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Smt. Provati Devi Vs. Bokul Chandra Nath and anr. - Court Judgment

LegalCrystal Citation
Subject;Tenancy
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 141 of 1980
Judge
ActsTransfer of Property Act, 1882 - Sections 109; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 7
AppellantSmt. Provati Devi
RespondentBokul Chandra Nath and anr.
Appellant AdvocateS.K. Senapati, Adv.
Respondent AdvocateS.R. Bhattacharjee, Adv.
DispositionPetition dismissed
Excerpt:
- - 7. as regards the plaintiff's right, title and interest after his purchase of the suit holding by the registered sale deed, executed by the guardian of the minor landlord with due permission of the court, it may be observed that section 109 of the transfer of property act clearly provides that 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; the ratio of this case is clearly not applicable to the case at hand. in the written statement there, the defendants had clearly denied the tenancy as..........tenant smt. provati devi was sued by the plaintiff-respondent no. 1 for arrears of rent for the suit holding @ rs. 70 per month and compensation, for the period from 16-8-76 to 31-7-77 totalling rs. 1,000. the pro formadefendant-respondent no. 2 shri nipu ranjan sana was the minor landlord. the plaintiff claimed to have purchased the suit holding by a registered sale deed dated 16-8-76 and to have acquired the right, title and interest thereon from the pro forma defendant and hence claimed arrear rent from the defendant-petitioner, or, if she has already paid to the pro forma defendant, from him. the defendant-petitioner resisted the suit on two grounds. first, the sale by the pro forma defendant to the plaintiff was collusive as the former having been a minor his father purna chandra.....
Judgment:

K.N. Saikia, J.

1. This Civil Revision is from the appellate judgment and decree of the Assistant District Judge, Karimganj, Cachar, dismissing the appeal The defendant-petitioner tenant Smt. Provati Devi was sued by the plaintiff-respondent No. 1 for arrears of rent for the suit holding @ Rs. 70 per month and compensation, for the period from 16-8-76 to 31-7-77 totalling Rs. 1,000. The pro forma

defendant-respondent No. 2 Shri Nipu Ranjan Sana was the minor landlord. The plaintiff claimed to have purchased the suit holding by a registered sale deed dated 16-8-76 and to have acquired the right, title and interest thereon from the pro forma defendant and hence claimed arrear rent from the defendant-petitioner, or, if she has already paid to the pro forma defendant, from him. The defendant-petitioner resisted the suit on two grounds. First, the sale by the pro forma defendant to the plaintiff was collusive as the former having been a minor his father Purna Chandra Saha earlier agreed to sell the suit holding to the defendant-petitioner for Rs. 12,000 and to execute the sale deed, and pursuant to that agreement the defendant-petitioner incurred costs of electrical installations on the suit holding amounting to Rs. 570.65 P. and she offered to pay the balance of Rs. 11,429.35 P. on 1-8-77 and as such she was entitled to specific performance of that contract. Secondly, the defendant-petitioner having denied the title of the plaintiff the rent suit simpliciter without a prayer for declaration of title over the suit-holding could not be decreed. The pro forma defendant filing a separate written statement stated that he validly sold the suit holding to the plaintiff on 16-8-76 by registered sale deed with information to the defendant-petitioner.

2. The trial Court found that the sale deed was executed by the father and guardian of the pro forma defendant landlord with due permission from the District Judge and the transfer was valid; the plaintiff acquired right, title and interest over the suit holding and the defendant-petitioner became a tenant of the plaintiff; that there was no authority for deduction of the electric installations cost of Rs. 570.65 P.; and, accordingly, decreed the suit for Rs. 70 from the defendant and Rs. 735 from the pro forma defendant to whom it was paid.

3. On appeal the learned Assistant District Judge affirmed the decree. Hence this revision by the defendant-petitioner only. The pro forma defendant has not moved for revision.

4. Mr. S. K. Senapati, the learned counsel appearing for defendant-petitioner submits, firstly, that the pro forma defendant's father Purna Chandra Saha having agreed to sell the suit holding to her at Rs. 12,000, and she having partly performed her part, both the Courts below ought to have held that the defendant-petitioner had the right to specific performance of the contract of sale and the subsequent sale by the pro forma defendant's father to the plaintiff by registered sale deed dated 16-8-76 was void and the plaintiff acquired no right over the suit holding thereunder; and secondly, that the defendant-petitioner having denied the right, interest and title of the plaintiff over the suit holding the plaintiff ought to have prayed for a declaration of title and without such a declaration the suit for arrear of rent was not maintainable.

5. Mr. S. R. Bhattacharjee, the learned counsel appearing for the respondent-plaintiff answers that there is no proof of any agreement to sell to the defendant-petitioner and the plea was rightly rejected by both the Courts below; and that the defendant-petitioner did not question the right, title and interest of the plaintiff and, as such, there was no need for the plaintiff to have prayed for a declaration of title, and the Courts were correct in decreeing the suit for arrear of rent.

