Jharkhand High Court
Iii Gudiya Kumari vs Kusum Lata Devi on 18 September, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:28709
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S. A. No. 190 of 2003
1. Suresh Thakur (Died and substituted vide order dated
17.07.2025)
1.i Sumitra Devi, Widow of Late Suresh Thakur.
1.ii Rakhi Kumari, Daughter of Late Suresh Thakur
1.iii Gudiya Kumari, Daughter of Late Suresh Thakur.
All resident of Mohalla Ramnagar, P.O. Boddom Bazar, P.S.
Sadar, District-Hazaribag.
2. Naresh Thakur
3. Sunil Kumar Thakur
4. Anil Kumar Thakur
5. Puspha Kumari (Devi), Daughter of Late Goberdhan Thakur
6. Pratima Kumari (Devi), Daughter of Late Goberdhan Thakur
7. Anima Kumari (Devi) (Substituted vide order dated 15.02.2022)
7.i Atul Kumar, S/O: Sheo Sharan Thakur, Resident of Mohalla
Kani Bazar, P.O. Boddom Bazar, P.S. Sadar Town and District-
Hazaribagh
8. Sunita Kumari (Devi), Daughter of Late Goberdhan Thakur
All residents of Village-Kadma, P.O. Baddam Bazar, P.S.
Katkamsandi, District: Hazaribag.
... ... Defendants/Respondents/Appellants
Versus
1. Kusum Lata Devi, Wife of Sri Bijay Kumar Agarwal
2. Smt. Uma Devi, Wife of Sri Shanti Kumar Agarwal
Both resident of Bara Bazar Hazaribagh, P.O., P.S. and District-
Hazaribag
... ... Plaintiffs/Appellants/Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellant : Mr. Bhaiya Vishwajeet Kumar, Advocate
For the Respondents : Mr. Ayush Aditya, Advocate
---
Lastly heard on 11.09.2025.
26/18.09.2025
1. This appeal has been filed against the judgment 04.03.2003
(decree signed on 25.03.2003) passed by 6th Additional District and
Sessions Judge, Hazaribagh in Title Appeal No. 01 of 1992 whereby
the judgment dated 29.02.1992 (decree signed on 10.03.1992) passed
by the learned Sub-Ordinate Judge-I, Hazaribagh in Eviction Title Suit
No. 25 of 1984 / 04 of 1985 has been set aside.
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2. The suit for eviction was on the ground of default in payment of
rent and personal necessity was dismissed by the learned trial court
and the appeal was allowed by the learned 1st appellate court and
consequently the defendant is the appellant before this court.
3. The suit was filed for the following reliefs:-
a) That after adjudication, a decree may be passed in favour of
the plaintiffs for eviction of the defendant from the tenanted
suit premises described in the schedule-'A' to the plaint and
the plaintiffs be put in khas possession of the same through
the process of the court. That a decree for Rs.350.00 being
the arrears of rent due and for future rent @Rs.75.00 per
month till khas possession is not delivered by passed.
b) That a decree for cost of the suit.
c) That any other relief or reliefs to which the plaintiffs may be
found entitled to.
4. This case was admitted for final hearing vide order dated
18.07.2006 on the following substantial questions of law:-
I. Whether in case of the appellants' possession as a
prospective purchaser by virtue of the agreement for sale,
the defendants-appellants can be said to be the tenant under
the plaintiffs-respondents?
II. Whether the nature of possession of the appellants having
changed as prospective purchaser in part performance of
contract for sale, relationship of landlord and tenant
survived between the parties?
Case of the plaintiffs
5. As per the case of the plaintiffs a double storied house which
consisted of two parts was originally owned and possessed by Prafulla
Chandra Mitra who inducted the defendant in the southern portion of
the ground floor in one portion of the holding as month to month
tenant. The area put under tenancy has been described in Schedule 'A'
of the plaint.
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6. The specific case of the plaintiffs was that the defendant paid
rent to Prafulla Chandra Mitra who granted rent receipts to the
defendant. Prafulla Chandra Mitra died in the month of January, 1975
leaving behind son namely Deepak Mitra, two daughters namely
Chandra Basu and Smt. Ratna Bhadra and his widow namely Smt. Ira
Mitra who jointly inherited the properties.
