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Sajjan Singh Vs. Smt. Jamuna Bala Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3680 of 1958
Judge
Reported inAIR1960All410
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 2 and 3(1); Transfer of Property Act, 1882 - Sections 106; Evidence Act, 1872 - Sections 101 to 104
AppellantSajjan Singh
RespondentSmt. Jamuna Bala Devi and anr.
Appellant AdvocateV.K. Barman, Adv.
Respondent AdvocateR.K. Srivastava, Adv.
DispositionAppeal allowed
Excerpt:
.....rent and eviction act, 1947 and section 106 of transfer of property act , 1882 - permission obtained by the landlord to evict tenant on bonafide grounds - the permission granted confers a personal right - does not extend for the benefit of the successor-in-interest of the landlord - latter to make out his own case before district magistrate - notice under section 106 does not allow filing of suit of eviction by successor-in-interest. (ii) onus - section 106 of transfer of property act, 1882 - copy of notice in the suit not containing signature of landlord - presumed as true copy - onus to prove as original lies on the landlord. - - the rent control and eviction officer, mathura on 6-8-1954, after hearing the parties, held that he wag 'satisfied .that the needof the applicant is bona..........was allotted to the share of sirohat kumar gangoli, plaintiff respondent no. 2. he filed the suit for eviction of the appellant, taking advantage of the permission obtained by his mother, the previous landlord.3. this second appeal raises an important question whether the permission obtained by a landlord under section 3(1) of the u. p. rent control and eviction act to file a suit is transferable in favour of successor or transferee. in her application for permission to eject the appellant, smt. iamini bala devi alleged that (1) he was an undesirable tenant and (2) she required the premisesoccupied by him for her family and for her personal use. the rent control and eviction officer, mathura on 6-8-1954, after hearing the parties, held that he wag 'satisfied ...... that the needof.....
Judgment:

S.S. Dhavan, J.

1. This is a tenant's second appeal against a decree for ejectment. The appellant Sajjan Singh was the tenant of Smt. Jamini Bala Devi. The parties live in Mathura and the house in dispute is situate in that city and is subject to the provisions of the Control of Rent and Eviction Act. The lady obtained the permission of the Rent Control and Eviction Officer, Mathura, under Section 3 of the Act to file a suit for the appellant's ejectment. The permission was given on the ground that the lady needed the house for her own use, and this decision was confirmed in revision by the Commissioner on 21-1-1956. who also based its decision on the genuineness of the need of Smt. Jamini Bala Devi.

2. After obtaining permission, but before filing the suit for the eviction of the tenant, the lady partitioned her property between her four sons. The house in dispute was allotted to the share of Sirohat Kumar Gangoli, plaintiff respondent No. 2. He filed the suit for eviction of the appellant, taking advantage of the permission obtained by his mother, the previous landlord.

3. This second appeal raises an important question whether the permission obtained by a landlord under Section 3(1) of the U. P. Rent Control and Eviction Act to file a suit is transferable in favour of successor or transferee. In her application for permission to eject the appellant, Smt. Iamini Bala Devi alleged that (1) he was an undesirable tenant and (2) she required the premisesoccupied by him for her family and for her personal use. The Rent Control and Eviction Officer, Mathura on 6-8-1954, after hearing the parties, held that he wag 'satisfied ...... that the needof the applicant is bona fide'', but made no comment on her allegation against the conduct of Sajjan Singh as a tenant. He granted her permission to file a suit. On 8-10-1955, the appellant Sajjan Singh was served with a notice requiring him to vacate the accommodation.

The appellant Sajjan Singh filed a revision against this order which was dismissed by the Commissioner on 21-1-1956. Eight months later, on 20-9-1956, the lady partitioned her property and transferred the allotted shares to her sons. Th accommodation in dispute was given to Sirohat Kumar Gangoli, plaintiff respondent No. 2, who became its owner and landlord on that date. In the suit for ejectment filed both the previous owner Smt. Jamini Bala Devi and the new owner Sirohat Kumar Gangoli were co-plaintiffs, but it was conceded by learned counsel for the respondent during this appeal that no suit could be filed by the lady after she had ceased to be the landlord.

