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Ganesh Prasad Vs. Badri Prasad Bholanath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1774 of 1978
Judge
Reported inAIR1980All361
ActsTransfer of Property Act, 1882 - Sections 111 and 116; Evidence Act, 1872 - Sections 65; Uttar Pradesh Municipalities Act, 1916 - Sections 330
AppellantGanesh Prasad
RespondentBadri Prasad Bholanath and ors.
Appellant AdvocateG.P. Bhargava and ;A.N. Bhargava, Advs.
Respondent AdvocateSatish Chandra Srivastava and ;C.C. Misra, Advs.
DispositionAppeal allowed
Excerpt:
tenancy - lease - section 111 of transfer of property act, 1882 - a partner in the firm became owner of the premises - during the continuance or after the termination of the partnership -the possession of the partners other than the owner and landlord can be only that of licencees - landlord partner would be entitled to a decree of ejectment in his favour. - - mishra informed that he was appearing in the lower appellate court as well......filed by the defendants nos. 1, 2 and 3. it was mentioned in para 12 of the written statement that dwarika prasad father of defendant no. 3 was the tenant of the disputed property and the business was being carried on by the plaintiff as a partner with the consent of dwarika prasad and defendant no. 3. it was alleged that the suit was liable to be dismissed as it was filed against the plaintiff himself as a partner.3. the appeal came up to this court earlier when it was decided by hon'ble mr. justice gopinath. he decreed the suit for ejectment of the defendants. the matter was taken to the hon'ble supreme court by the defendants. the supreme court remanded the case to the 1st appellate court holding that the appeal was to be decided afresh in the light of the observations made by it. the.....
Judgment:

K.M. Dayal, J.

1. The present second appeal arises out of the suit for ejectment. The plaintiff Gaya prasad filed the present suit with the allegations that he was a partner of the Firm M/s. Badri Prasad Bholanath defendant No. 1. The others were arrayed as defendants Nos. 2 to 7. The business was being carried on in premises No. 3 Baluwa Ghat, Allahabad. The plaintiff had given the disputed premises on licence to the partnership of which he himself was a member and the licence was revoked by registered notice dated 18-4-1970. The defendants, however, were occupying the disputed property illegally and were liable to be ejected.

2. One written statement was filed by the defendants Nos. 1, 2 and 3. It was mentioned in para 12 of the written statement that Dwarika Prasad father of defendant No. 3 was the tenant of the disputed property and the business was being carried on by the plaintiff as a partner with the consent of Dwarika Prasad and defendant No. 3. It was alleged that the suit was liable to be dismissed as it was filed against the plaintiff himself as a partner.

3. The appeal came up to this court earlier when it was decided by Hon'ble Mr. Justice Gopinath. He decreed the suit for ejectment of the defendants. The matter was taken to the Hon'ble Supreme Court by the defendants. The Supreme Court remanded the case to the 1st Appellate Court holding that the appeal was to be decided afresh in the light of the observations made by it. The Supreme Court, however, made it clear that the disputed property will be deemed to be an accommodation within the meaning of the U.P. Temporary Control of Rent and Eviction Act and the title of the plaintiff could not be challenged by the defendants. The Supreme Court further held as under:--

'The premises were in the occupation of the first defendant Firm and, prima facie the implication of possession are not necessarily consistent only with a licence. Moreover, the plaintiff himself was one of the partners of the firm which was in possession. Notwithstanding title in the plaintiff, the admitted possession of the first defendant need explanation. Rival versions were set up, one of the licence and the other of lease.'

Their Lordships of the Supreme Court after making various observations permitted the parties to lead fresh evidence. The court below proceeded to decide issues Nos. 3 and 4 after remand. It observed that the finding that the defendants were not licencees of the plaintiff was accepted by the Hon'ble Supreme Court. He held that defendants were subtenants of Dwarika Prasad and the suit was not maintainable. The plaintiff Ganesh Prasad has come up in appeal, the appeal was admitted on two questions. Firstly, whether the defendants were licensees of tenants; what was their status? Secondly, whether provisions of U.P. (Temp.) Control of Rent and Eviction Act 1947 applied to the premises. Both these questions were covered by issues Nos. 3 and 4.

4. The issue No. 3 related to the fact of tenancy of Dwarika Prasad father of defendant No. 3. The plaintiff was not in picture in the year 1954 when the disputed premises is alleged to have been in occupation of Dwarika Prasad as a lessee. The defendants have relied upon a lease deed in favour of Dwarika Prasad, executed by the then landlord Lax-man Prasad, paper No. 128/C. By this document it appears that the disputed property was given to Dwarika Prasad father of defendant No. 3 for a fixed period of 4 years 2 months. Clause 2 of the aforesaid lease deed provided that the lessee had no right to create sublease. This lease deed is dated 21-7-1950. The lease was to commence on 1st October, 1950 and was to expire on 30th November, 1954. This lease has been held as continuing by the lower appellate court. The lower appellate court, has disbelieved the Qabuliat executed by subsequent tenant in respect of the disputed property.