7. It was further case of the plaintiffs that the defendant started to
pay monthly rent to Deepak Mitra against grant rent receipts and the
defendant paid rent up to the month of July-1975. Since the month of
August-1975 the defendant started remitting rent by money order
which was always received by Deepak Mitra up to the month of
February, 1984 and the rent for the month of March-1984 was
returned to the defendant and it was alleged in the plaint that the return
was with a collusive report of refusal.
8. The plaintiffs purchased the southern half portion of the double
storied building including the suit property by virtue of registered sale
deed dated 06.04.1984 for a consideration of Rs.32,000/- and became
absolute owner of the same. Deepak Mitra had informed the defendant
and other tenants orally and also in writing and also sent a registered
letter dated 26.04.1984 and requested the defendant to make payment
of rent with respect to the schedule 'A' premises to the plaintiffs from
the date of the sale deed. The defendant in turn responded that Deepak
Mitra and his mother Ira Mitra on receipt of earnest money of
Rs.5,000/- had executed an agreement of sale on 06.10.1983 with
respect of the southern half portion of the holding for a total
consideration amount of Rs.30,000/- and since the date of the
agreement, the defendant was in possession of the suit premises as
owner. It was asserted by the plaintiffs that Deepak Mitra and Smt. Ira
Mitra never executed any agreement of sale in favour of the defendant
nor received any amount as earnest money and the agreement was
forged and fabricated document. It was also asserted that the other
tenant on receipt of the intimation referred above made payment of
rent to the plaintiffs.
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9. Since the rent was not paid and the suit premises was required
for the plaintiffs, the suit was filed alleging default in payment of rent
and also personal necessity. The cause of action for the suit arose on
the date of purchase of the house i.e. 06.04.1984 and on 17.04.1984
the date when the defendant refused to vacate the suit premises.
Case of the defendant.
10. The defendant filed the written statement opposing the prayer
and asserting that the suit itself was not maintainable and the suit was
filed to counter the act and the effects of the defendant's suit for
Specific Performance of Contract with respect to the said agreement
entered into between the defendant and the original owner of the
property.
11. It was asserted that Deepak Mitra and his mother had cheated
the defendant by their illegal action of executing a nominal registered
sale deed in favour of the plaintiffs.
12. It was also asserted that the agreement of sale was executed by
Deepak Mitra and his mother in favour of the defendant on 06.10.1983
and in part performance of the contract they received Rs.5,000/- from
the defendant and the balance amount of Rs.25,000/- was to be paid at
the time of execution of the sale deed. Defendant asserted that they
were already in possession of the property since the year 1953.
13. It was also asserted that the purchase by the plaintiffs was made
with the knowledge of the aforesaid agreement and therefore, the
plaintiffs did not acquire any title over the property.
14. The specific case of the defendant was that the plaintiffs did not
become the owner of the property by virtue of the sale deed executed
by Deepak Mitra and others and therefore, the plaintiffs were not
entitled to receive rent from the defendant and an adequate reply was
given to the plaintiffs. It was asserted that the question of payment of
rent to the plaintiffs or anybody did not arise as there was no
relationship of landlord and tenant between the plaintiffs and
defendant. The landlord and tenant relationship between the Deepak
Mitra ceased from the date of the agreement of sale i.e. 6.10.1983 and
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a new contract came into existence which was being enforced by the
defendant by filing a suit for specific performance of the agreement
and the defendant was the prospective owner in possession of the suit
property in part performance of the agreement of sale dated
06.10.1983.
15. A plea was also raised that the suit for enforcement of the
specific performance of agreement dated 06.10.1983 was filed which
was pending at the time of filing of the suit.
16. The learned trial court had framed 6 issues and the following
issues are relevant for the purposes of answering the substantial
questions of law framed by this court: -
(iv) Whether there is a landlord and tenant relationship
between the plaintiffs and the defendant?
(v) Whether the plaintiffs are entitled to get decree by
evicting the defendant from the disputed house on the
grounds of personal necessity and default in payment of
rent?