The suit was contested by the appellant, who contended, inter alia, that the suit was not maintainable as the permission obtained by Jamini Bala Devi did not entitle her transferee to file a suit. It was also contended that the notice under Section 106 of the Transfer of Property Act purporting to terminate the tenancy was invalid as it was unsigned, Both the courts rejected all the contentions of the appellant and decreed the suit for ejectment. A decree for arrears of rent was also passed. The defendant has now come to this Court in second appeal against the decree for ejectment only.

4. Mr. Barman, learned counsel for the appellant, urged only two arguments against the validity of the decree. First, he contended that the decision of the lower appellate court that the permission obtained by the previous landlord enured for the benefit of the transferee landlord was wrong. Secondly, he argued that the finding of the lower appellate court that the notice under Section 106 of the Transfer of Property Act was valid is also erroneous.

5. The first contention raises the question whether the permission granted under Section 3(1) confers on the landlord a personal right to file a suit for the ejection of the tenant or is transferable to his heir, or assignee or transferee.

6. It was conceded by learned counsel for both the parties that there is no direct authority on the question whether the permission obtained under See. 3(1) for the ejectment of a tenant confers a personal right on the landlord or is transferable to his successor in interest. It is, therefore, necessary to consider the language of Section 3, bearing in mind the scheme and purpose of the Act. This section, as its title indicates, was intended to impose restrictions on the right of the landlord to evict the tenant. It was intended to protect tenants against any attempt by the landlord to take advantage of the accute shortage of accommodation in the cities of U.P. and profiteer at the expense of the tenants. It provided that no suit shall be filed in any civil court for the eviction of the tenant without the permission of the District Magistrate. Thus the right of the landlord to terminate the tenancy, which vests in him under the ordinary law, was made subject to the condition that he must obtain the previous approval of the District Magistrate before filing his suit for eviction.

7. But the section includes some important exceptions. These are contained in clauses (a) to (g) of Sub-section (1) which enumerate cases in which it is not necessary for the landlord to obtain the District Magistrate's permission before exercising his landlord's right to evict the tenant. These exceptions relate to a tenant who is guilty of default in payment of rent; or, of damaging the accommodation, or having made unauthorised constructions which are harmful to the value of the accommodation; or of having created nuisance or unauthorised use of the tenancy or using it in a manner injurious to the landlord's interest; or of sub-letting the accommodation without the landlord's permission or of denying the title of the landlord; or whose right to occupy the accommodation was part of the terms of his contract of employment under the landlord, but his employment has been terminated.

8. In all these cases the landlord has the right to file his suit for ejectment without recourse to the District Magistrate. An analysis of these exceptions reveals a common characteristic. In all of them the reason for ejectment is the misconduct of the tenant on the happening of an event determining the tenancy. In such cases, it does not matter who the landlord is, for the tenant has forfeited his right of tenancy by reason of his own misconduct or by the automatic determination of the tenancy. The Legislature, in enacting Clauses (a) to (g) made a fairly exhaustive list of cases in which the personality of the landlord is immaterial and the tenant has forfeited his right of tenancy irrespective of who the landlord may be.

9. But, apart from the exceptions, the right of the landlord to eject the tenant has been controlled and he must place his case for ejectment before the District Magistrate for his approval. The landlord may want to eject the tenant not because the tenant has committed any fault or misbehaved himself but simply because he wishes to regain possession of his property. The common case is that of a landlord who requires the accommodation for his personal use. In all such cases, the District Magistrate, before allowing the landlord to enforce his statutory right of ejectment, has to consider and weigh the needs of the tenant as against those of the landlord. The section does not, in express words, place any restriction on the power of the District Magistrate to allow or refuse permission to the landlord, but it has been held by this Court in a number of cases that the power is not arbitrary and cannot be exercised so as to frustrate the very purpose of the Act--which is to protect the tenant against arbitrary eviction. In all such cases the personal factor is vital.

