S.D. Agrawala, J.
1. This is a defendant's second appeal arising out of a suit filed by the plaintiffs-respondents against the appellant for ejectment from, the property No. 179 situate in Mohalla Basdeo, Jhansi and for recovery of Rs. 900/- as damages for use and occupation.
2. The respondents' case was that on 2-8-1960 the respondents granted a lease, in respect of a Khandhar, the property in dispute in favour of the appellant Hukum Chand for a period of 10 years subject to the condition inter alia that Hukum Chand shall vacate the property on the expiry of the above date. It was further alleged that after the expiry of 10 years the tenancy of the appellant was terminated with effect from 1-8-70 by a notice which was served upon the appellant on 9-9-70 and since in spite of service of notice the property had not been vacated, hence the suit was filed.
3. The suit was contested by the appellant. He admitted that he entered into an agreement of lease on 2-8-1960 for a period of 10 years on a monthly rent of Rs. 30/-. It was, however, alleged by him that on 30-10-1963 the respondents executed a sale deed in favour of his wife prema Bai and Prema Bai became an absolute owner of the property on 30-10-1963. Prema Bai granted a fresh lease in his favour in respect of the property in dispute by a written document and hence it was alleged that the suit was premature and no decree for ejectment can be passed against him.
4. It is further admitted between the parties that on 25-11-1968 Smt. Prema Bai executed a sale deed which was in the nature of reconveyance in favour of the respondents again transferring back the property absolutely in favour of the respondents.
5. The trial court framed a number of issues. Three main issues framed by the trial court were as to whether the plaintiffs were entitled to get the property vacated, whether the notice for ejectment was valid and whether the plaintiffs had the right to file the suit. The trial court after examining the evidence on record recorded a finding that the plaintiffs-respondents were entitled to evict the appellant from the property in dispute. The notice served by the respondents on the appellant was valid and that the plaintiffs-respondents had a right to file the suit. In view of the above finding the suit was decreed for the eviction of the appellant as well as for damages. Aggrieved by the said decision of the trial court dated 30th Sept. 1972, an appeal was filed before the lower appellate court. In appeal the appellate court considered mainly two points; firstly, on the question whether the suit has been prematurely instituted and secondly on the question as to whether the tenancy in question has assumed the complexion of a permanent tenancy on account of erection of some construction on the disputed property by the defendant-appellant during the period of tenancy and the third question of course was as to whether the plaintiffs-respondents were entitled to any relief or not. The appellate court after examining the evidence on record recorded a categorical finding that an outright sale was effected on 30-10-1963 in favour of Smt. Prema Bai by virtue of the sale deed which is Ext. 2 on the record. The contention raised by the respondents that the deed was a mortgage by conditional sale was not accepted. The appellate court further recorded a finding that Smt. Prema Bai had, in fact, agreed to reconvey the property to the plaintiffs-respondents on the expiry of the period of five years, i. e. by 30th Oct. 1968 but the said agreement for reconveyance was not incorporated in the deed Ext. 2. It has been further found that on 25th Nov. 1968 the property was in fact, reconveyed to the plaintiffs-respondents. The appellate court further recorded a finding that the plaintiffs-respondents were not bound by the lease deed dated 23-11-1968 Ext. A-1 by virtue of which Smt. Prema Bai had executed the lease in favour of her husband, the appellant, for a period of 10 years. Having recorded this finding the appellate court further found that the suit was not premature and as such the suit was decreed. The lower appellate court also found that on expiry of the period of lease it cannot be said that the lease had assumed the complexion of permanent lease and that the appellant was not entitled to eviction.
6. In view of the above findings the appeal was dismissed by the appellate court on nth Jan. 1975, Aggrieved by the decision of the appellate court dated 11-1-1975 the present appeal has been filed by the defendant-appellant.
7. Learned counsel for the appellant has contended firstly, that the suit is based on the lease deed dated 2-8-1960 and not on the lease deed dated 23-11-1968 and as such the suit could not be decreed by the courts below. The second submission of the learned counsel is that the lease deed dated 23-11-68, Ext. Al, executed by Smt. Prema Bai in his favour was a valid lease deed and the lower appellate court erred in holding that the plaintiffs-respondents were not bound by the said document.
8. It was next urged by the learned counsel that in any case in view of the provisions of Section 29-A of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972, a decree for ejectment could not be passed against him in case it is held that the lease deed dated 23-11-1968 is binding on the plaintiffs-respondents.
9. I have heard the learned counsel for the respondents.
10. So far as the first and third questions are concerned, it is not necessary for me to go into these questions because I am of the opinion that the alleged lease deed dated 23-11-1968, Ext. A-1 executed by Smt. Prema Bai in favour of her husband Hukum Chand the appellant was rightly held by the lower appellate court as not binding on the plaintiffs-respondents. Once the lease deed, Ext. A-1 is ignored then the suit had been filed on a proper cause of action, namely, lease deed dated 2-8-1980 and the third question also would not arise.