17. While considering the issue No. iv as to whether there was
relationship of landlord and tenant, the learned trial court considered
the materials including the agreement of sale dated 06.10.1983 and
also the fact that the money order was lastly sent to Deepak Mitra in
the month of March,1984 which he refused to accept, recorded a
finding that there was no relationship of landlord and tenant between
the parties as the suit for specific performance of agreement of sale
dated 06.10.1983 entered into between the vendor of the plaintiffs and
the defendant (tenant) being Title Suit No. 56 of 1984 was already
decreed in favour of the defendant (tenant).
18. It was also held while deciding the issue No. (v) that even if it
is assumed that there was default in payment of rent and there was
personal necessity, the agreement of sale dated 06.10.1983 having
been found to be valid and binding upon the vendors of the plaintiffs
in Title Suit No. 56 of 1984, no decree of eviction could be passed by
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treating the plaintiffs as the landlord with respect to the suit property.
The learned trial court ultimately dismissed the suit.
19. The learned 1st appellate court has framed the following points
for determination: -
Whether the judgment and decree passed by the learned court
below are in accordance with law or not?
20. It is important to note that the suit for specific performance of
contract decreed in favour of the plaintiff of the said case (defendant
in this case-the tenant) on 29.02.1992 in Title Suit No. 56 of 1984 was
set aside by the 1st appellate court vide judgment dated 04.03.2003 in
Title Appeal No. 8 of 1992, against which another 2nd appeal has been
filed which is the subject matter of 2nd Appeal No. 178 of 2003, which
has been analogously heard with this 2nd appeal.
21. The learned 1st appellate court in the present case has recorded
that the result of Title Appeal No. 8 of 1992 arising out of Title Suit
No. 56 of 1984 shall automatically affect the result of the 1st appeal in
the present case. However, the learned 1st appellate court in the
present case also recorded that the learned trial court came to a wrong
conclusion and against the law that only because the deed of
agreement of sale dated 06.10.1983 was found to be valid, the eviction
suit shall fail. The Learned 1st appellate court further recorded that the
learned trial court appears to have fully ignored the important legal
aspect of the matter that when the defendant of the present suit did not
perform the part of contract by depositing the remaining portion of
consideration amount within the stipulated period of six months as
required under the agreement dated 06.10.1983, the defendant of the
present eviction suit was not entitled to get the sale deed executed in
his favour by the vendors of the plaintiffs with respect to the suit
premises.
22. The learned 1st appellate court thereafter recorded that the
learned trial court has not discussed about the subsequent purchase of
the suit premises by the plaintiffs on 06.04.1984 by registered sale
deed and arrived at a wrong/erroneous conclusion as the trial court
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completely ignored the ground of eviction taken by the plaintiffs in the
present eviction suit.
23. The learned 1st appellate court observed that the present case is
well influenced by the other judgment passed in 1st appeal relating to
the specific performance of contract arising out of Title Suit No. 56 of
1984 whereby the judgment passed in the Title Suit No. 56 of 1984 in
favour of the plaintiff of the said case (defendant-tenant in this case)
decreeing the suit for specific performance of the agreement dated
06.10.1983 has been set aside.
24. The learned 1st appellate court observed that the finding of the
1st appellate court is appeal arising out of Title Suit No. 56 of 1984,
whereby the decree of specific performance of contract was set aside,
shall automatically affect the 1st appeal of the present case and held
that the judgment of the trial court in this case cannot be sustained.
25. The learned 1st appellate court further recorded a finding in
paragraph 11 of the impugned judgment that the plaintiffs' vendor was
admittedly receiving the rent from the defendant and therefore, there
was a relationship of landlord and tenant between the plaintiffs'
vendor and the defendant. The learned 1st appellate court ultimately
held that the plaintiffs were entitled for a decree of eviction and
consequently allowed the appeal and one month's time was granted to
vacate the suit premises.
Argument of the appellants
26. The learned counsel for the appellants while referring to the
substantial question of law has submitted that the appellants were the
prospective purchaser of the suit property by virtue of agreement of
sale dated 06.10.1983 and therefore, it could not be said that there was
a relationship of landlord and tenant between the plaintiffs and
defendant. Plaintiffs were the purchasers of the suit property vide
registered sale deed dated 06.04.1984, that is, after the agreement of
sale dated 06.10.1983 was entered into between the vendors of the
plaintiffs and the defendant of the present case.