The bar against a suit for the eviction of the tenant is lifed in favour of a particular person after a due consideration of his needs. A permission granted on the ground of personal needs of the landlord becomes pointless after the accommodation is transferred to B, and B cannot claim the right to file a suit for ejectment on the basis of the permission granted to another person on grounds which have become meaningless after that person ceased to be the landlord. If he wants to exercise the right of ejectment, he must make out his own case based on his own personal needs before the District Magistrate, and cannot ride on the shoulders of the previous landlord.

10. It was argued that Shrimati Jamini Bala Devi, before transferring the house to her son, had availed of the permission by serving on the tenant a notice under Section 106 of the Transfer of Property Act terminating his tenancy. After this the filing of the suit for ejection was a mere formality which could be completed either by Jamini Bala Devi of her transferee. This argument ignores the language of Section 3(1) which enjoins in effect that 'no suit shall be filed for the eviction of the tenant without the permission of the tenant (District Magistrate?)' The bar is against the filing of a suit and not against the issue of a notice terminating the tenancy.

In Rati Ram Ji v. Mithan Lal, Second Appeal No. 3776 of 1958; (AIR 1960 All 408) I held that Section 3(1) does not bar the service of a notice under Section 106. Thus Jamini Bala Devi could have sent this notice without the permission of the District Magistrate but it would have been of no avail to her if she wanted to file a suit for eviction, and she would have to apply for permission under Section 3(1) of the Control of Rent and Eviction Act. The notice served fay Jamini Bala Devi cannot give her successor a right which it could not confer upon her. If she had to apply for permission to file a suit even after issuing a notice terminating the tenancy, so has he.

11. For these reasons, I am of opinion, that in view of the scheme of Section 3, the permission granted to a landlord under this section to file a suit tor the ejectment of the tenant confers on him a personal right which is not transferable to his successor-in-interest. If the latter, after becoming the owner of the accommodation wants to eject the tenant on any ground other than those enumerated in clauses (a) to (g), he must make out his own case before the District Magistrate and cannot depend upon the permission obtained by the previous landlord.

12. Any interpretation making the benefits of permission granted in favour of a particular landlord on the basis of his personal needs transferable would encourage evasion of the solitary safeguard of Section 3 and defeat its object. Landlords will seek permission to evict tenants not because of any genuine personal needs but to enable them to sell the accommodation with vacant possession and thus profiteer from the shortage of accommodation. A landlord could, after obtaining permission to eject the tenant on the alleged ground of his personal requirements, transfer the accommodation at high price to another person, and the transferee could then file the suit for ejectment without obtaining permission even though he has no need of the accommodation and wants to turn out the tenant to secure a more lucrative tenancy.

13. Learned counsel for the respondent, Mr. R.K. Srivastava, relied on the definition of the word 'landlord' given in Section 2(c) of the Act. It says that 'landlord' means a person to whom rent is payable by a tenant in respect of any accommodation and includes the agent, attorney, heir or assignee (of such person). This definition is not relevant in ascertaining the purpose and scope of the bar under Section 3(1). Learned counsel contended that a suit for ejectment is always filed by a landlord and this word, under the definition, must include his assignee. But the question is not whether the landlord includes his assignee but whether the permission granted under Section 3(1) is transferable -- that is to say, whether the landlord or his assignee or whosoever is entitled for the time being to file the suit for ejectment must obtain for himself the permission of the District Magistrate or whether he can rely on the permission granted to another person after considering the needs of that other. The definition of the landlord has no relevance in deciding this question.

