Jharkhand High Court

Om Prakash Gupta vs Ajay Kumar on 14 November, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                    S.A. No.290 of 2018
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(Against the judgment dated 04.01.2018 passed by learned Principal District Judge, Bokaro in Civil Appeal No.23 of 2017)

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Om Prakash Gupta, son of Ramanand Gupta, aged about 56 years, Proprietor of Saraswati Dresses, resident of Mahavir Chowk, Chas, P.O. & P.S. Chas, District Bokaro .... .... .... Defendant/Appellant /Appellant.

Versus Ajay Kumar, son of Late Bishundeo Yadav, resident of Sector II/C, Qr. No. I-306, B.S. City, P.O. & P.S. Bokaro, District Bokaro .... .... .... Plaintiff/ Respondent/Respondent

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           For the Appellant          : Mr. Rohitashya Roy, Advocate
                                        Mr. Tarun Kr. Mahto, Advocate
                                        Mr. Vibhor Mayank, Advocate
                                        Mr. Shivam Kumar, Advocate
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                                          PRESENT
            HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the learned counsel for the appellant.

2. This Second Appeal filed under section 100 of the Code of Civil

Procedure, 1908 has been preferred against the judgment of affirmance dated

04.01.2018 passed by learned Principal District Judge, Bokaro in Civil Appeal

No.23 of 2017 by which the learned first appellate court confirmed the

judgment and decree passed by the learned trial court being the learned

Additional Munsif, Bokaro in Title Eviction Suit No.09 of 2007 dated

31.05.2017, by which the learned Additional Munsif, Bokaro directed the

defendant/appellant to vacate the suit premises and dismissed the Civil

Appeal No.23 of 2017.

3. The brief facts of the case is that the respondent/plaintiff filed Title

Eviction Suit No.09 of 2007 in the court of Additional Munsif, Bokaro with a

prayer for a decree to be passed in favour of the plaintiff and against the

defendant for eviction of the defendant from the tenanted premises, on the

ground of default in payment of rent and personal necessity of the tenanted

premises by the plaintiff and to direct the defendant to deliver vacant

possession of the suit premises to the plaintiff. A prayer was also made in the

suit for recovery of eight (8) month's arrear rent from March, 2007 to October,

2007; cost of the suit and other reliefs.

4. The case of the plaintiff in brief is that the plaintiff is the rightful owner

of the two shop rooms having been purchased the same from Sri Balram

Sharma and others vide registered sale-deed No.1904 dated 28.03.2007. The

vendor of the plaintiff inducted the defendant as a tenant on payment of

monthly rent of Rs.300/- payable on 10th day of each succeeding English

Calendar month beside the electricity charges by virtue of the Tenancy

Agreement dated 01.09.1992. The vendor of the plaintiff informed the

defendant, about the sale of the tenanted premises to the plaintiff and asked

him to pay the monthly rent to the plaintiff from the month of March, 2007 at

the rate of Rs.400/- per month. The vendor of the plaintiff received rent at the

rate of Rs.400/- per month from the defendant till the month of February, 2007

but the defendant stopped paying rent thereafter. Consequent upon the default

of the defendant to pay the monthly rent, the plaintiff and his vendor jointly

issued a written letter to the defendant calling upon the defendant to pay the

monthly rent. As the defendant intentionally and deliberately neglected

payment of the monthly rent and became a defaulter, further as the same was

required by the plaintiff for his personal necessity; hence, the plaintiff filed the

suit for eviction of the defendant as already indicated above.

5. The defendant in his written-statement, challenged the maintainability of

the suit on various technical grounds. The defendant admitted that he was a

tenant under the vendor of the plaintiff namely Balram Sharma initially at the

rate of Rs.251/- per month; which was subsequently enhanced to Rs.400/- per

month. The defendant claimed that Balram Sharma executed an agreement for

sale in favour of the defendant on 11.05.1992 with the condition that Balram

Sharma can in no way get the premises vacated unless willfully the defendant

so agrees, on his wish. The defendant claimed that he has already paid

Rs.42,150/- for construction of the shop room. The defendant along with Satya

Narayan Sao filed Title Suit No.28 of 2007 for Specific Performance of Contract

of Sale against Balram Sharma. The defendant pleaded that consequent upon

the execution of the agreement for sale, the relationship of landlord and tenant

between the vendor of the plaintiff and the defendant was converted to the

relationship of vendor and purchaser with effect from 11.05.1992.

6. On the basis of the rival pleadings of the parties, the learned trial court

settled the following twelve issues:-

     (1)      Is the suit maintainable in its present form?
     (2)      Is there any valid cause of action for the present suit?
     (3)      Is the suit barred by the law of limitation?
     (4)      Is the suit barred by the provision of Jharkhand Building (L. R & E)
              Control Act?
     (5)      Is the suit barred by the principle of Specific Relief Act?
     (6)      Is the suit barred by principle of T.P. Act?
     (7)      Is there any landlord tenant relationship between plaintiff and
              defendant?
     (8)      Is there any valid contract for selling the tenanted premises in between
              previous landlord and tenant?
     (9)      Is the plaintiff entitled for a decree of eviction on the ground of default

and personal necessity against the defendant from the tenanted premises?

(10) Is the plaintiff entitled for a decree of recovery of 8 month arrear of monthly rent from March, 2007 to October, 2007 from the defendants? (11) Is there any partial eviction possible?

(12) Is the plaintiff entitled for any other relief or reliefs?

7. In support of his case, the plaintiff altogether examined four witnesses

and proved the documents which have been marked Ext. 1 to Ext. 4/a while

the defendant examined six witnesses and also proved the documents which

were marked Ext. A series and B.