6. As regards the contention that Puma Chandra Saha entered into an agreement to sell the suit holding to defendant-petitioner Smt. Provati Devi and of her having performed a part of the contract by incurring expenses for electric installations, the learned Courts below held that there was no evidence of any such oral agreement as the two alleged witnesses, namely, Kanailal Poddar and Kandarpa Bhattacharjee were not examined by the defendant-petitioner. Apart from this being a finding of fact, it may be observed that only after specific performance of that contract the defendant-petitioner could have claimed that her lesser estate of leasehold got merged in her greater estate of ownership by purchase. Court may look to the benefit of the person in whom two interests coalesce, but does not recognise any absolute right to specific relief. In other words, the right to specific execution is not absolute, its enforcement resting on sound discretion of the court to be exercised consistently with accepted principles of law. No evidence of the agreement having been adduced, it could not be said that the two estates coalesced in her so as to enable her to resist the plaintiff's suit. The contention is, therefore, rejected.

7. As regards the plaintiff's right, title and interest after his purchase of the suit holding by the registered sale deed,

executed by the guardian of the minor landlord with due permission of the Court, it may be observed that Section 109 of the Transfer of Property Act clearly provides that 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 transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reasons 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. In the instant case the defendant-petitioner paid the rents except for one month to the pro forma defendant, and she cannot be liable to pay over again; and the Courts below rightly decreed one month's rent against the defendant-petitioner and the rest against the pro forma defendant.

8. The next contention of Mr. Senapati is also not tenable. In an ejectment or rent suit it cannot be laid down as a general proposition that under all circumstances the transferee landlord must first pray for a declaration of title and then only for arrears of rent on the basis of such a title. Mr. Senapati relied on AIR 1978 NOC 153 (All). After the hearing was closed he prayed for permission to furnish one or two more references with copies to the respondents; and he gave AIR 1976 Gauhati 48 and AIR 1980 Gauhati 30. To give a fair opportunity of reply to the respondent, the case was listed for further hearing, when Mr. Bhattacharjee referred to AIR 1973 Gauhati 139.

9. A tenant is estopped from denying the initial title of his landlord over the tenanted premises during continuance of the tenancy. Section 116 of the Evidence Act deals with it. In Laik Ahmad v. Smt. Surjo, AIR 1978 NOC 153 (All), it was held that estoppel contemplated in Section 116 of the Evidence Act does not apply where a landlord transfers his property, in which there is a tenant, to another person. Section 116 provides that no tenant of immovable property, or per-

son claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. It was further held in that case that in a case where the question is as to the right of the tenants to plead that the purchasers from landlord are not the exclusive owners of the property in charge and there is another person of his name of the owner along with the purchaser. Section 109 would be of no assistance to the purchasers. The ratio of this case is clearly not applicable to the case at hand. In AIR 1973 Gauhati 139, Kazi Taufiquor Rahman v. Bewa Elachi Bibi the plaintiff's case was that he was the absolute owner of the suit land which devolved on him by virtue of a registered deed of gift from one Kazi Kayambir Rahman. The defendant-respondent was a tenant of one Kazi Kayambir Rahman and upon the aforesaid gift, which was challenged by the defendant, became the plaintiff's tenant. The plaintiff's suit for ejectment of the defendant was dismissed by the Munsiff which judgment was affirmed in appeal. Under those facts and circumstances it was held that where in a suit for ejectment the title to the suit land was not put in issue even though challenged, nor was any evidence adduced with regard to the title or any finding arrived thereon, the plaintiff cannot be granted a decree for ejectment.

10. In Rajballav v. Kamalarani, AIR 1976 Gauhati 48 it was held that the ejectment suit simpliciter should not be allowed to be converted into a title suit in the Second Appeal stage since the plaintiffs had not cared to convert that into a title suit with alternative prayer for declaration on the basis of title failing to prove tenancy. In the written statement there, the defendants had clearly denied the tenancy as well as the plaintiff's ownership of the suit properties from which the defendants were sought to be evicted. It was observed that to allow the plaintiffs a chance to convert ejectment suits simpliciter into title suit at the Second Appeal stage and that also to be tried from the first appellate stage would mean giving premium to aggrieved plaintiff's gross negligence in prosecuting his case in accordance with law and it would cause prejudice to the contesting defendants.