14. Learned counsel relied on a number of cases in support of his contention that the permission granted under Section 3 is transferable. The first case is Janardan Swarup v. Devi Prasad, AIR 1959 All. G3, in which it was observed by a Division Bench (R. N. Gurtu and D. N. Roy, JJ.) that where permission to sue for ejectment has been obtained under Section 3, it will automatically enure not only to the benefit of the person who obtained it, but also to the benefit of others who were interested in filing the suit. In that case the accommodation in dispute was jointly owned by several landlords, all of whom wanted to eject the tenant. One of them applied for permission under Section 3 which was granted. Subsequently, the suit for ejectment was filed by all of them. The tenant raised the technical objection that the permission having been obtained, by one landlord only, the others could not take advantage of it. This plea was rejected on the ground that, in a case of joint landlords, an application for permission by one must be deemed to be on behalf of all as the applying plaintiff must be deemed to have acted as agent on behalf of other plaintilts. In the present case, permission was obtained by a landlord who was the sole owner of the accommodation in which no one else could claim any legal interest. Her son Sirohat Kumar Gangoli, the present owner, had no interest in the property at the time when his mother obtained permission from the District Magistrate on the ground of her personal needs. The vital principle underlying the decision in Janardan Swarup's case, AIR 1959 All 33 is that, in a case of joint landlord or several persons having a legal interest in ejecting the tenant, an application made by one of them wilt be deemed to have been made on behalf of all for the need of one is the need of all.

15. Learned counsel next cited Moti Lal v. Basant Lal, AIR 1956 All. 175 in which H. S. Chaturvedi J. observed that any permission obtained under Section 3 of the U. P. Control of Rent and Eviction Act enures to the benefit not only of the person who obtained it, but also those who were interested in filing the suit. In this case too the plaintiffs were joint owners of the accommodation and both had a legal interest in ejecting the tenant. The decision of Chaturvedi, J., therefore, does not apply to the facts of the present case.

16. Learned counsel then cited a number of cases in which it was held that permission under Section 3, after it has been granted, has the effect of removing the bar of Section 3 and no subsequent events can have the effect of re-imposing that bar. It is not necessary for me to consider these cases as they do not deal with the question whether the permission granted by the District Magistrate removes the bar a favour of the particular landlord who applied for it or in favour of whoever may be the landlord for the time being, It may be true that no subsequent event will re-impose the bar against the person who obtained the permission, but this is irrelevant to the question whether the benefit under the permission is transferable.

17. For the reasons given above I am of opinion that the right acquired by the landlord when he obtains permission from the District Magistrate under Section 3 of the Control of Rent and Eviction Act to eject the tenant is not transferable, and that, on a transfer by sale or otherwise, of the accommodation to another person, the new landlord must make out a fresh case for permission under Section 3.

18. The plaintiffs' suit must be dismissed for another reason. The permission of the Rent Control and Eviction officer on which the suit for ejectment was founded was granted to Smt. Jamini Bala Devi personally. She is mentioned by name in the operative order of the Rent Control and Eviction Officer which rung thus: 'I, therefore, allow Smt. Jamini Bala to file the suit for ejectment against Sri Sajjan Singh in respect of the premises referred to above.' This shows that the permission was granted to a particular person.

19. In view of my finding on the first point, it is not necessary for me to decide the question whether the notice under Section 106 of the Transfer of Property Act served on the defendant appellant was void because it was unsigned. I must, however, point out that the lower appellate court appears to have taken an erroneous view that the onus was on the appellant to prove that the notice was unsigned. In my view the appellant was entitled to assume that the copy of the notice filed by the plaintiff was the true copy of the original. The copy itself contained no signature and, therefore it was for the plaintiff to prove that his own copy contained an error. I was shown the original notice sent by counsel on behalf of the plaintiff: it was not signed by any one.

20. The appeal is, therefore, allowed and theplaintiffs' suit for ejectment dismissed, In the circumstances, however, the parties are directed tobear their own costs.


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