or a part thereof, the transferee ipso facto acquires "all the rights" of the lessor, and a new relationship is created between the transferee and the lessee. Letter of attornment is not necessary to complete title to the assignee of the reversion under Section 109. Title of the assignee is complete on the execution of the deed of assignment and is not postponed till the notice of assignment. See Pulin Bihary v. Miss Lila Dey5. This relationship is statutory. It is not dependent on the consent of the lessee (liabilities of the lessor apart). This is by force of the statue. ..."
22. In B.P. Pathak (supra), the Division Bench of the M.P. High Court further laid down the following principles of law with regard to Section 109 of the TP Act by observing as under: -
"28. The above discussion leads to the following conclusions:--
(1) It is settled law that in the absence of a specific provision in the statute, the tenancy cannot be split up by one of the parties without the consent of the other. The Court or the Rent Controlling Authority also cannot split up the tenancy. The lessee can be ejected from the whole of the demised property or not at all. Miss S. Sanyal v.
Gianchand AIR 1968 SC 438 and Shantaram v. Shyam Sunder AIR 1972 Madh Pra 17.
5 AIR 1957 Cal 627 15 (2) If there is a specific provision which gives the Court or the Rent Controlling Authority power to split up the tenancy, the statute will override; for instance, clause 13 (8) of the C. P. and Berar Letting of Houses and Rent Control Order, 1949, (Nathulal v. Ratansi 1957 MPLJ 805 = (AIR 1958 Madh Pra 218) (FB)).
(3) If the lessor transfers any part of the property leased, the transferee, by virtue of Section 109 of the Transfer of Property Act, acquires all the rights of the lessor in respect of that "part of the property". This means that the transferee possesses all the rights in that part of the property as if it had alone originally been comprised in the lease. If not already determined, the transferee is entitled to determine the lease and sue for ejectment.
(4) If the lessor transfers any part of his interest in the property leased, the transferee becomes a co-lessor and as such, the transferee alone cannot determine the tenancy or sue for ejectment without the other co-lessor joining him, or unless and until the transferee gets a partition effected.
(5) For the purposes of Section 109, a partition is a transfer of the part of the property allotted to each co- owner. It automatically splits up the tenancy.
(6) Section 109 creates statutory attornment and has the same effect as if the lessee by contract attorns to the lessor's transferee in respect of the property transferred (whole or part, as the case may be).
(7) Although the wording of Section 140 of the English Law of Property Act, 1925, is somewhat different from that of Section 109 of our Transfer of Property Act, the effect of the two provisions is the same.
(8) The right of ejectment is inherent in ownership. (9) A transferee of a part of the property leased can determine the lease in respect of the part transferred, in any of the circumstances enumerated in section 111 of the Act, and sue for ejectment. There is nothing to restrict this right of ejectment to cases where the lease had been determined before the transfer, or to cases where the lease is determined by efflux of time."
23. Similarly, the Full Bench of the M.P. High Court in the matter of Sardarilal v. Narayanlal6 considered the question "whether a transferee of a part of the property leased can terminate the lease with respect to 6 AIR 1980 MP 8 16 the part transferred to him by giving a quit notice to the tenant"? The said question was answered by their Lordships in paragraph 5 of the report and it was held that a right to terminate the lease by a quit notice is a right of the lessor. Section 109 thus enables the transferee to exercise all the rights of the lessor including the right to terminate the lease. It was further held that even transferee of a part of property leased can terminate lease with respect to the part transferred to him by giving quit notice to tenant. It was observed by their Lordships as under: -
"5. Section 109 applies when the lessor transfers the property leased, or any part thereof, or any part of his interest therein. When the transfer is of the entire property leased, there is no difficulty and the transferee gets all the rights of the lessor including the right to terminate the tenancy by issuing a quit notice. In such a case, there is no severance of tenancy and the transferee like the lessor can terminate the tenancy. There is also no difficulty when the lessor transfers a part of his interest in the property leased. By "any part of his interest" is meant not a fractional share but something less than the entire interest of the lassor. If the lessor sells the property, the transferee gets the whole of the lessor's interest; but if the lessor, instead of selling the property, mortgages or leases the property, the interest so transferred is a part of his interest in the property leased. In such a case also the mortgagee of the lessor or the lessee of the lessor can terminate the lease in the same manner in which the lessor could have terminated the lease (Barjorji v. Shripatprasadji, AIR 1927 Bom 145; Manikkam v. Rathnasami, AIR 1919 Mad 1186.) The difficulty arises only when the lessor transfers a part of the property leased or any part of his interest in a part of the property leased. The question that then arises is whether the transferee can by a quit notice terminate the lease in respect of the part of the property transferred to him. The argument of Shri Sanghi, learned counsel for the appellant, is that a lease is indivisible and a transferee of a part of the property leased cannot terminate the tenancy of the part transferred to him, as that would amount to affecting the integrity of the lease. The argument of the learned Advocate General on behalf of the respondents is that in such a situation, Section 109 effects severance of the tenancy in respect of the part transferred by the lessor and 17 the transferee of the part can terminate the lease of the part by a quit notice. It is common ground that apart from statute, a transfer of a part of the property leased does not effect a severance of the tenancy entitling a transferee of the part of the property leased to terminate the tenancy of the part transferred to him.
