Patna High Court
Nokhey Lal Yadav vs Jogendra Prasad Gupta on 30 August, 1985
Equivalent citations: 1986(34)BLJR331
JUDGMENT Ashwini Kumar Sinha, J.
1. Whether symbolical delivery of possession infavour of the plaintiff" at the instance of the defendant amounted to attorning to plaintiff as his landlord and whether any payment of rent by the defendant tenant to one Ram Chandra Yadav after 29.9.1977 date of symbolical D.P.) amounted to "default" in payment of rent-are the only significant questions to be considered in this appeal.
2. The points involved being of importance, the case was referred to Division Bench on 9.5.1984.
3. The learned Counsel for the defendant-tenant-appellant has contended that by symbolical delivery of possession, no relationship of landlord and tenant was ever created between the plaintiff and the defendant in the eye of law, and in that view of the matter the plaintiff could not bring the suit for eviction against the defendant.
4. In order to appreciate the submission advanced by the learned Counsel for the appellant it is essential to state a few facts.
A Title Partition Suit (No. 10 of 1967) was filed by one Jai Devi against Hargouri Prasad and others. The present plaintiff (respondent) purchased the suit house from the aforesaid Hargauri and his wife on 27.5.1986 for a valuable consideration of Rs. 5000/-, during the pendency of the aforesaid Title Partition Suit. Thereafter the plaintiff (respondent) filed an application for being added as a party in the suit and he was added as defendant No. 8 in the suit. The aforesaid Title Partition Suit was decreed on 31.3.1973 and the suit house was specifically alloted in the Patti of Hargauri Prasad (Plaintiff's vendor) and it was observed in the judgment that the properties sold to the plaintiff (respondent) (added as defendant No. 8) in the aforesaid Partition Suit by defendant 1st Party will be allotted to the share of defendant 1st party alone on partition.
Accordingly, the present plaintiff (respondent) brought Title Execution Case No. 12 of 1977 for allotment of separate patti of defendant 1st party of the aforesaid Partition Suit and also made a prayer for exclusion of the suit house sold to him by the defendant 1st party (of the Partition Suit) in their Patti. After due notice to the parties, the court appointed a Pleader commissioner, who allotted the patti according to the direction of the court. Thereafter the plaintiff (respondent) prayed for delivery of possession of the suit house to him. After Plaintiff (respondent) prayed for the delivery of possession to him, the defendant-appellant objected. The objection petition filed by the defendant-appellant in the aforesaid Title Execution Case No. 12 of 1977 was numbered as Miscellaneous Case No. 17 of 1977. The Court heard the parties in the Miscellaneous Case No. 17 of 1977 (filed by the defendant-appellant) and after hearing the parties accepted the case of the plaintiff (respondent). As the suit house purchased by the plaintiff (respondent) had been coming in possesion of the defendant as month to month tenant, the plaintiff (respondent) prayed for symbolical delivery of possession of the same and on 29.9.1977 a peon of the civil court delivered symbolical possession to him (plaintiff-respondent) after observing all the formalities required under law in presence of the defendant.
(The words have been italicized by me for emphasis).
It is pertinent to state here that in the miscellaneous case No. 17 of 1977 (filed by the defendant-appellant) the defendant stated that he had no objection, whatsoever, if symbolical delivery of possession was given to the plaintiff (respondent) and it was thereafter that on 29.9.1977 the symbolical delivery of possession of the suit house was given to the plaintiff (respondent) in presence of the defendant and the miscellaneous case was accordingly disposed of. Yet the defendant neglected to pay rent to the plaintiff (respondent) since the month of October 1977 and onward upto the institution of the suit even on repeated demands.
5. Plaintiff's further case was that he had been living in a rented house and sitting idle and hence he had purchased the suit house for his own use and he required the same for his personal necessity. A notice under Section 106 of the Transfer of Property Act was also sent by the plaintiff by a registered post asking the defendant to vacate the suit house by the end of 20th of Feb. 1978, but the defendant (appellant) did not vacate, which necessitated the filing of the present suit (Title Suit No. 23 of 1978) for the eviction of the defendant-tenant on the ground of arrears of rent and personal necessity.
6. The defendant (appellant) contested the suit. The main defence, besides general defences, such as limitation, adverse possession etc., was that there was no relationship of landlord and tenant between the parties. Personal necessity of the plaintiff was also denied.