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27. The learned counsel has submitted that the learned 1 st appellate
court has travelled beyond the scope of the suit inasmuch as the suit
was to be decided with respect to the relationship of landlord and
tenant and the question of title was totally out of the scope of the suit.
28. Learned counsel for the appellants submits that pursuant to the
agreement dated 06.10.1983 the defendant did not pay the rent to the
vendor of the plaintiffs as the tenant had become the owner of the suit
property and as per the agreement itself the defendant was not
required to pay the rent after the agreement of sale. He submits that
once there was an agreement, the defendant was not supposed to pay
rent after entering into agreement of sale and the relationship of
landlord and tenant ceased on and from 06.10.1983 and therefore, the
plaintiffs who are the subsequent purchasers of the suit property could
not assert relationship of landlord and tenant between the parties. He
submits that there was no occasion for the defendant to tender any rent
to the plaintiffs and the defendant had never tendered rent to the
plaintiffs.
29. Learned counsel for the appellants has also submitted that since
the defendant had entered into an agreement of sale dated 06.10.1983
with the vendors of the plaintiffs and continued in possession of the
suit premises, the continued possession was not as a tenant but as the
owner of the premises. Therefore, the relationship of landlord and
tenant ceased on and from 06.10.1983 and the defendant was in part
performance of the contract of sale as a prospective purchaser
continued in possession of the suit property.
30. Learned counsel for the appellants has referred to Section 53A
of the Transfer of Property Act and has submitted that the possession
of the defendant in part performance of agreement of sale is duly
protected under the law.
31. Learned counsel has also relied upon the judgment passed by
the Hon'ble Supreme Court reported in (2002) 1 SCC 90 (Rajendra
Tiwary Vs. Basudeo Prasad and Another) and has submitted that it
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has been held that in a case dealing with suit for eviction there is no
scope for entering into title dispute.
32. Learned counsel has also relied upon the judgment passed by
Hon'ble Supreme Court in the case of R. Kanthimathi And Anr. vs
Beatrice Xavier (Mrs) reported in (2000) 9 SCC 339 to submit that
once an agreement of sale is entered into between the tenant and the
original landlord the relationship between the parties of that of
landlord and tenant ceases to exist. He submits that both the
substantial questions of law be answered in favour of the appellants
and against the respondents.
Arguments of the respondents
33. Learned counsel for the respondents on the other hand while
opposing the prayer has submitted that the learned 1st appellate court
has considered every aspect of the matter while coming to a finding
that there was a relationship of landlord and tenant between the
parties. He submits that since it is not in dispute that the plaintiffs of
the present case had requested the defendant to tender rent pursuant to
their purchase by way of registered deed and the defendant refused to
tender rent to the plaintiffs, therefore, the default in payment of rent is
not in dispute.
34. The learned counsel for the respondents has also submitted that
attornment of tenancy is not required. Learned counsel for the
respondents submits that the suit for specific performance of contract
was filed on 21.05.1984 and the suit for eviction was filed on
31.08.1984. He submits that there is no dispute that the defendant was
fully aware about the sale deed executed in favour of the plaintiffs but
inspite of knowledge they did not tender any rent to the plaintiffs.
35. Learned counsel for the respondents has also submitted that the
date of agreement was 06.10.1983 and it is admitted from the records
of this case that the defendant had tendered rent till March, 1984
through money order to the vendor of the plaintiffs and so far as the
rent of March 1984 was concerned, the same was refused to accept by
the vendor of the plaintiffs.
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36. Learned counsel for the respondents submits that merely
because there is an agreement of sale, the same does not confer title
upon the defendant and in the case arising out of Bihar Buildings
(Lease, Rent & Eviction) Control Act, 1982 what is required to be
seen is only the relationship of landlord and tenant. He submits that in
view of the fact that the defendant continued to tender rent even after
the agreement dated 06.10.1983, the same itself reveals that the
relationship of landlord and tenant continued even after the agreement
dated 06.10.1983. The learned counsel has submitted that so far as
judgment reported in the case of R. Kanthimathi And Anr. vs
Beatrice Xavier (Mrs) (Supra) is concerned, in the said case the
conduct of the landlady right from the date of entering into agreement
of sale and accepting money towards the sale consideration, delivering
possession in lieu of such agreement indicated that the old relationship
of landlord and tenant was repudiated by the land lady and the parties
entered into a new cloak of seller and purchaser and their relationship
was governed by the terms of the agreement of sale. It was held that
even if parties under the agreement of sale do not perform their
obligations, the remedy as permissible under law may be availed. The
relevant clauses of agreement of sale were also quoted and considered
to arrive at the finding.