The point for consideration is thus whether Section 109 is a statutory provision effecting severance of the tenancy in such cases. The point is not free from difficulty. However, having given our anxious consideration to the problem, we are of opinion that Section 109 has the effect of severing the tenancy in respect of the part of the property transferred by the lessor and the transferee can terminate the tenancy of the part transferred to him. An indication of this is found in the last clause of Section 109 which provides for apportionment of rent in respect of the part transferred even without the consent of the lessee. As enacted therein, 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 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.
The effect of this clause is to enable apportionment of rent with respect to the part transferred even without the consent of the lessee by order of the Court. The provision for apportionment of rent without the consent of the lessee is an indication that Section 109 intends to effect a severance of the lease. A right to terminate the lease by a quit notice is a right of the lessor. The transferee as provided in Section 109 gets "all the rights" of the lessor by virtue of the transfer "as to the property or part transferred". The section thus enables the transferee to exercise all the rights of the lessor including the right to terminate the lease. But then it is argued that the transferee of a part of the property leased only gets all the rights of the lessor in respect of that part and as the lessor himself could not have terminated the tenancy of a part of the property leased, the transferee of the part cannot also terminate the tenancy of the part transferred to him. In our opinion, this is too narrow a construction of Section 109 which fails to take notice of the intention evidenced by the last clause to sever the tenancy.
Further, if this construction is accepted, it would lead to many difficulties. A transferee would be unable to terminate the lease of the part of the property transferred to him unless the lessor agrees to join him in terminating the entire tenancy. The transferee would have no remedy if the lessor refuses, howsoever unreasonably, to terminate the entire lease. It was suggested that the difficulty would be removed by the transferee filing a suit for compelling the 18 lessor to join him in terminating the lease. But such a suit, even if theoretically possible, would lead to multiplicity of litigation. On the other hand, by holding that Section 109 creates a severance of tenancy when the lessor transfers a part of the property leased, there would be no difficulty and the statute would work harmoniously in the interest of all concerned. If there are two views possible of a statutory provision, it is a well-recognised canon of construction that the view which leads to injustice and inconvenience should be rejected, and the one which is in consonance with justice and convenience should be preferred.
7. It was submitted by Shri Sanghi that if a lessor transfers a fractional share in the property leased, the transferee of the fractional share will also get all the rights of the lessor in respect of the share so transferred to him; and if Section 109 is given a construction permitting the transferee of a defined part to terminate the lease of the part, the transferee of a share in the property leased would also get the same right and would be able to terminate the tenancy of the share transferred to him and that if it is accepted that the transferee of a share cannot terminate the tenancy of the share transferred to him, the transferee of a specific part of the property cannot also terminate the tenancy of the part; otherwise, Section 109 will have to be construed differently in these two types of cases for which there is no justification. In our opinion, there is no such difficulty in the application of Section 109 because it does not apply to a case where only a share in the property leased or a share in any part thereof is transferred.
We have earlier pointed out that the words "any part of his interest therein" as used in Section 109 do not refer to any fractional share but only to an interest which is not the entire interest of the lessor but something less than that; for example, where the lessor, instead of selling the property leased or a part thereof, mortgages or leases the same it would be said that he has transferred a part of his interest therein. Cases where there is only a transfer of a fractional share in the property leased or in a part thereof would be governed by Section 37 and not by Section 109. A transferee of a share in the property leased or in any part thereof will become a co-owner with the lessor and will stand in the same position as a co-lessor. It is well settled - and this legal position is not disputed before us - that a co-lessor cannot terminate the lease and that an effective quit notice for terminating the lease has to be given on behalf of all the co-lessors. (See Nanalal v. G.J. Motorwala (AIR 1973 Guj 131 (FB)); Abdul Hamid v. Bhuwaneshwar Prasad (AIR 1953 Nag 18)). The difficulty in the construction pointed out by Shri Sanghi, therefore, does not arise if Section 109 is so understood."
