Allahabad High Court
State Of U.P. Thru' Collector Allahabad ... vs Smt. Sharda Maheshwari on 29 January, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD (Judgment reserved on 06.09.2012) (Judgment delivered on 29.01.2013) Court No. - 58 Case :- SECOND APPEAL No. - 120 of 2007 Petitioner :- State Of U.P. Thru' Collector Allahabad & Others Respondent :- Smt. Sharda Maheshwari Petitioner Counsel :- Vijendra Singh,C.S.C. Respondent Counsel :- Manish Goyal Hon'ble Sibghat Ullah Khan,J.
Heard Sri P.P. Chaudhery, learned standing counsel for appellants, State of U.P. and its authorities and Sri Manish Goel, learned counsel for plaintiff respondent.
This is defendant's second appeal arising out of suit for possession and demolition of constructions which was dismissed by the trial court but lower appellate court allowed the appeal and decreed the suit. The suit (O.S. No.377 of 1994) was dismissed by Additional Civil Judge, Senior Division, Court No.13, Allahabad. Against the said decree plaintiff respondent filed Civil Appeal No.1 of 2006, which was allowed by A.D.J. Court No.13, Allahabad on 28.10.2006, judgment and decree passed by the trial court was set aside and suit of the plaintiff respondent was decreed.
Property in dispute is a nuzul plot (lease-hold right therein) belonging to the State Government situate in Civil Station, Allahabad bearing plot No.NN/B, area 3744 square yard (=3130.35 square meter). In the plaint map, the entire property in dispute was shown by letters A B C D and a very small portion within A B C D was shown by letters E F G H bearing house No.9/1, Kanpur Road. Relief of possession was sought over the entire plot A B C D except E F G H part thereof over which plaintiff claimed that she was in possession. Lower appellate court decreed the suit directing the defendant to deliver vacant possession of the land shown by letters A B C D in the plaint map excluding that portion which was shown by letters E F G H regarding which it was declared that plaintiff was already having her house thereupon and was in possession thereof. Through this second appeal, judgment and decree passed by the lower appellate court has been challenged.
It is undisputed that the property in dispute is a nuzul land and it was part of bigger plot no. NN which had been given on lease by the State Government to M/s E.J. Lazarns and Co. for 50 years on 17.08.1860 and period of lease was renewed for 50 years through Indenture dated 12.04.1911 in favour of Dunken Degunjther who assigned his rights to M/s A.H. Wheeler and Co. Before the expiry of period of 50 years, M/s A.H. Wheeler and Co. requested the Collector of Allahabad to sanction partition of the site into two portions NN/A and NN/B and further requested that two separate leases of both the portions might be executed for the remaining period of about ten years in favour of M/s A.H. Wheeler and Co. His request was accepted and a lease deed (Indenture) was executed on 08.05.1951 between the Governor of U.P. and M/s A.H. Wheeler and Co. Elgin Road Allahabad. Lease deed of plot No.NN/B situate at T.B. Sapru Road in the municipality of Allahabad, area 3744 square yards (i.e. plot in dispute) for the remaining period of ten years eleven months and twenty five days from 23.08.1949 (ending on 16.08.1960) was filed by the plaintiff in the suit. One of the conditions of the lease deed was that lessee was not to assign or underlet or otherwise part with the possession of the said premises or any part thereof without the permission of the State, Governor of U.P. (which permission might be signed by the Collector). NN/B was southern portion of the bigger plot initially numbered as NN and northern portion of the bigger plot was numbered as NN/A. The lease deed dated 8.5.1951 did not contain any provision of right of renewal or grant of fresh lease.
Plaintiff had earlier filed suit for permanent prohibitory injunction against the defendant appellant (O.S. No.827 of 1988), however the said suit was got dismissed as withdrawn with permission to file fresh suit on the ground that the defendant State had forcibly dispossessed the plaintiff from substantial part of the plot in dispute (NN/B) except a small portion shown by letters E F G H in the plaint map. Some other defects were also pointed out in the said suit. Thereafter, the suit for possession and demolition giving rise to the instant second appeal was filed.
In para-1 of the plaint, it was stated that State of U.P. renewed the lease deed dated 08.05.1951 to 17.08.1971 by the deed dated 17.08.1960. This fact was denied by the defendant appellant and plaintiff also did not file the alleged renewal deed dated 17.08.1960.
In the written statement it was stated that the period of the lease in question had expired in 1960 and Superintending Engineer and Executive Engineer of the irrigation department requested the government in 1963 to allot the plot to irrigation department and the request was repeated on 04.07.1987 stating therein that the plot was required for making residential colony for employees of the irrigation department and other construction of the department. In para-36 of the written statement, it was stated that administrator Nagarmahapalika, Allahabad through letter dated 07.05.1988 gave formal possession of the plot in dispute NN/B to the State Government/ irrigation department.