37. The learned counsel for the respondents has submitted that the
nature of the agreement of sale in the present case is different and the
conduct of the parties is also required to be considered. He has
submitted that the said judgment of R. Kanthimathi (Supra) has been
considered by the Hon'ble Supreme Court in a subsequent judgment
reported in (2022) 10 SCC 496 [Karan Kapoor Vs. Madhuri Kumar]
and by referring to paragraph 31 the aforesaid judgment it was argued
that when possession is with the person by virtue of part performance
of agreement as prescribed under Section 53 A of Transfer of Property
Act, he has a right to defend or protect his possession. The said
judgment was sought to be distinguished by the respondents of the
case by stating that in the case of R. Kanthimathi And Anr. vs
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Beatrice Xavier (Mrs)(Supra) the terms of the agreement was
considered and it reflected that the major amount of the sale
consideration was paid and only Rs.5,000/- remained to be paid and
by conveyance the possession of the property was already
surrendered. Ultimately in the said case of Karan Kapoor (Supra) the
payment of rent to be determined was made to be subject to outcome
of the pending suit for specific performance of contract and the matter
was remitted back to the trial court. Learned counsel has submitted
that the judgment relied upon by the appellants in the case of R.
Kanthimathi And Anr. vs Beatrice Xavier (Mrs) (Supra) does not
apply to the facts of the case and ultimately the outcome of this case
would also depend upon the outcome of S.A No. 178 of 2003 relating
to the suit of specific performance of agreement dated 06.10.1983
arising out of Title Suit No. 56 of 1984.
38. The learned counsel has also submitted that the personal
necessity was also decided in favour of the plaintiffs and the point of
partial eviction was also considered and rejected.
Findings of this court.
The substantial question of law No. I and II
39. Both the substantial questions of law are co-related and
therefore they are taken up together. Before proceeding to consider the
facts of this case it would be necessary to examine the judgement
relied upon by the appellants.
40. In the judgement reported (2002) 1 SCC 90 (Rajendra Tiwary
Vs. Basudeo Prasad and Another), it has been held that title dispute
cannot be decided in suit seeking eviction under statute dealing with
tenancy laws. However, this Court is of the considered view that in a
case where the defendant disputes the relationship of land lord and
tenant, the court can incidentally enter into the dispute of title in order
to come to a finding on the point of land lord tenant relationship.
41. In the judgment passed by the Hon'ble Supreme Court reported
in Shamim Akhtar v. Iqbal Ahmad & Another (2000) 8 SCC 123, it
has been held that the question of title of the plaintiff to the suit house
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could be considered by the Small Cause Court in the proceedings as
an incidental question and final determination of the title could be left
for decision of the competent court. It has been held that in such
circumstances, it could not be said that for the purpose of granting the
relief claimed by the plaintiff it was absolutely necessary for the Small
Cause Court to determine finally the title to the property. The tenant
by merely denying the relationship of landlord and tenant could not
avoid the eviction proceeding under the Rent Control Act.
Considering the aforesaid decision, there is no doubt that in a suit for
eviction under the Rent Control Act, title can be gone into only as an
incidental question and final determination is to be left for title suit
dealing with the title of the property.
42. In the present case the learned trial court dismissed the suit
primarily on the ground that the appellant had lost the suit seeking
specific performance of agreement dated 06.10.1983 and the learned
1st appellate court took into consideration the fact that the judgment
passed in the suit seeking specific performance of agreement was set
aside by this court in the connected 1st appeal. The learned 1st
appellate court in the present case also examined as to whether there
existed a landlord tenant relationship between the parties.