19
24. The decision of the M.P. High Court (Full Bench) rendered in Sardarilal (supra) was considered by the Supreme Court with approval in the matter of Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate7 and it was held that suit for eviction filed by co-lessor to whom portion leased property fell on partition is maintainable, tenant cannot object to such partition although he can show that partition was not bona fide. It was observed by their Lordships of the Supreme Court as under: -
"37. In view of the above discussion, it is obvious that the law with regard to the splitting of tenancy is not what the High Court has set out in the impugned judgment. As pointed out earlier, a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners. If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. The right of joint lessors contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or co-lessors from partitioning the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even it he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. It will, however, be open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute."
7 AIR 1997 SC 998 20
25. Section 109 of the TP Act was also considered by the Supreme Court in Ambica Prasad (supra) and it was held that upon transfer of interest by lessor during subsistence of lease, immediately rights are acquired by the transferee thereupon and attornment by lessee to new lessor is not required. It was observed as under:-
"15. ... 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."
26. Thus, in the light of the provisions contained in Section 109 of the TP Act and the principles of law laid down by their Lordships of the Supreme Court and the M.P. High Court in the afore-cited judgments, it is quite vivid that Section 109 of the TP Act creates a statutory attornment and by virtue of the transfer of leased property, transferee ipso facto acquires all the rights of the lessor, and a new relationship is created between the transferee and the lessee. Letter of attornment is not necessary to complete title to assignee and thus, by virtue of Section 109 of the TP Act, there is statutory attornment and as such, the three plaintiffs have become landlords of the suit accommodation and were entitled to file suit for eviction of the defendants / appellants herein.
27. Now, the question is, whether the suit could have been held to be non- maintainable in the light of document Ex.P-4 by which the plaintiffs have 21 declared that they have thrown their self-acquired property into a common hotch-potch for want of its registration?
28. A careful perusal of the plaint would show that the plaintiffs' suit is not based on Ex.P-4, as the plaintiffs' suit is based on Exs.P-1 to P-3 - three sale deeds by which they have purchased the suit accommodation by registered sale deeds from its erstwhile owners. The plaintiffs filed suit for eviction of defendants No.1 & 2. The suit is based on the grounds enumerated under Sections 12(1)(a), (c) & (f) of the Act of 1961 and the grounds enumerated under Sections 12(1)(c) & (f) have been found established by the two Courts below. Neither defendant No.1 nor defendant No.2 has assailed those findings that the plaintiffs are not owners of the suit accommodation and they have become landlords by operation of Section 109 of the TP Act and the suit accommodation is required bona fidely for their non-residential purpose, as they have no alternative accommodation in the township of Raipur and the defendants have denied the title of the plaintiffs.
29. At this stage, it is appropriate to mention here that present is a case based on relationship of landlord & tenant under Section 12(1)(c) &
(f) of the Act of 1961 and in that kind of suit based on the provisions of the Chhattisgarh Accommodation Control Act, 1961, question of title is not germane / irrelevant. In the matter of M.M. Quasim v. Manohar Lal Sharma and others8, it was held by the Supreme Court that an owner/landlord can seek eviction on the ground of his personal requirement, he is one who has a right against the whole world and excludes anyone holding lesser title than his own. Similarly, in the 8 (1981) 3 SCC 36 22 matter of Dilbagrai Punjabi v. Sharad Chandra9, it was held by the Supreme Court that it was essential to sustain a claim for eviction under Section 12 (1)(f) of the M.P. Accommodation Control Act, 1961 to establish that the plaintiff was owner of premises. It was also held that burden of proving ownership, in a suit between landlord and tenant either admitted or proved, is not so heavy and lesser quantum of proof may suffice than what would be needed in a suit based on title against a person setting a contradictory title while disputing the title of the plaintiff, but the pleading and proof of ownership is one of the ingredients of ground under Section 12 (1)(f) of the Act of 1961. Similarly, in the matter of Sheela and others v. Firm Prahlad Rai Prem Prakash10, the Supreme Court has clearly held that while seeking an ejectment on the ground of bona fide requirement under clause (f) of sub-section (1) of Section 12 of the Act of 1961, landlord is required to allege and prove not only that he is landlord, but also that he is owner of the 'premises', pointing out distinction between ownership and landlord-ship with reference to Rent Control Legislation. It was further held that in Rent Control Legislation, the landlord can be said to be owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. In the instant case, it has already been held that two Courts have found that the plaintiffs are landlords of the suit accommodation and also owners of the suit accommodation for the purpose of eviction under Section 12(1)(c) &
(f) of the Act of 1961 and those findings have attained finality. 9 1988 (Supp) SCC 710 10 AIR 2002 SC 1264 23
30. Mr. B.P. Sharma, learned counsel appearing for defendant No.2 - M/s. Shyam Service Station, heavily relied upon the decision of the Supreme Court in Goli Eswariah (supra) in which their Lordships framed the following question for determination: -
"Whether the declaration by which the assessee has impressed the character of joint Hindu family property on the self-acquired properties owned by him amounts to a transfer so as to attract the provisions of the Gift-tax Act."