11. In order to examine the second contention raised by the learned counsel, the findings of facts which have been arrived at by the courts below which are relevant are as follows:--
The lease deed dated 2-8-1960 was executed by the plaintiffs-respondents in favour of the appellant and by virtue of this lease deed the appellant had to vacate the property after expiry of 10 years. On 30th Oct. 1963 a sale-deed was executed by the respondents in favour of Smt. Prema Bai and this was an outright sale. There is further finding that there was an agreement of resale by Smt. Prema Bai with the respondents that the property will be sold within 5 years, namely, by 30th Oct. 1968. The property, in fact, was resold on 25-11-1968 by Ext. 3 in favour of the respondents. Only two days before the execution of the sale-deed in favour of the respondents, Smt. Prema Bai on 23-11-1968 executed a lease deed in favour of the appellant. This lease deed dated 23-11-1988 which is the subject of challenge was executed by Smt. Prema Bai in favour of her husband the appellant Hukum Chand. It has also come in evidence and has been found by the lower appellate court that both Smt. Prema Bai and Hukum Chand had knowledge that the right of Smt. Prema Bai would come to an end after the execution of the sale-deed in favour of the respondents as there was an agreement for reconveyance of the property after five years, namely, from 30th Oct. 1963. The mateiral question, therefore, which has to be decided is as to what is the effect of the lease deed dated 23-11-68 executed by Smt. Prema Bai in favour of the appellant, her husband.
12. Learned counsel for the appellant has placed specific reliance on a Division Bench decision of this Court, in Rai Narain Jain v. III Addl. District Judge 1979 All Ren Cas 485 : (AIR 1980 All 78). In Rai Narain Jain's case (supra) it has been held by this Court that a lease deed executed by the previous lessor in favour of a tenant is a covenant running with the land and an auction purchaser who purchases the property is bound by the said covenant.
13. So far as the principle laid down by the Division Bench is concerned, it is not disputed but in my opinion the principle laid down in this case does not apply to the facts of the present case. In the instant case the lease deed dated 23-11-1968 was executed by the wife in favour of her husband, both lessor and lessee fully knowing that they would cease to have any right in the property because of an agreement of reconveyance entered into between the plaintiffs respondents and Smt. Prema Bai and in fact the sale-deed was executed just two days after the execution of the said lease deed in favour of the appellant, whereby Smt. Prema Bai ceased to have any right in the property whatsoever. Where a party to the deed having full knowledge of the fact that the person executing the lease in favour of the lessee, namely, the lessor would cease to have any interest in the property, gets the lease deed executed in his favour it is clearly an act of fraud per se and as such the subsequent transferee cannot be bound by such an act. A person who is a party to the fraud cannot take benefit of his own act.
14. Learned counsel for the respondents in this context relied upon a decision of the Supreme Court in Mahabir Gope v. Harbans Narain Singh, AIR 1952 SC 205. The case before the Supreme Court was a case of mortgage. The mortgagee in possession executed a lease deed extending beyond the period of mortgage. The Hon'ble Supreme Court held that the mortgagee cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor's interest such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the land, thereby defeating the mortgagor's right to khas possession. This decision was based on the provisions of Section 76(e) of the Transfer of Property Act. In my opinion, the general principle laid down in this decision would be applicable to the present case also, though Section 76(e) of the T. P. Act in terms is not applicable to the present case. A lessor having knowledge of the fact that only two days thereafter he will cease to be a lessor of which the lessee also had knowledge cannot execute a lease deed for a period subsequent to his ceasing to be the lessor and no reliance can be placed by the lessee on such a document and the transferee is not bound by the lease deed which is outcome of fraud. In view of the above, I am of the opinion that the appellate court was right in holding that the respondents are not bound by the document Ext. A-1 dated 23-11-68.
15. Learned counsel for the appellant, therefore, urged that since in the plaint no particulars of fraud had been given the court could not ignore the document dated 23-11-1968. The question of plea of fraud in the plaint did not arise. It was only in the written statement that the defendant-appellant took the plea that he was protected by the lease deed dated 23-11-1968 and as such the question of giving particulars of fraud did not arise in the plaint at all. Once such a defence has been taken an issue was framed and the parties led evidence on the question as to whether the document dated 23-11-1968 was executed with the knowledge of the fact that Smt. Prema Bai would cease to be the owner of the property on 25-11-68-In this view of the matter it cannot be said that the appellate court could not give a finding to the effect that the respondents were not bound by the document Ext. A1.
16. In the result, the appeal fails and is accordingly dismissed but in the circumstances of the case, the parties are directed to bear their own costs.