43. So far as the judgment relied upon by the appellants reported in
R. Kanthimathi And Anr. vs Beatrice Xavier (Mrs) (Supra) is
concerned, the point for consideration in the said case was, whether on
the execution of agreement of sale by the landlord with the tenant and
landlord having received substantial portion of sale consideration, the
relationship of landlord-tenant inter se between them ceases and fresh
rights and obligations flow from the said agreement. In the said case,
the agreement of sale was executed 04.05.1977 and the tenant paid
rent regularly only upto March, 1977 and thereafter did not pay the
rent regularly. The terms and conditions of the agreement of sale have
been quoted in the said judgment itself wherein it was clearly
mentioned that the balance consideration will be paid at the time of
registration and the landlady shall complete the transaction of sale and
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conveyance and the property demised was already been surrendered to
possession of the tenant. It was the case of the tenant that after
entering into the agreement, the landlady accepted Rs. 20,000/-
confirming delivery of possession and in this context, there was clear
intent of the landlady to change the nature of relationship between the
parties and much emphasis was laid on the words "already been
surrendered" which found place in the agreement involved in the said
case. In this background, the Hon'ble Supreme Court held that any
jural relationship between two persons could be created through
agreement and similarly could be changed through agreement subject
to the limitations under the law. The Hon'ble Supreme Court further
noted that earlier when the appellants were inducted into tenancy it
only meant that both agreed for a relationship of landlord and tenant
and later on, when the landlord decided to sell the property to the
tenant and the tenant agreed by entering into agreement, they by their
positive act changed their relationship as purchaser and seller.
Paragraphs 6 to 9 of the aforesaid judgment are quoted as under:
"6. Any jural relationship between two persons could be
created through agreement and similarly could be changed
through agreement subject to the limitations under the law.
Earlier when the appellants were inducted into tenancy it only
means both agreed that their relationship was to be that of
landlord and tenant. Later when the landlord decided to sell
this property to the tenant and the tenant agreed by entering
into agreement, they by their positive act changed their
relationship as purchaser and seller. When the seller-landlord
accepts the sum, he actually acts under this agreement. This
acceptance preceded by agreement of sale changes their
relationship. This is how they intended. Once accepting such a
change, their relationship of landlord-tenant ceases.
7. This Court in Arjunlal Bhatt Mall Gothani v. Girish
Chandra Dutta (1973) 2 SCC 197 held as under:
"The appellants were tenants in the premises of the
respondent landlord and three suits, including an
eviction suit, were pending against them. By an
agreement between the appellants and the
respondent, the respondent agreed to sell the whole
property to the appellants for a certain sum to be
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paid to him by equal instalments. Clause (5) of the
agreement provided that in case of default of any
instalment, the agreement for sale would stand
cancelled and if the purchasers failed to pay the
defaulted instalments within one month's notice the
payments made would stand forfeited and
purchasers would make over possession of the
property to the vendor."
"Under clause (5) of the agreement the question of
giving notice arises only if the vendor wanted to
forfeit the instalments paid by the purchaser. Not
even one instalment having been paid the question
of forfeiture does not arise and no notice was
necessary for cancelling agreement. It stood
automatically cancelled. It was sought to be argued
before us that once the agreement stood cancelled
the appellants stood restored to their original
position as tenants and the suit could not be filed
without giving notice under the Transfer of
Property Act. We are of opinion that when the
agreement, dated June 7, 1959, was entered into the
old relationship of landlord and tenant came to an
end. The rights and liabilities of the parties have to
be worked out on the basis of that agreement."
8. This decision clearly spells out that once there is agreement
of sale between a landlord and a tenant, the old relationship
as such comes to an end. It goes on to record that even after
the cancellation of such agreement of sale the status of tenant
is not restored as such. In other words, on the date of
execution of the aforesaid agreement of sale their status as
that of landlord and tenant changed into a new status as that
of a purchaser and a seller.
9. Thus, within this legal premises, the submission by learned
counsel for the respondent for revival of their old relationship
of landlord and tenant when she repudiates this agreement by
sending back to the tenant Rs. 20,000 through a cheque
(which according to the appellant was not encashed) cannot
be accepted. So, we have no hesitation to reject the same.
