Md. Ziaullah vs Munazir Ahssan
2024 Latest Caselaw 4881 Jhar

Jharkhand High Court

Md. Ziaullah vs Munazir Ahssan on 6 May, 2024

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Second Appeal No.106 of 2022
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1. Md. Ziaullah

2. Md. Faiyaj .... .... .... Appellants Versus

1. Munazir Ahssan

2. Ahsan Manjar

3. Khalid Afjal

4. Nazhat Bano

5. Anjum

6. Nigar Sultana

7. Nikhat Praveen

8. Farhat Praveen

9. Fauziya Naj

10. Naziya

11. Saziya Alam

12. Asif Hussain

13. Tabassum Bano

14. Soni Bano

15. Jubeda Khatoon

16. Gausia Hassan

17. Jeba Naz

18. Shaima Naz

19. Kainat Praveen

20. Husna Bano

21. Ashma Khatoon

22. Rashid

23. Arshad Jamal

24. Kaikasha

25. Afsa

26. Darkhasa

27. Gajala

28. Kamaluddin

29. Md. Ehteshaam .... .... .... Respondents

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Appellants : Mr. Amar Kumar Sinha, Advocate For the Respondents :

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Order No.07 / Dated : 06.05.2024

1. Instant second appeal has been preferred by the appellants/defendants against the judgment of reversal by which the plaintiffs/respondents' suit of eviction has been decreed by the first appellate Court.

2. Plaintiffs' claims to have purchased the suit premises from the original landlord Abdul Mannan through a registered Sale Deed No.11220 Dated 28.09.1987.

3. Suit property is a residential house which was let out to the defendants on 05.02.1990 on a monthly rent of Rs.200/-.Plaintiffs filed the suit for eviction in 2006

on the ground of default in payment of rent and personal necessity.

4. Appellants/Defendants' case is that they were in possession over the suit land as a tenants of Abdul Mannan since 1982 and remained as such till the date of execution of the Sale Deed No.1906 Dated 29.01.2001 when it was sold to them by Abdul Mannan. The defendants were inducted as tenants on 01.03.1982 under valid deed agreement executed by Abdul Mannan for 17 years with option of renewal which was again renewed on 17.04.1999 for a period of three years.

5. At no point of time, the defendants were inducted as tenants by the plaintiffs and any Kirayanama executed by defendants in favour of plaintiffs, was forged and fabricated document including Kirayanama dated 05.02.1990.

6. On the basis of the pleadings of the parties following main issues were framed:-

I. Is there any relation of landlord and tenant between the parties?

II. Whether plaintiffs are in need of tenanted premises reasonably and in good faith for their own use and occupation?

III. Whether the need of plaintiffs can be fulfilled by partial eviction?

7. The learned trial Court answered the issues in favour of defendants and dismissed the suit for eviction. It held that since it was an eviction suit, rival claim of title over the suit property cannot be adjudicated and was confined to see whether there was landlord and tenant relationship. It also disbelieved the rent receipts and lease agreement.

8. The learned first appellate Court reversed the finding of the trial Court by recording a definite finding that Kirayanama and rent receipts (Exhibit 5 and Exhibit

6) cannot be said to be forged documents. No cogent evidence was led to doubt the veracity of this documents. Appellant failed to produce any documentary evidence to support their contention that they had been admitted as tenant by the ex-landlord Abdul Manan. Since the appellant/defendants had denied the relationship of landlord and tenant therefore, the burden of proof was on them of proving the said fact. The suit for eviction was decreed in Appeal on ground of default and personal necessity.

9. It is argued by the learned counsel on behalf of the appellants that the learned first appellate Court committed an error of law by reversing the finding of the trial Court and does not met the reasoning of the trial Court. The matter for consideration is whether substantial question of law is made out for admitting the instant appeal.

10. Having considered the submissions advanced on behalf of the appellants, even if the pleading of the defendants/appellants that they were the tenant of the

original landlord Abdul Mannan, the relationship of landlord and tenant will continue with the Plaintiff after the suit premises was purchased by the plaintiffs by registered sale deed from Abdul Manan in 1987. Under Section 109 of the Transfer of Property Act 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.

Further, it has been held by Hon'ble Supreme Court in Mahendra Raghunathdas Gupta Versus Vishwanath Bhikaji Mogul & Others, (1997) 5 SCC 329 that a transferee of the landlords' right steps into the shoes of the landlord with all the rights and liabilities of the transferor. Attornment by the tenant is not necessary to confer validity of the transfer of landlords' right since attornment of tenant is not required and notice under Section 106 in terms of lease by the transferor would be proper.

11. It has been held in Apollo Zipper India Ltd. v. W. Newman & Co. Ltd., (2018) 6 SCC 744 that if the tenant has not attorned he can raise the issue of the transferee landlord in a suit of eviction.

40. It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the rent laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.

42. Similarly, the law relating to derivative title to the landlord and when the tenant challenges it during subsistence of his tenancy in relation to the demised property is also fairly well settled. Though by virtue of Section 116 of the Evidence Act, the tenant is estopped from challenging the title of his landlord, yet the tenant is entitled to challenge the derivative title of an assignee of the original landlord of the demised property in an action brought by the assignee against the tenant for his eviction under the rent laws. However, this right of a tenant is subject to one caveat that the tenant has not attorned to the assignee. If the tenant pays rent to the assignee or otherwise accepts the assignee's title over the demised property, then it results in creation of the attornment which, in turn, deprives the tenant to challenge the derivative title of the landlord. (See Bismillah Be v. Majeed Shah [Bismillah Be v. Majeed Shah, (2017) 2 SCC 274 : (2017) 1 SCC (Civ) 639] , para 24.)

12. In the present case, Abdul Mannan was the landlord under whom the defendants claim to be tenants. Plaintiffs claim by a registered sale deed executed on 28.09.1987 to have purchased the suit land from Abdul Mannan. There is presumption in favour of execution of sale deed and it title passes in the property from the date of its execution under Section 47 of the Registration Act.

13. Abdul Mannan never moved any Court for cancellation of the sale deed executed in the year 1987 in favour of the Plaintiff on the ground of fraud under

Section 31 of the Specific Relief Act. Subsequent execution of the sale deed of the same property in 2001 in favour of the defendants, cannot transfer a valid title to the defendants as after the previous sale, as the common vendor Abdul Mannan was divested of any title after the execution of sale deed in favour of the Plaintiff.

14. After the execution of the sale deed, the plaintiffs stepped into the shoes of the landlord Abdul Mannan and the plaintiff became the landlord in view of the admitted position that defendant was the tenant of Abdul Mannan.

15. In this view of matter, the doctrine of tenants estoppel under Section 116 of the Evidence Act will apply and it will not be permissible to deny the title of the Plaintiff.

16. The learned first appellate Court has decreed the suit of eviction on the ground of default and personal necessity.

17. I do not find any infirmity in the judgment rendered by the learned first appellate Court and there is no substantial question of law for admitting the second appeal. The second appeal accordingly stands dismissed at the stage of admission itself with cost. The cost is assessed at Rs 25,000/.

18. The learned Court below is directed to conclude the execution proceeding within six months from today or if not presently pending from six months of its filing as per the guidelines laid down in Rahul S. Shah v. Jinendra Kumar Gandhi, (2021) 6 SCC 418. The execution Court will have full powers to assess and direct payment of mesne profits (full restitution), from the date of the decree of the first appellate court as per the guidelines in Indian Council for Enviro-Legal Action v. Union of India, 2011 (8) SCC 161 (para 148).

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, 6th May, 2024 NAFR/Anit