It is undisputed that adjoining plot No.NN/A was already in tenancy occupation of the irrigation department.
Regarding title to the property in dispute, plaintiff asserted that through family partition which was recognised through decree passed in O.S. No.762 of 1955 between family members of M/s A.H. Wheeler and Co., the plot in dispute came in the share of Smt. Puspa Banerjee, that Smt. Puspa Banarjee executed an unregistered agreement for sale in favour of the plaintiff on 09.04.1971, that plaintiff filed O.S. No.55 of 1979 against Smt. Puspa Banarjee which was decreed on 29.05.1979 and in execution of the said decree (Execution Case No.46 of 1980) sale deed was executed by the executing court on behalf of Smt. Puspa Banarjee in favour of the plaintiff on 16.01.1983 and registered on 17.01.1983. However in para-10 of the plaint, one more date of registration of sale deed has been mentioned i.e. 26.03.1986. It is also stated in the plaint that Smt. Puspa Banarjee on 26.07.1980 (i.e. after suit for specific performance filed by the present plaintiff against her had been decreed) deposited Rs.3687.60 as premium and Rs.99.19 as lagan for renewal of the lease. Request for renewal of lease was rejected in 1995, i.e. after filing of the suit.
The main defence of the defendant appellant State of U.P. was that lease of A.H. Wheeler and Co. expired on 16.08.1960, hence on 09.04.1971 Smt. Puspa Banarjee, (who had got the exclusive lease-hold right of the plot through decree passed in partition suit) could not execute any agreement for sale. It has been argued in the alternative that even if it is assumed that the lease was extended uptil 17.08.1971 and even if it is assumed that A.H. Wheeler and Co. or Smt. Puspa Banarjee had right of renewal of lease, such right which is termed as holding over is not transferable. The anchor-sheet of the defence of the defendant appellant is that under the deed dated 08.05.1951, assignment/ transfer of lease-hold right was permissible only with the consent of the Governor/ Collector however, agreement was executed without any such consent and sale deed was also executed by the executing court pursuant to the decree for specific performance without the consent of the Governor/ Collector. In the suit for specific performance (O.S. No.55 of 1979) State of U.P. or any of its authorities were not parties.
Regarding the question of extension of lease from 17.08.1960 to 17.08.1971, the case of the plaintiff is that similar leases were executed on the said date i.e. 08.05.1951 in respect of plot No. NN/A and NN/B and in the same manner both the leases were extended for ten years from 17.08.1960 to 17.08.1971 and that irrigation department was tenant in the adjoining plot No.NN/A on behalf of Puspa Banarjee who filed suit for eviction against them in the form of O.S. No.169 of 1978, Puspa Banarjee Vs. Executive Engineer, Irrigation Department, U.P. and in the said suit, irrigation department did not question the title of Smt. Puspa Banarjee.
This second appeal was admitted on 15.02.2007 on the following substantial questions of law:
(i) Whether the plaintiff respondent has acquired any right, title or interest in the property in question as the vendor of the plaintiff could not transfer any right?
(ii) Whether decree passed in Execution Case No.46 of 1980 is binding upon the defendants appellants?
iii) Whether under the transfer made by the original lessee in favour of the present plaintiff, the plaintiff has acquired any right, title or interest in the property in dispute?
(iv) What will be the effect of O.S. No.169 of 1978 between Smt. Puspa Banarjee Vs. Abhiyanta, Irrigation Circle, Allahabad?
Substantial Qeustions of Law No.(iv):-
As far as O.S. No.169 of 1978 filed by Puspa Banarjee against irrigation department is concerned, it was in respect of adjoining plot (NN/A), which was admittedly in tenancy occupation of the irrigation department since 1953 when lease dated 08.05.1951 was continuing. Tenant can not deny title of the landlord by virtue of Section 116, Evidence Act. In any case, even according to the case taken up by the plaintiff, the renewal of lease of 1951 was granted from 17.08.1960 to 17.08.1971. Accordingly it had expired long before 1978. If the irrigation department in the eviction suit of 1978 did not question the title of Puspa Banarjee and did not claim the title in itself (State Government), it cannot have any bearing upon the instant case as it relates to another plot No.NN/B. Last but not the least, Smt. Puspa Banarjee might claim holding over right which cannot be claimed by the plaintiff of the instant suit.
Substantial Questions of Law No.1, 2 & 3:-
These questions are interrelated and can be decided jointly. The decree for specific performance passed in O.S. No.55 of 1979 and execution of the sale deed by the court in Execution Case No.46 of 1980 cannot have any binding effect upon the defendant appellant. Firstly for the reason that it was not a party thereto and secondly Smt. Puspa Banarjee had no right to execute the agreement for sale or at least sale deed after 17.08.1960 or by maximum after 09.07.1971. If a sale deed is executed pursuant to an agreement for sale either by the vendor himself or by the court in execution of decree for specific performance then the vendor must have transferable title and interest at both junctures i.e. at the time of execution for the agreement as well as at the time of execution of the sale deed. In the instant case even at the time of execution for agreement for sale dated 09.04.1971 Smt. Puspa Banarjee had ceased to have any right, title or interest in the property in dispute. If it is assumed that lease continued till 17.8.1971 still in 1983 the executing court could not execute the sale deed in favour of the plaintiff on behalf of Smt. Puspa Banarjee as Smti Banerji herself was not competent to do so.