Every conduct of the landlady right from the date of entering
into agreement of sale, accepting money towards the sale
consideration, delivering possession in lieu of such
agreement all clearly indicates and has to be construed in
law that she repudiated her old relationship of landlord and
tenant. Thus, after this parties enter into a new cloak of seller
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and purchaser and their relationship is to be governed under
the said terms of the agreement. Every right and obligation
thereafter would flow from it. Even if parties under the
agreement of sale do not perform their obligations, remedy
may be availed in law as permissible under in law. Hence, we
have no hesitation to hold that the courts below including the
High Court committed error in holding that the tenant
committed wilful default. When the appellant is no more the
tenant how can non-payment be construed as wilful default?"
(emphasis supplied)"
44. After considering the conduct of the landlady and also the
agreement of sale involved in the said case, it has been held in the
aforesaid judgment that once accepting the change of relationship, the
earlier relationship of landlord and tenant ceased.
45. The said judgement is clearly distinguishable when seen in light
of the facts of the present case. In the present case, in spite of entering
into the agreement of sale dated 06.10.1983 between the vendor of the
plaintiffs, the original landlord and the defendant, the tenant, the
defendant continued to tender rent to the vendor of the plaintiffs (the
ex-landlord) till March 1984 and then on 06.04.1984 when the suit
property was sold to the present plaintiffs by registered sale deed, the
present plaintiffs acquired the same status as their vendor-ex-landlord.
This Court finds that the parties to the agreement dated 06.10.1983
conducted themselves in aforesaid manner and continued to pay and
accept rent in-spite of the fact that it was stipulated in the agreement
dated 06.10.1983 that the tenant would not pay rent from that day. In
view of the aforesaid facts and circumstances, this Court is of the
considered view that the parties to the agreement continued their
relationship of landlord and tenant even after the agreement dated
06.10.1983 and such landlord -tenant relationship between the vendors
of the plaintiffs and the defendant continued and would have
continued till the execution of sale deed pursuant to the agreement
dated 06.10.1983. After purchase of the suit property, the plaintiffs
acquired the status of landlord as attornment by tenant is not required.
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Admittedly the defendant did not pay rent to the plaintiffs in-spite of
due information about the sale of the property to the plaintiffs.
46. The learned 1st appellate court has rightly recorded a finding in
paragraph 11 of the impugned judgment that the plaintiffs' vendor was
admittedly receiving the rent from the defendant and therefore, there
was a relationship of landlord and tenant between the plaintiffs'
vendor and the defendant.
47. This Court holds that though the appellants acquired the status
of prospective purchaser by virtue of agreement of sale dated
06.10.1983 and payment of part consideration amount of Rs.5,000/-
out of 30,000/- and continued to occupy the tenanted premises but the
relationship of landlord and tenant survived between the vendor of the
plaintiffs and the defendant inspite of agreement of sale dated
06.10.1983 as the appellants continued to pay rent and the vendors of
the plaintiffs continued to accept rent. The attornment of tenancy by
the tenant is not required in view of Section 109 of the Transfer of
Property Act, 1882 and consequently, the plaintiffs also acquired the
status of landlord upon purchase of the property vide registered deed
on 06.04.1984. Both the substantial questions of law are accordingly
answered against the appellants (defendant-tenant) and in favour of
the respondents (plaintiffs- landlord).
48. This is over and above the fact that the connected second appeal
being S.A no. 178 of 2003 filed by the defendant (tenant) arising out
of Title Suit No. 56 of 1984 relating to specific performance of
agreement dated 06.10.1983 has been dismissed by this Court by
another judgment passed today.
49. Non-payment of rent to the plaintiffs by the defendant is an
admitted fact and bonafide requirement of the plaintiffs has already
been recorded by the learned 1st appellate court in favour of the
plaintiffs in connection with which no substantial question of law has
been framed. Accordingly, the order of eviction passed by the learned
1st appellate court is sustained.
50. This 2nd appeal is accordingly dismissed.
2025:JHHC:28709
51. Pending I.A., if any, is dismissed as not pressed.
52. Let a copy of this order be communicated to the concerned
court through "Fax/e-mail".
53. Let the records be immediately sent back to the concerned
court.
(Anubha Rawat Choudhary, J.)
18th September, 2025
Rakesh/-