8. The learned trial court first took up issue Nos.(4) and (7) together and

after considering the evidence in the record, came to the conclusion that the

relationship of landlord and tenant exists between the parties and decided the

issue No.(7) in favour of the plaintiff and also answered the issue No.(4) in the

negative by holding that there is no bar under the provisions of the Jharkhand

Building (Lease, Rent and Eviction) Control Act in filing the suit.

9. The learned trial court next took up the issue No.(10) and considering the

evidence in the record held that the defendant/tenant having defaulted in

payment of the rent from March, 2007 to October, 2007, the plaintiff is entitled

for a decree for recovery of monthly rent from the month of March, 2007 till

October, 2007 and decided the issue No.(10) in favour of the plaintiff.

10. Thereafter, the learned trial court took up the issue Nos.(9) and (11)

together and after considering the evidence in the record, came to the

conclusion that the plaintiff cannot be said to be have personal necessity of the

suit premises for which eviction can be ordered and in view of the finding of

the issue No.(9), held that the issue No.(11) is irrelevant.

11. The learned trial court disposed of the issue Nos.(5) and (6) against the

defendant as the defendant did not press the same.

12. Then, the learned trial court took up the issue Nos.(1), (2) and (3)

together and held that the suit is maintainable, there is cause of action for the

suit and the suit is not barred by limitation.

13. In respect of the issue No.(8) next taken up by the learned trial court, it

observed that the trial court cannot decide the issue in the absence of any

counter-claim.

14. Lastly, the learned trial court took up the issue No.(12) and held that the

plaintiff is entitled for the decree of eviction and realization of the arrear of

rent and decreed the suit as already indicated above.

15. Being aggrieved by the judgment and decree passed by the learned trial

court, the defendant filed Civil Appeal No.23 of 2017 in the court of Principal

District Judge, Bokaro which was ultimately heard and disposed of by the

learned first appellate by the impugned judgment as already indicated above.

16. The learned first appellate court on the basis of the materials available in

the record and the submissions made before it, formulated the following three

points for determination:-

"I. Whether the judgment and decree passed by the learned court below are sustainable or not?

II. Whether there exists relationship of the landlord and the tenant in between the plaintiff and the defendants?

III. Whether any other relief or reliefs the plaintiff-respondent is entitled?"

17. The learned first appellate court made independent appreciation of the

evidence in the record and took up the point for determination Nos.(I) and (II)

together and arrived at the conclusion that the plaintiff has successfully proved

that the tenant-defendant has defaulted in payment of rent of the suit premises

from March, 2007 to October, 2007 and decided the point for determination

Nos. I and II against the defendant/appellant.

18. The learned first appellate next took up the point for determination No.

III and decided the same against the defendant/appellant and dismissed the

appeal after affirming the judgment and decree passed by the learned trial

court.

19. Learned counsel for the appellant submits that both the courts below

have committed a grave of law by holding that there was a relationship of

landlord and tenant between the defendant and the vendor of the plaintiff, as

such the defendant became a tenant under the plaintiff. It is next submitted

that both the courts below have committed a grave illegality by holding that

the defendant is liable to be evicted on the ground of default. Hence, it is

submitted that the judgment and decree passed by both the courts below be set

aside and the suit of the plaintiff be dismissed.

20. Having heard the submission of the learned counsel for the appellant

made at the Bar and after carefully going through the materials available in the

record, it is pertinent to mention here that it is a settled principle of law as has

been reiterated by the Hon'ble Supreme Court of India in the case of D.N.

Joshi (Dead) through Legal Representatives and Others v. D.C. Harris &

Another reported in (2017) 12 SCC 624 paragraph-32 of which reads as under:-

"32. As a matter of fact, the appellant-defendants have not questioned the validity of the sale deed in favour of the respondent-plaintiffs. The title in the property having vested in Zamir Ahmad, who, in turn, transferred it to the plaintiff (respondents) by way of a sale deed. It is not open to the appellant-defendants to question the ownership of the respondent-plaintiffs in respect of the suit premises. The factum which impressed the trial court and the first appellate court to hold that the gift deed in favour of Zamir Ahmad was invalid, namely, that donor (Akhtari Begum) did not request the tenant (defendant) to attorn to the donee (plaintiff), is also devoid of substance. For, this Court in Ambica

Prasad v. Mohd. Alam [Ambica Prasad v. Mohd. Alam, (2015) 13 SCC 13 : (2016) 1 SCC (Civ) 535] has enunciated that it is well settled that after the transfer of the landlord's right in favour of the transferee, the latter gets all rights and liabilities of the landlord in respect of the subsisting tenancy. Section 109 of the Transfer of Property Act does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him and that attornment is not necessary to confer validity of the transfer of the landlord's rights. Strikingly, even in this case, the transferor continued to collect the rent of the suit property from the tenant with the consent of the transferee after the execution of the exchange deed, until the transferee took over the affairs of the suit property. The Court held that it will not debar the owner or transferee from filing a suit for eviction against the tenant." (Emphasis supplied)

that after the transfer of the landlord's right in favour of the transferee,

the latter gets all rights and liabilities of the landlord in respect of the

subsisting tenancy.

21. Now, coming to the facts of the case, the undisputed fact remains that the

defendant accepted that the vendor of the plaintiff was his landlord. The

undisputed fact also remains that the vendor who was the landlord of the

defendant has transferred the suit property to the plaintiff by way of a

registered sale-deed. The defendant though pleaded of having entered into an

agreement for sale with the vendor of the plaintiff but he could not establish

the same by producing any cogent evidence.

22. Under such circumstances, in view of the said settled principle of law

consequent upon the purchase of the suit property by the plaintiff, the plaintiff

has become the landlord of the defendant as by such purchase the plaintiff has

stepped into the shoes of the landlord of the defendant who was the vendor of

the plaintiff.