The defence was that he was inducted in the house by Mohipat Narain (the original owner of the house) in 1962. According to the defence Mohipat Narain died in February 1966 and on his death his widow Most. Jai Devi (plaintiff of aforesaid Partition Suit) stepped into his shoes and he recognised her as his landlord. According to the defence this Jai Devi sold the suit house to one Ram Chandra Prasad Yadav in December 1968 and since then he (defendant-appellant) has been paying monthly rent to him (Ram Chandra Prasad Yadav) and Ram Chandra Prasad Yadav also recognised him (defendant) as a tenant and he has been granting rent receipts to him (defendant). Thus, the defence was that the defendant having been paying regular rent to Ram Chandra Prasad Yadav, he (defendant) was not a defaulter and, in fact, it was Ram Chandra Prasad Yadav, who was his (defendant's) landlord.
With these defences, the defendant's case was that the suit was not maintainable and the reliefs sought for by the plaintiff could not be granted in the eye of law and the suit was fit to be dismissed.
7. The trial court held that there was valid relationship of landlord and tenant between the plaintiff and the defendant. It further accepted the plaintiff's case of personal necessity. However, the trial court disallowed the claim of arrears of rent. Thus, the suit was decreed in part and the trial court directed the defendant to vacate the suit house within 60 days from the date of its order. The trial court further directed the defendant to pay the rent of the house to the plaintiff in future at the rate of Rs. 18/-.
8. Being aggrieved by the judgment and decree of the trial court, the defendant preferred appeal in the court of appeal below. The plaintiff (respondent) also filed a cross-objection. According the to plaintiff-respondent (cross-objection) the trial court had committed an error in not passing a decree for arrears of rent.
9. The appal by the defendant-tenant and the cross-objection by the plaintiff-respondent were heard together by the court of appeal below and the lower appellate court dismissed the defendant's appeal and allowed the cross-objection of the plaintiff-respondent in part. Thus, in short, the main decree for eviction was affirmed by the trial court.
The court of appeal below, agreeing with trial court, held that the defendant (appellant) became a tenant under the plaintiff (respondent) from 29.9.1977 (the date on which the symbolical delivery of possession was given to the plaintiff-respondent in presence of the defendant) and as the defendant did not pay rent to the plaintiff from October 1977, he was a, 'defaulter' in the eye of law. It further held that from 29.9.1977 the relationship of land-lord and tenant between the plaintiff and defendant was established. It further held that he always treated Ram Chandra Prasad Yadav as his landlord and hence he paid rent to him, was absurd. It further held that the defendant-appellant was a defaulter in not making payment of rent from 29.9.1977 and in that view of the matter he was liable to be evicted from the suit house on that ground alone.
The court of appeal below also held that the defendant-appellant was liable to pay the arrears of rent to the plaintiff-respondent from 29.9.1977 at the rate of Rs. 18/- per month and by such a finding, the finding to the contary arrived at by the trial court was reversed.
The trial court, as already stated above, had accepted the plaintiff's case of personal necessity but the court of appeal below reversed this finding and held that the plaintiff-respondent failed to prove that he required the suit house for his personal use and occupation.
However, as the court of appeal below held that there was valid relationship of landlord and tenant between the plaintiff and the defendant and as the defendant was a 'defaulter' in not making payment of the arrears of rent to the plaintiff-respondent from 29.9.1977, the defendant-appellant could not escape eviction from the suit house and in that view of the matter, the court of appeal below dismissed the defendant's appeal and affirmed the decree for eviction passed by the trial court.
10. The learded Advocate for the appellant, as already indicated above, has submitted that the relationship of landlord and tenant was never created between the plantiff and the defendant by the symbolical delivery of possession in favour of plaintiff on 29.9.1977. The learned Counsel submitted that the partition was not a transfer, as the word 'transfer' in Section 5 of the Transfer of Property Act excluded the idea of partition and in that view of the matter even if the suit house was specifically alloted to the share of Hargauri (Plaintiff's vendor) in partition Suit No. 10 of 1967, the suit house was never transferred to Hargauri and hence, though the plaintiff derived title from Hargauri yet the plaintiff never became the lanldlord of the defendant. The learned Counsel, for the proposition, just referred to above, relied upon the case of B. Thakur v. Smt Tara Devi 1967 B.L.J.R. 9. I am afraid the facts of that case were absolutely different and the question canvassed in that case was whether the word 'transfer' occurring in the proviso to Section 4 of Bihar Consolidation of Holdings and Prevention of Fragmentation Act included partition. The question canvassed in that case was whether Section 4 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, was a bar, to the institution of a suit for partition and a decree being passed in that suit. Thus, it would appear that neither the facts were similar nor the question canvassed was identical. Hence, in my opinion, the case relied upon by the learned Counsel for the defendant-appellant does not support the plaintiff's contention.