5. The court below relied upon a paper purporting to be assessment list of the year 1960 to 1965. A certified copy of the assessment list of year 1960 to 1965 is on record as paper No. 154/C. This is certified copy issued by the Nagar Mahapalika Copying Department. This does not contain the name of Dwarika Prasad anywhere. The court below has further relied upon another assessment list of the subsequent quinquennial in which according to it, name of Umesh Chandra Gupta is mentioned. I do not find any certified copy of the aforesaid year. The learned counsel for the respondent pointed out that there were two papers 126C and 127C which were filed in court and subsequently the same were proved by the clerk concerned. These papers were filed per list 125/C by the defendant's counsel Sri Satya Narain Mishra, Advocate on 4-3-1978 after remand. I have looked to these papers. These papers are not certified copies issued by the Municipal Board in accordance with Section 330 of the Municipalities Act. These have been issued by one Rashid Ali. It does not bear either any copying stamp Folio or seal of the Municipal Board. That also did not come under the definition of certified copies as required by Section 65 of the Evidence Act. I compared these papers with the certified copy on record and I find that these papers were incorrect and wholly inadmissible in evidence. They were not issued by the Municipal Board as required and further these papers not being the certified copies were inadmissible as provided by Clause (f) of Section 65 read with its proviso. This proviso completely barred any other kind of secondary evidence except a certified copy.

The learned counsel Sri V.C. Mishra informed that he was appearing in the lower appellate court as well. I enquired from him as to how this paper was obtained and whether it was the copy of the assessment register. He informed that this was not the copy of the assessment register but it was copy of the assessment diary maintained by some one who went to the enquiries on the spot. Who made the enquiry has not been proved and nor that man has been produced. Even the contents of this document do not support the defendant's case. These papers show that the rent of the accommodation was Rs. 20 per month, in favour of Dwarika Prasad. According to paper No. 128/C admittedly the rent in 1964 was Rs. 50 per month. Under these circumstances, these papers could not have related to the disputed accommodation. Anyway as these papers are not the copies of any document required to have been maintained by the Municipal Board nor they were issued in accordance with Section 65 of the Evidence Act nor they were proved by the person who made the enquiry or made the entry. The court below has laid great emphasis on the point that the tenancy of Dwarika Prasad was not terminated. That fact is not supported by the circumstances and the evidence in the case. Paper No. 128/C was specifically for the period 1st October, 1950 to 30th November, 1954. There is absolutely no evidence to prove that thereafter the lease was continued. The mere occupation of Dwarika Prasad or any of the defendants could not be the continuance of the lease. The lease could be continued under Section 116 of the Transfer of Property Act by holding over or by express renewal. In the instant case there is absolutely no evidence that there was any act on the part of the lessor to accept Dwarika Prasad as lessee after the expiry of the period of his lease. The lease could not be extended unilaterally by a tenant. In absence of any evidence of willingness, or consent of the landlord to continue the lease the court below could not have held that the lease continued. Admittedly the property has come to the plaintiff by transfer from previous owner. Under Section 109 of the Transfer of Property Act the tenant had a right to elect to treat the transferee as his landlord. The purchaser can also issue a notice to the tenant informing him of his right and for payment of further rent to him. Absolutely no evidence relating to exercise of option by tenant or notice by landlord has been brought on record.

6. There is yet another aspect of the case. Assuming Dwarika Prasad was a tenant, the plaintiff landlord, entered the premises as a partner of defendant No. 1. As the landlord himself came in occupation of the demised property the lease determined under Clause (d) of Section 111 of the Transfer of Property Act. Entity of the landlord as claimed by the defendant was not kept separate and it could not be separate because the plaintiff as a partner was entitled to be in possession. He would be deemed to have been in possession over each and every parcel of the partnership premises. According to the own case of the defendants, the plaintiff was in occupation as a partner. Under these circumstances, the lease stood determined. During the continuance or after the termination of the partnership the possession of the partners other than the owner and landlord can be only that of licencees.

7. There was no admissible evidence on the record to prove any continuance of tenancy of Dwarika Prasad by holding over or otherwise. He is not a party. No decree is being sought against him. The defendants cannot claim any sub-tenancy from him as it is prohibited by Clause (2) of the deed of Dwarika Prasad on which they rely. The tenancy of Dwarika Prasad having come to an end, the possession having been with the plaintiff the possession of other partners became possession of mere licencees. None of the partners have claimed to be the lessees.

8. The Hon'ble Supreme Court held that the title of the plaintiff cannot be challenged in the instant case. The defendants not being a tenant the only character in which they could be in possession would be either as a licencee or as a trespasser. In either case the plaintiff is entitled to a decree in his favour on the basis of his title.

9. In the result, the present second appeal is allowed. The judgment and decree passed by the lower appellate court is set aside and that passed by the trial court is restored with costs throughout.


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