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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ARUN BHANSALI, J.
LRs of Late Shri Guru Bux Singh
vs.
Khem Singh
CIVIL SECOND APPEAL NO.226/1999
Decided on: 28th February, 2014
LANDLORD AND TENANT - TRANSFER OF PROPERTY - RELATIONSHIP - EVICTION - SECTION 109 OF THE TRANSFER OF PROPERTY ACT, 1882 - SECTION 3(III) OF THE RAJASTHAN PREMISES (CONTROL OF RENT AND EVICTION) ACT, 1950 - NOTICE OF TRANSFER - ATTORNMENT - DERIVATIVE TITLE - QUESTIONING BY TENANT - SECTION 116 OF THE EVIDENCE ACT, 1872 - SUMMARY SUIT FOR EVICTION - GROUNDS - DEFAULT IN PAYMENT OF RENT - REASONABLE AND BONA FIDE REQUIREMENT - ISSUES - FINDINGS - APPELLATE COURT'S REVERSAL - SUBSTANTIAL QUESTIONS OF LAW - ADMISSIBILITY OF ADDITIONAL EVIDENCE - ORDER XLI, RULE 27 CPC - APPLICATION - REJECTION.
Fact of the Case:
Plaintiff, Khem Singh, filed a suit for eviction against the defendant, Guru Bux Singh, on the ground of default in payment of rent. During the pendency of the suit, Khem Singh filed an application under Order XXII, Rule 3 and 10 CPC seeking to be substituted as the plaintiff in place of the original plaintiff, Maji Leel Kanwar, who had died. Khem Singh claimed that he had purchased the suit property from a Trust created by Maji Leel Kanwar and, therefore, had become the landlord of the defendant. The defendant contested the application, denying the existence of the Trust and the transfer of the property to Khem Singh. The trial court allowed Khem Singh's application and substituted him as the plaintiff. The defendant filed an appeal against the trial court's order, which was dismissed by the first appellate court. The defendant then filed a second appeal in the High Court.
Finding of the Court:
The High Court held that Khem Singh had become the landlord of the defendant by virtue of the registered sale deeds executed by Maji Leel Kanwar as Trustee of the Trust in his favor. The Court relied on Section 109 of the Transfer of Property Act, 1882 and Section 3(iii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 to hold that the transfer of ownership of the premises to Khem Singh resulted in a statutory attornment by the tenant in his favor. The Court also held that the defendant could not question the derivative title of Khem Singh, as such a plea would not be barred by Section 116 of the Evidence Act, 1872. The Court further held that the first appellate court had not committed any illegality in appreciating the ambit and effect of the sale deeds.
Issues: 1. Whether Khem Singh became the landlord of the defendant by virtue of the registered sale deeds executed by Maji Leel Kanwar as Trustee of the Trust in his favor? 2. Whether the first appellate court committed illegality in appreciating the ambit and effect of the sale deeds?
Ratio Decidendi: 1. Section 109 of the Transfer of Property Act, 1882 provides that on transfer of ownership of the premises, the transferee becomes the landlord and is entitled to receive the rent. Attornment by the tenant is not necessary to confer validity to the transfer. 2. Section 3(iii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 defines 'landlord' as any person who is entitled to receive the rent of any premises. 3. The defendant could not question the derivative title of Khem Singh, as such a plea would not be barred by Section 116 of the Evidence Act, 1872.
Final Decision: The High Court dismissed the defendant's second appeal, holding that Khem Singh had become the landlord of the defendant by virtue of the registered sale deeds and that the first appellate court had not committed any illegality in appreciating the ambit and effect of the sale deeds.
This second appeal under Section 100 CPC is directed against appellate judgment and decree dated 24.02.1999 passed by Additional District Judge No.2, Jodhpur, whereby, the judgment and decree dated 13.12.1996 passed by Additional Civil Judge (Junior Division) No.1, Jodhpur has been modified.
The facts in brief may be noticed thus : a suit for eviction on the ground of default in payment of rent was filed on 03.02.1981 by Maji Leel Kanwar Deodi through her power of attorney holder Hanuman Singh against Guru Bux Singh for eviction from shop No.10 and a room adjacent to it situated at Sojati Gate, Jodhpur, the rate of rent was indicated at Rs.99/-per month; during pendency of the suit, one Khem Singh S/o Shri Gopi Ram (present respondent) filed application under Order XXII, Rule 3 and 10 CPC on 03.09.1981 with the averments that he has purchased the suit property on 15.04.1981 for his personal requirement from Rai Bahadur Vijay Singh Ji Ganpat Singh Ji Mertia Rathore Rian Badi Dharmarth Trust ('the Trust') by a registered sale deed and since then he has become owner of the property and landlord of the defendant; the plaintiff had made a Public Trust of the property in the name of the Trust on 18.03.1981 and got it registered, copies of both the documents were being filed; the applicant has become owner of the suit property and information in this regard has been given to the defendant; the right to prosecute the present suit has accrued to the applicant on 15.04.1981 and now as plaintiff has died on 23.08.1981, therefore, the right to sue the present suit survives in applicant only; it was prayed that in place of plaintiff, the applicant be substituted as plaintiff.
A reply to the application was filed by the defendant and the averments contained in the application were denied for want of knowledge, as the defendant was not given any information about creation of the Trust and no information has been given by the Trust to the defendant; receipt of notice was denied.
The application filed by the applicant Khem Singh was allowed by the trial court on 20.01.1982, inter alia, on coming to the conclusion that during the life time of Maji Leel Kanwar, the suit property was sold to Khem Singh and Maji Leel Kanwar was also a Trustee in the Trust and, therefore, the transfer in favour of Khem Singh has taken place during the life time of Maji Leel Kanwar, as such, the applicant was entitled to be substituted as plaintiff; the trial court also opined that there was no substance in the argument of the defendant that after transfer by Maji Leel Kanwar the Trustees have not become the parties to the suit and, therefore, Khem Singh cannot be substituted as, in the opinion of the trial court, the position of Khem Singh was the same, which was that of his predecessors in title Trust or that of Maji Leel Kanwar.
After impleadment, Khem Singh filed application under Order VI, Rule 17 CPC seeking to add ground of reasonable and bona fide requirement of the suit premises, which application was allowed by the trial court.
The amended plaint was responded by the defendant by way of filing written statement denying the facts relating to creation of the Trust by Maji Leel Kanwar and purchase of property by Khem Singh from the said Trust; the derivative title of Khem Singh was denied and it was stated that the suit by Khem Singh was not maintainable; the plea regarding default in payment of rent and reasonable and bona fide requirement were also denied besides raising other objections.
The trial court framed 13 issues. The evidence was led by the parties and under issue Nos.1, 2B and 9A, the trial court came to the conclusion that the defendant has committed default in payment of rent, the relationship of landlord and tenant between Khem Singh and the defendant is not proved and, therefore, despite default in payment of rent, the plaintiff was not entitled to take benefit of the same; issue No.2A was decided holding that the plaintiff could t
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