11. In Brij Bihari v. Deoki Devi, AIR 1978 Pat 117 it was, however, held that whenever there is an assignment of the

interest of a lesser or the interest of a lessee in a lease a new relationship comes into existence between the two sets of persons, one of whom was not a party to the original agreement. But in view of Section 109 there is no requirement of attornment by lessee. In view of this provision the assignee of the lessor has, against the lessee, all the rights that the lessor had and can enforce not only covenants but even conditions. The right to receive rent in terms of lease is one of such rights which passes to the assignee and the lessee cannot say that he is not bound to pay the same as he used to pay and there is no privity of contract between him and the assignee. In Nurath-mal Jain v. Smt. Tarinibala Bora, AIR 1980 Gauhati 30, the decisions in AIR 1973 Gauhati 139 and the judgment in S. A. No. 80 of 1968 (Assam) were distinguished on facts.

12. From the above decisions it can-not be said that whenever in a written statement the defendant disputes the transferee-plaintiffs title to the tenanted premises he shall be required to convert his ejectment or rent suit into a title suit. It will depend on how the question of title of the transferee-plaintiff transpires out of the pleadings and proof in the suit. Where the defendant admits the transferee-plaintiffs title, obviously no question of declaration of title will arise. When there is total or absolute denial of the transferee's title, the question of declaration of title will arise. In between these two extremes a series of situations may be encountered. His denial of title may be on the basis of denial or validity of the derivative or acquisitive transaction. If there is clear proof of the transaction of transfer and its validity, Section 109 of the Transfer of Property Act will surely be attracted and the transferee must be deemed to have possessed all the rights of the transferor. Under Section 116 of the Evidence Act the lessee is estopped from denying that the lessor had no initial right to transfer, which was an incident of title. Countenancing any such plea will necessarily curb the rights of the landlord. If the challenge to title is based on denial of devolution, testamentary or intestate succession, gifts or operation of law, it will depend on the extent of the cloud created by the challenge, and the nature and adequacy of the evidence adduced by the parties on the issue specifically or impliedly raised. If the parties have adduced evidence and the Court on basis thereof has found

the derivative or acquisitive transaction or the devolution to have been proved and title thereby conveyed, devolved or acquired, there may be no question of the ejectment suit or rent suit simpliciter itself being converted into a suit for declaration of title and the relief of arrear rent or ejectment being otherwise denied to the transferee landlord. Where, however, no such issue is raised and evidence adduced and no such finding as to the transferee landlord's title and factum or validity of the transfer is arrived at, despite challenge by the defendant, and yet the suit for ejectment or arrear of rent simpliciter is decreed, the Court may be said to have been in error. On the other hand where the title of the transferee landlord is disputed on the basis of some defect in the transaction of transfer inter vivoa, and the Court comes to the conclusion that there was no such defect and the transfer was perfectly valid and it conveyed the title on the transferee, no infirmity can be found, if on that basis the suit simpliciter for ejectment or arrear rent is decreed.

13. As was observed in Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735, there is no doubt that if a party prays for a relief on clear and specific grounds and in the issues or at the trial none else is covered expressly or by necessary implication, he may not be allowed to succeed on a new ground, but the Court should bear in mind that considerations of form cannot override the due consideration of the substance. Though a plea is not expressly or specifically raised, yet it can legitimately and impliedly be covered by another, and the parties knew their cases and adduced evidence at the trial to support their cases, then a party may not be disentitled to relief if the plea is otherwise proved at the trial. To the general rule that the relief be founded on the pleadings of the parties, too technical a view may not always be justified, particularly where the parties knew what was the matter involved in the trial and led evidence about it and no prejudice is caused to either of the parties. In Bhagawati Prasad's case (supra) in the suit for ejectment the defendant admitted the title of the plaintiff in regard to the plot and pleaded that he was to remain in possession of the house until the amount spent by him in its construction was returned by the plaintiff. The plaintiff led evidence about the tenancy set up by him and the defendant led evidence about agreement

on which he relied. Both the pleas were clear and specific and the common basis of both the pleas was that the plaintiff was the owner and the defendant was in possession by his permission, Held, that in the absence of proof of tenancy and of defendants' agreement the conclusion of the High Court in first appeal that the defendant was in possession of the suit premises by leave and licence of the plaintiff, did not cause prejudice to the defendants and that there was no error in the decree of ejectment.

14. In the instant case, though there was no express and specific issue on title, yet it was implied in the Issue No. 1, namely, 'Is there any relationship of landlord and tenant between the plaintiff and the defendant No. 1?' The parties adduced evidence on that issue and the trial Court found that the registered sale. to the plaintiff was valid, which impliedly meant that he had title over the suit holding. Once the transfer is held to be valid Section 109 of the Transfer of Property Act is clearly applicable and no objection is permissible contrary to the consequences as to acquisition of rights provided thereunder. There was really no need for a further prayer for declaration of title. The contention has, therefore, to be rejected.

15. For the foregoing reasons, there is no merit in the petition which is rejected, but without costs. The Rule is discharged. Petition dismissed.


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