Rajasthan High Court - Jodhpur
Prem Prakash vs Ganesh Kumar on 14 December, 2020
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 404/2019
Prem Prakash S/o Late Sh. Shiv Narayan, Aged About 54 Years,
R/o M/s Nandev Fancy Store, In Front Of Paliwal Boarding,
Station Road, Phalodi, District Jodhpur (Raj.)
----Appellant
Versus
Ganesh Kumar S/o Late Sh. Loonkaran, R/o Phalodi, District
Jodhpur
----Respondent
For Appellant(s) : Dr. Sachin Acharya (through V.C.)
For Respondent(s) : Mr. Narendra Thanvi (through V.C.)
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 14/12/2020 Heard learned counsel for the parties.
It is submitted by learned counsel for the appellant that the landlord tenant relationship between the appellant and the respondent was not established as though the suit property was purchased by the respondent by registered sale deed, the appellant never attorned and no rent was paid by the appellant to the plaintiff.
Further submissions were made that the award of pendente lite mesne profits @ Rs.15,000 p.m. is highly excessive and not supported from any material available on record. It was, therefore, prayed that the appeal be admitted and execution of the decree be stayed.
Learned counsel for the respondent submitted that insofar as the plea raised by counsel for the appellant in relation to non- (Downloaded on 15/12/2020 at 08:49:25 PM)
(2 of 5) [CFA-404/2019] attornment is concerned, the said aspect has no substance inasmuch as the issue stands squarely covered by provisions of Section 109 of the Transfer of Property Act, 1882 ('the Act, 1882') and the judgment of this Court in L.Rs of Late Shri Guru Bux Singh vs. Khem Singh : 2014 (3) WLN 34.
Further submissions were made that the trial court was justified in awarding the amount of mesne profits @ Rs.15,000 p.m. It was submitted that there is no substance in the appeal and the same deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The trial court by its impugned decree has ordered for delivery of possession of the suit shop to the plaintiff, payment of rent for the period August, 2012 to July, 2013 @ Rs. 4,000/- p.m. and from the month of August, 2013 till possession of the suit shop is delivered @ Rs.15,000/- p.m. as mesne profit.
So far as the issue pertaining to eviction of the appellant from the suit shop is concerned, the plea raised in relation to non- attornment has apparently no substance.
This Court in the case of L.Rs of Late Shri Guru Bux Singh (supra) after considering the law on the said aspect inter alia laid down as under:
"Section 109 of the Transfer of Property Act, 1882 ('the T.P. Act'), on which, strong reliance was placed by learned counsel for the appellant, reads 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 (Downloaded on 15/12/2020 at 08:49:25 PM) (3 of 5) [CFA-404/2019] the lease, unless the lease 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, prays 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."
The above provision provides that on account of transfer of ownership of the premises to the respondent by the previous lessor, the respondent becomes the lessor and becomes entitled to receive the rent in terms of the lease by operation of Section 109 of the T.P. Act. No attornment of tenancy is necessary in law as the above Section creates a statutory attornment and the Section does not insist that the transfer of the lessor's right can take effect only if the tenant attorns as attornment by tenant is unnecessary to confer validity to the transfer of lessor's right. However, the Section protects payment of rent by the tenant to the transferor without notice of the transfer. The transfer of ownership of the premises to the respondent by the previous lessor results in statutory attornment by the tenant in favour of the lessor's transferee and consequently jural relationship of landlord and tenant, the said right of transferee under Section 109 is not curtailed or modified by the T.P. Act.
This Court in the case of Ram Saran (supra) held and observed as under:-
"17. As regards the law of attornment, envisaged under Section 109 of the Act of 1882, it is held that Section 109 of the said Act does not require service of notice on the tenant, on alienation of property, to create relationship of landlord and tenant between the transferee landlord and the existing tenant. The transferee of the lessor steps into the shoes and possess all the rights, which the transferor has and the attornment is not a condition precedent, to give validity to the transfer made in favour of the transferee. Section 8 of the Act of 1882 specifically provides that a transfer of property passes forthwith, to the transferee, all the interests, which the transferor is capable of passing in the property, including the legal incidents thereof and such incidents include the rents and profits thereof. Once the title of the assignee is complete, the attornment is automatic not dependent on the teant's attorning or agreeing to the attornment. An identical question came up for consideration in case of Mahendra Raghunath Das (supra), wherein, it is ruled by the Supreme Court, which reads thus:
"It is well settled that a transferee of a landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The Section does not require that the transfer of the right of the landlord could take effect only if the tenant attorns to him. Attornment by tenant is not necessary to confer the validity of the transfer of the landlord."
18. The aforesaid question also came up for consideration, before me, in case of (6) Mohd. Hussain V. Uakoob, reported in 1997 (2) RCR 443, wherein, it is ruled that tenant has not legal justification to question (Downloaded on 15/12/2020 at 08:49:25 PM) (4 of 5) [CFA-404/2019] oral gift. Giving notice to tenant by landlords regarding change in ownership is a mere technicality. It was held in the aforesaid case that question of title is foreign, in a suit for eviction by landlord against tenant, but in abundant caution, where such issues are found to be necessary, it can be raised incidentally. It was held that because the transferee is clothed with right to recover rent and eject lessee, no payment of rent or attornment to lessor is necessary. The decision cited by the learned counsel for the landlord plaintiff respondent, mentioned hereinabove, indicates towards the aforesaid conclusion. Thus, the question of attornment by landlord, is no more res integra.".
As such, from the above, it is apparent that neither any attornment was necessary on part of the tenant for conferring the right to receive the rent, nor any notice in this regard was necessary for the purpose of alleged attornment."
The trial court has found that the tenancy of the appellant has been validly terminated by complying with the provisions of Section 106 of the Act, 1882.
In view thereof, the plea raised in relation to eviction of the appellant from the suit shop in question lacks any merit.
Insofar as the award of mesne profit during the pendency of the suit is concerned, the award of mesne profit @ Rs.15,000/- p.m. w.e.f. August, 2013, after coming to the conclusion that for the period from August, 2012 to July, 2013, the plaintiff was entitled to rent @ Rs.4,000/- p.m., the issue requires consideration on the quantum of amount of mesne profit as awarded.
In view thereof, on the limited ground of award of mesne profit by the trial court from August, 2013 till handing over of possession of the suit shop, the appeal is admitted.
As already observed hereinbefore, insofar as the issue of eviction is concerned, the appellant has no prima facie case and, therefore, the question of balance of convenience and irreparable injury to the appellant qua the said aspect does not arise. (Downloaded on 15/12/2020 at 08:49:25 PM)
(5 of 5) [CFA-404/2019] So far as the decree pertaining to the award of mesne profit is concerned, to the extent of award of mesne profit beyond Rs.4,000/- p.m., the appellant is entitled to grant of interim order.
Consequently, the stay application filed by the appellant qua the eviction from the suit shop is dismissed.
However, the execution of the decree qua mesne profit is stayed to the extent that the plaintiff would be entitled to mesne profit @ Rs.4,000/- p.m. from August, 2012 till handing over of possession of the suit shop to the plaintiff.
In case of failure on the part of appellant to deposit/pay the amount of mesne profit for the period indicated above @ Rs.4,000/- p.m. within a period of six weeks, the above order shall also come to an end automatically.
Stay application is disposed of accordingly.
(ARUN BHANSALI),J 4-baweja/-
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