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Mohan Patra Vs. Sumitra Sahu - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 218 of 1982
Judge
Reported in1984(I)OLR151
ActsProvincial Small Cause Courts Act, 1887 - Sections 25; Transfer of Property Act, 1882 - Sections 109
AppellantMohan Patra
RespondentSumitra Sahu
Appellant AdvocateS.K. Dey, Adv.
Respondent AdvocateR.K. Mohapatra, Adv.
DispositionPetition dismissed
Cases ReferredBrij Bihari Prasad and Anr. v. Smt. Deoki Devi and Anr.
Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the..........the shoes of his father as landlord of the defendant and, therefore, was entitled to receive the rent of the house. on a further finding that the defendant was in arrears of rent for the period as claimed, the court directed payment of the same and decreed the suit.3. mr. dey, the learned counsel appearing for the petitioner raised two contentions :-(i) the power of this court under section 25 of the provincial small cause courts act is much wider than the power under section 115 of the civil procedure code, and in exercise of the power under section 25 of the act, the high court jurisdiction to see that the decision of the court below is in accordance with law.(ii) there is no evidence proving attornment by the tenant after biranchi gifted away the property in favour of the plaintiff.....
Judgment:

G.B. Patnaik, J.

1. This is a revision under Section 25 of the Provincial Small Cause Courts Act challenging the decree of the Subordinate Judge, Bargarh in S. C. C. Suit No. 127 of 1979/80. The plaintiff filed the suit for recovery of Rs. 430/- representing the house rent for the period from October, 1978 to September, 1979, with respect to the house bearing Holding No. 605 in Ward No. 3 of Bargarh Municipality. According to the plaint case, Biranchi, the father of the plaintiff, was the admitted owner of the house who had inducted the defendant as a tenant on a monthly rent of Rs. 40/-. Biranchi gifted away the property in favour of the plaintiff and delivered possession of the same to him. The plaintiff on becoming the owner of the house gave notice to the defendant to pay the rent but the defendant did not pay and hence the suit.

2. The defendant in his written statement denied the assertion that Biranchi inducted the defendant as a tenant of the house. According to the defence case, Ambika, the eldest daughter of Biranchi, is the landlady with respect to the house in question and the defendant is paying the rent to Ambika. The so called gift deed executed by Biranchi in favour of the plaintiff is invalid and not binding on the defendant. The learned Subordinate Judge exercising his power under the Small Cause Courts Act held that the suit was maintainable and further the plaintiff stepped into the shoes of his father as landlord of the defendant and, therefore, was entitled to receive the rent of the house. On a further finding that the defendant was in arrears of rent for the period as claimed, the court directed payment of the same and decreed the suit.

3. Mr. Dey, the learned counsel appearing for the petitioner raised two contentions :-

(i) The power of this Court under Section 25 of the Provincial Small Cause Courts Act is much wider than the power under Section 115 of the Civil Procedure Code, and in exercise of the power under Section 25 of the Act, the High Court jurisdiction to see that the decision of the court below is in accordance with law.

(ii) There is no evidence proving attornment by the tenant after Biranchi gifted away the property in favour of the plaintiff and therefore the plaintiff is not intitled to receive any rent.

4. In order to establish that there is no attornment, the learned counsel wanted to place the evidence in this case and contended that it was permissible to look into the evidence for this purpose. The power of the High Court under Section 35 of the Delhi and Ajmir (Rent Control) Act, which is in pari materia with Section 25 of the Act, came up for consideration before the Supreme Court in the case of Hari Shankar and Ors. v. Rao Giridhari Lal Chowdhury reported in A. I. R. 1963 S. C. 698. The Court approved the observations of Beaumont, C. J. (as he then was) in the case of Bell and Co. Ltd. v. Waman Hemraj. A. I. R. 1938 Bombay 223 where the learned Chief Justice was dealing with Section 25 of the Provincial Small Cause Courts Act. The ratio of the said decision is that wherever the court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the court can interfere; but that does not amount to the same thing as reassessment of evidence and come to its own conclusion. In fact Beaumont, C. J. had observed that the Court ought not to interfere merely because it thinks that possible the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at. Howsoever wide the power may be, it is not open to the High Court in exercise of its power under Section 25 to reassess the evidence and come to its own conclusion. But it is not necessary in this case to look into the evidence inasmuch as Mr. Mohapatra, the learned counsel for the opposite party, admitted that there had been no attornment by the tenant.

5. But the main question which requires to be decided is whether without any attornment the transferee-landlord can recover the rent which the transferor-landlord was entitled to receive. According to Mr. Day, the learned counsel for the petitioner, the decision of the Privy Council reported in AIR 1937 P. C 251 (Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, Ltd. and Ors.,) is conclusive on the point and no landlord can claim rent whereas according to Mr. Mohapatra, Section 109 of the Transfer of Property Act is an answer to Mr. Dey's contention. A bare perusal of Section 109 of the Act would show that the purchaser of the rights of the lessor has all the rights of the lessor under the lease unless there is some express stipulation to the contrary. In fact, the transfere can sue the tenant even in the absence of any attornment in his favour. In the case of B. P. Pathak v. Dr. Riyazuddin and Ors. reported in AIR 1976 M. P. 55, a Bench of the Madhya Pradesh High Court interpreting Section 109 of the Transfer of Property Act has held that the said Section creates a statutory attornment substituting but retaining the same effect of the contractual attornment. In the case of Pratap Chandra v. Madan Ram and Anr. reported in AIR 1969 Orissa 273 relying on Section 109 of the Transfer of Property Act, it has been held that the liability of the tenant to pay rent to the real owner subsists even without notice or attornment. To the same effect are the decisions of the Gujrat High Court in the case of Champak Lal Dayabhai Natali and Ors. v. Saraswatiben and Ors., AIR 1977 Gujrat 48 (Full Bench) and the Patna High Court in the case of Brij Bihari Prasad and Anr. v. Smt. Deoki Devi and Anr., AIR. 1978 Patna 117. In view of this position of law, there cannot be any manner of doubt that the plaintiff was entitled to recover the rent in question and accordingly the contentions of the learned counsel for the petitioner have no force.

6. In the result, the civil revision fails and is dismisssed, but in the circumstances, there would be no order for costs.


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