Their Lordships further considered the true scope of the doctrine of throwing into the 'common stock' or 'common hotchpot' in paragraph 5 of its report by observing as under: -
"5. To pronounce on the question of law presented for our decision, we must first examine what is the true scope of the doctrine of throwing into the 'common stock' or 'common hotchpot'. It must be remembered that a Hindu family is not a creature of a contract. As observed by this Court in Mallesappa Bendeppa Desai and Others v. Desai Mallappa and Others,11 that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws his separate property to the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. No longer he declares his intention to treat his self acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing to the common stock is 11 (1961) 3 SCR 779 24 a doctrine peculiar to the Mitakshara School of Hindu law. When a coparcener throws his separate property into the common stock, he makes no gift under Chapter VII of the Transfer of Property Act. In such a case there is no donor or donee. Further no question of acceptance of the property thrown into the common stock arises."
31. Thus, their Lordships have finally held in Goli Eswariah (supra) that when a coparcener throws his separate property into the common stock, he makes no gift under Chapter VII of the Transfer of Property Act and further in paragraph 11 of the report negatived the plea and observed that "the declaration by which the assessee has impressed the character of joint Hindu family property on the self-acquired properties owned by him did not amount to a transfer so as to attract provisions of the Act".
32. As noticed herein, the two Courts below have rightly concluded that the plaintiffs are the landlords of the suit accommodation and also the owners of the accommodation and those findings have attained finality, as the suit is not based on Ex.P-4 and consequently, the argument based on registrability of Ex.P-4 would not confer any benefit to the defendants, as their Lordships have held in Goli Eswariah (supra) that declaration by assessing separate property into common hotch-potch did not result in transfer to attract the provisions of the Gift-tax Act and further, neither defendant No.1 nor defendant No.2 pressed the issue of registrability of Ex.P-4 seriously either before the trial Court or before the first appellate Court which is evident from the fact that neither issue on registrability of Ex.P-4 was framed nor any finding was recorded on the said point by the two Courts below and in view of order dated 16- 12-2000 passed by trial Court, the submissions raised in these regards are rejected.
Answer to substantial question of law No.3: -
25
33. Order 20 Rule 5 of the CPC states as under: -
"5. Court to state its decision on each issue.--In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit."
34. A careful perusal of the aforesaid provision would show that it is imperative upon the court to pronounce its finding or decision, with the reasons therefor, upon each separate issue as it is necessary for the disposal of the suit. The only exception is that the finding upon any one or more of the issue may not require separately. It would be apparent in the instant case that defendant No.1 had already filed separate suit qua issue Nos.10 & 11 based on right of preemption over the suit land being Civil Suit No.31-A/2000 (Hindustan Petroleum Corp. Ltd. v. Nawsirwan and others) in the Court of 2 nd Additional Judge to the Court of District Judge, Raipur, which was pending consideration at the time when the suit was finally adjudicated, and therefore the trial Court has declined to record finding on the said issues. Admittedly, separate suit, as held above, was pending covering issue Nos.10 & 11 at the instance of defendant No.1 itself and now the said civil suit has finally been adjudicated on 1-12-2010 and it is said to have been dismissed. Defendant No.1 did not move application before the trial Court for consolidation of the said suit along with the suit filed by the plaintiffs herein and allowed that suit to be proceeded with, as such, it cannot be allowed to take advantage of its own wrong, as it sat tight by filing the separate suit pleading the right of preemption. HPCL being a Government company was expected to act fairly and objectively in litigating. Therefore, the trial Court has rightly declined to record a 26 finding on the said issues as it was subject matter of Civil Suit No.31-A/ 2000 filed by defendant No.1, admittedly when the defendants particularly defendant No.1 has not adduced any evidence on all the issues including issue Nos.10 & 11 in this suit. As such, the first appellate Court is justified in holding that the trial Court has rightly not returned finding on issue Nos.10 & 11 which cannot be taken exception to by the appellants herein / defendants in these second appeals. Accordingly, substantial question of law No.3 is also answered against the defendants.
35. Concludingly, the first appellate Court is absolutely justified in affirming the judgment & decree of the trial Court. I do not find any illegality or perversity in the said finding in the light of the substantial questions of law answered herein-above. Pending Interlocutory Applications are disposed off. Accordingly, both the second appeals deserve to be and are hereby dismissed. No order as to cost(s).
36. Decree be drawn-up accordingly.
Sd/-
(Sanjay K. Agrawal) Judge Soma