11. The learned Advocate for the defendant-appellant further relied upon the case of Sheo Shanker Prasad v. Barhan Mistry 1985 P.L.J.R. 358. I, for myself, fail to understand as to how the learned Advocate for the appellant relied upon this case. It does not deal with the points in issue in the instant case at all. The question to be decided in that case was absolutely different. The facts were wholly different. Thus, in my opinion, the case of Shea Shankar Prasad v. Barhan Mistry (supra) has been relied upon by the learned Advocate for the defendant-appellant under a misconception.
The other decision on which the learned Advocate for the defendant-appellant has relied upon is Adyanath Ghatak v. Krishna Prasad Singh and Anr. A.I.R. 1949 P.C. 124. This case also is not applicable to the facts of the present case as this does not deal with the significant points in issue in the instant case.
12. The decree in Partition Suit No. 10 of 1967 was binding on everybody, who was concerned with it. Jai Devi was the plaintiff and Hargauri and others were the defendants and hence all persons claiming through Jai Devi on the one hand and Hargauri on the other hand, were bound by the effect of the decree in the aforesaid Partition Suit. Admittedly, during the pendency of the suit two sale deeds were created. One by Hargauri and others on 27.5.1968 in favour of the plaintiff respondent and the other by Jai Devi in favour of Ram Chandra Prasad Yadav on 4.12.1968. Thus, Ram Chandra Prasad Yadav entered the shoe of Jai Devi whereas the plaintiff respondent entered the shoe of Hargauri and others. The court, while delivering judgment in the aforesaid Partition Suit by Jai Devi, specifically mentioned in the judgment that the suit house will be allotted to the share of Hargauri and others only on Partition, as the same was sold during the pendency of the suit by Hargauri and others and that this was not to bind the share of the plaintiff. Ram Chandra Prasad Yadav did not figure in the judgment at all, though he was also a pendente lite purchaser.
13. When the execution case was filed by the plaintiff respondent No. 12 of 1977 and the plaintiff respondent prayed for delivery of possession, though the objection was filed by the defendant, yet the defendant stated that he had no objection if symbolical delivery of possession was given to the plaintiff respondent and it was, thus, that the objection by the defendant-appellant Miscellaneous Case No. 17 of 1977 was disposed of and in the presence of the defendant the symbolical delivery of possession was given to the plaintiff-respondent on 29.9.1977. In fact, the order dated 13.9.1977 in the Miscellaneous Case No. 17 of 1977 filed by the defendant shows that the defendant had no objection to the symbolical delivery of possession to the plaintiff.
14. The defendant-appellant has not challenged that the symbolical delivery of possession was not valid or that it was not legal. Thus, I hold that the defendant-appellant having filed an objection in the Execution Case filed by the plaintiff respondent and having stated that he had no objection to the symbolical delivery of possession being delivered to the plaintiff and the Miscellaneous Case No. 17 of 1977 filed by the defendant having thus been disposed of and thereafter the symbolical delivery of possession having been given to the plaintiff-respondent at the instance of the defendant, and in presence of the defendant; it, in the eye of law, amounted to the defendant attorning to the plaintiff respondent as his landlord from the date of the symbolical delivery of possession i.e. from 29.9 1977 Thus, on the facts of the instant case, the defendant tenant attorned to the plaintiff as his landlord from 29.9.1977 and the plaintiff became his landlord from that date and the relationship of landlord and tenant between Ram Chandra Prasad Yadav and the defendant stood determined on 29.9.1977.
15. Having held, on facts of the instant case, that the defendant attorned to the plaintiff as his landlord on 29.9.1977 it is clear that the defendant was not in confusion about the identity of his landlord and if he did not pay rent to the plaintiff respondent, to whom the defendant had attorned as his landlord on 29.9.1977 the date on which the symbolical delivery of possession was delivered to him (plaintiff) in presence of the defendant himself, the defendant in the eye of law became a defaulter.
16. For the aforesaid reasons, I hold that there is no substance in the submission advanced by the learned Counsel for the defendant-appellant.
17. In the result, this appeal fails and diamissed. However, there will be no order as to costs.
S.S. Sandhawalia, C.J.
18. I agree.