Skip to content


Babulal and ors. Vs. Kanhaiyalal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 25 of 1973
Judge
Reported inAIR1975Raj136
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11, 100 and 101 - Order 41, Rule 27; Transfer of Property Act, 1882 - Sections 109, 111 and 116; Limitation Act, 1963 - Schedule - Article 67; Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 3 and 13
AppellantBabulal and ors.
RespondentKanhaiyalal
Appellant Advocate L.R. Mehta, Adv.
Respondent Advocate Hastimal, Adv.
DispositionAppeal dismissed
Cases ReferredChhajulal Banshilal v. Chiranjilal
Excerpt:
- .....by adverse possession. the title of the plaintiff was challenged on the ground that since the power of attorney ex-ecuted by smt. vidhyadevi and banshilal in favour of kapurchand was not valid, the sale deed executed by kapurchand in favour of the plaintiff conferred no valid title on the plaintiff. it was also contended that there was no attornment in favour of the plaintiff and no rent had ever been paid to the plaintiff by chhajulal or for the matter of that to gadmal.4. the trial court decreed the plaintiff's suit and the judgment and decree of the trial court were upheld by the additional district judge, tonk on appeal by the defendants.5. learned counsel for the appellant has argued in the first instance that since the power of attorney in favour of kapurchand had not been.....
Judgment:

C.M. Lodha, J.

1. This is a defendant's second appeal arising out of a suit for arrears of rent and ejectment.

2. The plaintiff-respondents' case as set out in the plaint is that the premises in question which consist of a shop and a Medi, situated in village Deoli were rented out to the defendant Chiranjilal (who is now dead and represented by his legal representatives Babulal and others appellants) by one Gadmal receiver of the firm Daulatram Chandanmal on Kartik Sudi 1, S. 1998 on a monthly rent of Rs. 5/4/-. It is further alleged that the partition commissioner of Ladha's estate, appointed by the Calcutta High Court sold the premises in question to Chhajulal Banshi Lal by a registered sale deed dated 6-2-1947 and Chiranjilal attorned in favour of the vendees Chhajulal Banshilal. The plaintiff goes on to state that since Chiranjilal did not pay rent to Chhajulal Banshilal, the latter filed a suit in the Court of Sub-Judge, Kekri for arrears of rent amounting to Rs. 172/10/- and the same was decreed on 9-8-1955. The prayer for ejectment was, however, disallowed on the ground that the notice of termination of tenancy dated 25-7-1949 served on the tenant was not legal and valid. It is further alleged that the heirs of Chhajulal, viz. Smt. Vidhya-devi and Banshilal sold the property in question through their attorney Kapurchand in favour of the plaintiff by a registered sale deed dated 21-9-1962. It may be stated at this stage that Smt. Vidhyadevi and Banshilal had also filed a suit for arrears of rent and ejectment against Chiranjilal but the same was dismissed in default under Order 9, Rule 8, Civil P. C., and the application for restoration was also dismissed. The present suit has thus been filed by the plaintiff on the basis of derivative title.

3. The suit was resisted by the defendant on a number of grounds. It was urged that the defendant had become owner of the property by adverse possession. The title of the plaintiff was challenged on the ground that since the power of attorney ex-ecuted by Smt. Vidhyadevi and Banshilal in favour of Kapurchand was not valid, the sale deed executed by Kapurchand in favour of the plaintiff conferred no valid title on the plaintiff. It was also contended that there was no attornment in favour of the plaintiff and no rent had ever been paid to the plaintiff by Chhajulal or for the matter of that to Gadmal.

4. The trial court decreed the plaintiff's suit and the judgment and decree of the trial court were upheld by the Additional District Judge, Tonk on appeal by the defendants.

5. Learned counsel for the appellant has argued in the first instance that since the power of attorney in favour of Kapurchand had not been registered the sale deed executed by Kapurchand is of no avail. In support of his contention he has relied upon Jugraj Singh v. Jaswant Singh, AIR 1971 SC 761. At this stage it may be mentioned that anticipating this objection learned counsel for the respondents has made an application under Order 41, Rule 27, Civil P. C. praying that a fresh power of attorney executed by Smt. Vidhyadevi and Banshilal and duly registered on 26-9-1973 wherein the executants have ratified the act of their Attorney Kapurchand, may be taken on record and the defect, if any, in the original power of attorney may be taken to have been remedied. He has argued in the alternative that since Kapurchand was himself the executant of the sale deed, Section 32(a) of the Indian Registration Act would apply, and not Section 32(c). From this stand point it is contended that Section 33 has no application and the power of attorney is in order.

6. In AIR 1971 SC 761 also while the suit was pending and because of the challenge to the power of attorney on the ground that it had not been properly authenticated under the law, a fresh power of attorney was executed by the owner of the property in favour of the agent as required by law. The second power of attorney was held to be valid and effective both under Section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act, and it was further held that that being a document ratifying the former inconclusive act related back to the time when the first document was made and it cured the illegality in the presentation for registration which had taken place. Their Lordships further came to the conclusion that in view of the second power of attorney there was proper execution of the document of sale, and its registration. The Supreme Court's case is on all fours in the facts and circumstances of the present case. There is no denying the fact that the second power of attorney which has been presented in this court is not lacking in any manner. Consequently I allow the application under Order 41, Rule 27, Civil P. C, and admit the second power of attorneydated 26-9-1973 in evidence and further hold that on the basis of the second power of attorney there was a proper execution and registration of the sale deed.