In the lease deed dated 08.05.1951 itself there was a restriction of transfer without taking permission from Governor/ Collector, hence even if Smt. Puspa Banarjee had been a valid continuing lessee until 1983 still sale deed could not be executed by or on her behalf without consent/ permission of the Governor/ Collector, which was not obtained (in fact never applied for).
Learned counsel for plaintiff respondent vehemently argued that even if pursuant to non renewal of the lease, State Government was entitled to obtain possession it could not do so unilaterally and it should have approached the court for getting possession or should have got possession through proceedings under Public Premises Eviction of Unauthorised Occupants Act. For this proposition reliance has been placed upon State of U.P. Vs. Maharaja Dharmendra Prasad Singh, AIR 1989 SC 997. However in this regard reference may be made to the authority of the Supreme Court reported in Azim Ahmad Kazmi Vs. State of U.P. and another, 2012 (8) ADJ 252 (S.C.) wherein it has been held that after termination of lease State Government can occupy any land without initiating any proceedings. That was also a case of nuzul land of Allahabad where lease had been determined by the State Government on the ground that the property was required for public purpose.
Learned counsel for the plaintiff respondent has most vehemently placed reliance upon the judgment of the Supreme Court reported in State of U.P. Vs. Lalji Tandon 2004 (1) SCC 1. However, that was a case where application for renewal of the lease had been filed and State authorities had made favourable recommendations for renewal. In the instant case amount for renewal was deposited by Smt. Puspa Banarjee on 26.07.1980 i.e. after 12 or at least 9 years of date of expiry of lease. Meanwhile she executed agreement for sale in favour of the plaintiff Sharda Maheswari and suit for specific performance was pending. Firstly, even Smt. Pushpa Banerji had no right to get the lease renewed, no recommendation for renewal was made in her favour and application was ultimately rejected in 1995. Secondly, plaintiff being total stranger can neither apply for renewal nor in fact applied for renewal nor she could get any advantage of application for renewal filed by Smt. Puspa Banarjee as it has already been held that after the expiry of lease, the holding over lessee has no right, title or interest which he or she can assign.
Government Grants Act, 1895 expressly provides that nothing contained in Transfer of Property Act will apply to any grant or other transfer of land or any interest therein made by or on behalf of Government to or in favour of any person (Section-2).
Even otherwise under Transfer of Property Act, a tenant who is continuing in possession after determination/ expiry of lease is called a tenant at sufferance. In Badrai Lal Vs. Municipal Corporation of Indore, AIR 1973 SC 508, it has been held that a tenant at sufferance has no legal title to the land but holds it merely through the latches of the landlord.
In R.V. Bhupal Prasad Vs. State of A.P., AIR 1996 SC 140, it has been held that cinema licence of a person carrying cinemas business in a tenanted accommodation cannot be renewed after expiry/ determination of lease as in such situation licencee is only a tenant at sufferance having got no legal title or possession. Similar view has been taken in M/s Raptakos Bredd and Co. Vs. Ganesh Property, AIR 1998 SC 3085 and Kewal Chand Mimani Vs. S.K. Sen, AIR 2001 SC 2569 wherein it has been held that possession after expiry of lease is juridical possession which cannot always be equated with legal possession. In Murlidhar Jalan Vs. State of Meghalaya, AIR 1997 SC 2690, it has been held that if after expiry of Government lease some lower level officer accepts rent, it does not amount to renewal of lease.
Accordingly, even though under Section 108 (j), a lessee may transfer his interest in the property but firstly by the opening words of the said Section this right has been made subject to the contract to the contrary and secondly transfer may be only during continuance of interest in the property. After determination/ expiry of lease tenant has got no right in the lease.
In this regard reference may also be made to Section 6(e) of Transfer of Property Act where it is provided that mere a right to sue cannot be transferred. Similarly, right to apply for renewal cannot be transferred.
The lower appellate court held that lease deed dated 08.05.1951 only prohibited mortgage (bandhak) and not sale. It is not understandable that from where lower appellate court got it. In the lease deed, prohibition was against assignment. Transfer of lease hold right/ lessee's right is called assignment. Accordingly, the substantial questions of law No.1 to 3 are also decided in favour of the appellant and against the plaintiff respondent. Second Appeal is allowed. Judgment and decree passed by the lower appellate court is set aside and judgment and decree passed by the trial court dismissing the suit is restored.
Order Date :- 29.01.2013 NLY