7. The next point urged on behalf of the appellant is that no rent was paid either to Gadmal or to his successor in title Chhajulal nor to the present plaintiff, and consequently there was no attornment in favour of the plaintiff. In this connection it may be pointed out that in the written statement dated 18-3-1950 in Suit No. 84 of 1949: Chhajulal Banshilal v. Chiranjilal the defendants' father Chiranjilal denied his position as a tenant, but his contention was overruled and a decree for arrears of rent was passed against him on 9-8-1955 though the suit for ejectment was dismissed on account of defect in the notice of termination of tenancy. This judgment, in my opinion, operates as res judicata against the appellants who are sons of Chiranjilal (defendant in that case), and are claiming under him. The defendant is therefore debarred from disputing his status as a tenant of the plaintiff who is successor-in-title of Chhajulal Banshilal in respect of the premises in question. Moreover, it is not necessary for the plaintiff to prove that rent had actually been paid to him or his pre-decessor-in-titlc or that there had been attornment in his favour or for the matter of that in favour of his predecessor-in-tilte, in case he is able to establish that he is the transferee of the lessor. In this connection reference may be made to Section 109 of the Transfer of Property Act which 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, with certain provisos which obviously have no application to the present case. It has already been held that Shrimati Vidhyadevi and Banshilal sold the property in question to the plaintiff through their attorney Kapurchand by the sale deed dated 21-9-1962. Section 116 of the Transfer of Property Act which is being relied upon by the learned counsel for the appellant has obviously no application to the facts and circumstances of the present case. I, therefore, overrule this contention also.

8. This brings me to another contention of the learned counsel for the appellant that the suit is barred by limitation and at any rate the plaintiff should have brought a suit based on title. It is argued that when the defendant's father Chiranjilal renounced his character as lessee by claiming title in himself in his written statement dated 18-3-1950 in suit No. 84 of 1949, the cause of action for ejecting the defendant accrued to the landlord on that date and since the suit has been filed after more than 12 years from that date, it is time-barred under Article 67 of the Limitation Act, 1963. Article 67 reads as under : --

'67.By a landlord, to recover possession :Twelve

yearsWhen the tenancy is determined.'

Now a reference to Section 111(g) of the Transfer of Property Act would show that a lease of immovable property may be determined by forfeiture, that is to say, in case the lessee renounces his character as such by claiming a title in himself and the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. This is a case where the lease is said to have been determined by forfeiture. It may be pointed out here that the plaintiffs Chhaju-lal Banshilal in case No. 84/1949 never gave notice in writing to the lessee after the lessee claimed title in himself in the written statement filed in that suit, of their intention to determine the lease. Consequently no forfeiture can be said to have taken place. So far as the notice of termination of tenancy dated 25-7-1949 is concerned, it is admitted case of the parties that it was found to be invalid with the result that the suit for ejectment was dismissed. This notice, also, therefore, cannot be treated as giving rise to a cause of action to the plaintiff for filing a suit for ejectment, as by this notice, the defendant's tenancy was not determined in accordance with law. The tenancy of the defendant can therefore be said to have been determined only by the notice of ejectment served upon the defendant before the institution of the present suit, i. e. the notice dated 22-10-1962 and from this date the suit is admittedly very much within time.

9. It is then argued that the sale deed dated 21-9-1962 in favour of the plaintiff is invalid because Smt. Vidhyadevi had no right to sell the property on behalf of her minor sons. It is sufficient to point out in this connection that even though an objection to that effect was taken in the written statement but the appellant did not press it thereafter in any of the two courts below. He never applied for framing an issue on that point, nor led any evidence to substantiate it. It would, therefore, not be unreasonable to infer that the defendant abandoned this plea and he cannot be allowed to raise it in course of arguments particularly when it has not been taken even in the memo of appeal filed in this court.

10. Lastly learned counsel for the appellants has argued that since Chiranjilal, the original defendant, against whom the suit had been instituted, died during the pendency of the appeal in the lower appellate court, the appellants who had been substituted in his place would never the less be entitled to the benefits of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. It is thus argued that it was obligatory on the part of the plaintiff to have proved his reasonable and bona fide personal necessity for the pre-mises in question so as to be entitled to a decree for ejectment under Section 13 of the said Act. This point should not detain me long in view of the judgment of their Lordships of the Supreme Court in J. C. Chatter-jee v. S. K. Tandon, AIR 1972 SC 2526 wherein it has been held that 'on the death of a statutory tenant pending an eviction suit or appeal, his heirs and legal representatives brought on record cannot claim the status of tenant within Section 3(vii) of the Act as no rent is payable by them. Therefore, the only contentions that they could put forward in the second appeal by the landlord were the contentions appropriate to their respective character and not the one which was personal to the deceased. The defence of want of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives. This contention is thus without force.

11. In the result, I dismiss the appeal, but without any order as to costs.

12. Learned counsel for the appellant prays for grant of leave to appeal under Section 18 (2) of the Rajasthan High Court Ordinance. Leave is refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //