Ashok Kumar Thakur vs Col. Surinder Singh Grover (Retd.)

Arun Kumar Goel, J.—Appellant (hereinafter referred to as the Defendant) has filed this appeal against the judgment and decree passed by Mrs Aruna Kapoor, Additional District Judge (1), Shimla in civil appeal No. 12 S/13 of 1992 dated 18-9-1993. By means of impugned judgment and decree, the First Appellate Court has upheld the decree for possession as well as for recovery of Rs. 2,200 besides mesne profits ordered under the decree of the trial Court dated 12-12-1991.

Brief facts giving rise to this case are that a suit for possession as well as for recovery of money by the Respondent (hereinafter referred co as the Plaintiff) against the Defendant. This suit was based on title. Plaintiff claimed himself to be the owner of the property comprised in Khasra No. 6/1, measuring 2 biswas, together with a structure measuring 45'' x 10'' standing on this land. Case of the Plaintiff further was that he had purchased the said two biswas of land from its previous owner Smt Begmu by means of a registered sale deed Ex P-l and the property was situated in Mauza Jungle Mashobra, Tehsil and District Shimla. This sale deed Ex P-1 was on 29-11-1985 registered in the office of Sub-Registrar, Shimla. Defendant was a tenant in respect of the premises in question under its previous owner Smt Begmu on a monthly rental of Rs 100 and the Plaintiff claimed himself to be entitled to the rents/profits etc. of the property in question with effect from 1-12-1985 in his own right being its absolute owner, intimation of the purchase by the Plaintiff was given by both Begmu as well as the Plaintiff to the Defendant who had further been advised by Smt. Begmu to pay the rent to the Plaintiff Notice was also stated to have been served upon the Defendant claiming rent etc. as well as determining his tenancy with the close of month of September, 1987. In addition to this, a claim of Ks 2,320 was made i.e. rent for 16 months commencing from 1-12-1985, besides use and occupation charges for six months from 1-4-1987 and damages,/mesne profits for illegal and unauthorised use and occupation of the suit property for four days at rate of Rs. 30 per day from 1-10-1987 to 4-10-1987.

This suit was contested and resisted by the Defendant who raised preliminary submissions regarding non existence of relationship of landlord and tenant between the parties, property not having been identified, suit being bad for non-joinder of nccessary parties estoppel against the Plaintiff, non-maintainability of suit in the present form and suit not being properly valued for the purposes of court fee and jurisdiction etc. Tenancy was also pleaded not to be terminated according to law and the sale in favour of the Plaintiff being void and illegal On merits while denying the sale in question, it was pleaded that the Defendant was induced as a tenant/lessee vide agreement dated 1-10 1983 of land measuring 90'' X 45'' on a part of which an open Dhara was in existence ; tenancy was pleaded in favour of the Defendant as well as Anr. person, Rs 30,000 were claimed to have been spent by the lessee having been allowed to make additions and alterations by Smt. Begmu where Defendant as well as other persons had established factory and workshop for manufacture of steel items. Rate of rent was admitted as Rs. 100 pm All other averments were also controverted. Liability to pay future masne profit and damages after September, 1987 was disputed and the claim made by the Plaintiff was also stated to be incorrect. Replication was filed by the Plaintiff to the written statement of the Defendant and all the averments made by the Defendant which were contrary to the facts stated in the plaint were disputed.

On the aforesaid pleadings, the parties went to trial on the following issues:

Whether the Plaintiff is entitled for possession of the suit property ? O.P.P.

Whether the tenancy of the Defendant was legally terminated before filing the suit ? O.P.P.

Whether the suit is bad for proper identification of the suit property? O.P.D.

Whether the suit is bad for non-joinder of necessary parties?

O.P.D.

Whether the suit is not maintainable in the present form?

O.P.D.

Whether the suit is not properly valued for the purpose of court fee and jurisdiction? O.P.D.

Whether the sale of the suit property in favour of the Plaintiff is void and illegal as alleged? O.P.D.

7-A. Whether the Plaintiff is entitled to the amount of rent and use and occupation charges upto 30-9-1987 as claimed? O.P.P.

7-B. Whether the Plaintiff is entitled to use and occupation charges with effect from 1-10-1987 as claimed, if so, at what rate?

O.P.P.

Relief

Trial Court decided Issues No. 1, 2, 5, 6, 7-A and 7-B in favour of the Plaintiff and other Issues Nos. 3, 4 and 7 against the Defendant and consequently decreed the suit in favour of the Plaintiff and against the Defendant and while decreeing the suit, it was ordered that the Plaintiff is entitled to Rs. 200 pm as damages with effect from 1-10-1987 till the actual delivery of possession, but the payment of such damages shall be made on deposit of court fee and the Plaintiff was held entitled to interest at the rate of 6% p. a from the date of amount being due till the actual payment and the Plaintiff was also held to be entitled to costs of the suit. The decree passed by the trial Court in favour of the Plaintiff and against the Defendant was questioned by the later in the first appellate Court, however, by means of impugned judgment the appeal met the same fate and the decree passed by the trial Court was upheld, hence this second appeal at the instance of the Defendant.

Though number of contentions have been raised in the grounds of appeal, when this appeal was taken up for hearing the main question raised by Shri K.D. Sood, learned Counsel for the Defendant was that the tenancy could not be split in the background of this case and thus both the courts below have erred in decreeing the suit of the Plaintiff against the Defendant. In order to further buttress his this submission, it was urged by Shri K.D. sood that parties are not at variance with regard to Dhara (shop) standing on a land measuring 90'' x 45'' and the Plaintiff had only purchased an area measuring 2 biswa with shed measuring 45''X l0'' as detai''ed in sale deed Ex P-l, therefore by means of notice Ex P 5 Plaintiff could not have determined the tenancy, besides, this it was pointed nut that the plaint was not in consonance with the provisions of Order 7, Rules 1 and 3. CPC and Chapter ''-C para 9 of Punjab High Court Rules and Orders as applicable to Himachal Pradesh. The property according to Shri K.D. Sood had not been properly identified as such even if it be assumed for the sake of arguments without being conceded that the suit of the Plaintiff could be decreed then the decree passed is vague for want of proper identification of the suit property and therefore this appeal deserves to be allowed. Another submission made by Shri K O Sood was that execution of agreement Ex P 4 was admitted by Smt. Begmu who had appeared as PW 2 and unless -he was joined as a party to the suit, the Plaintiff has no locus standi to maintain the same.

On the other hand Shri Ajay Kumar learned Counsel appearing for the Plaintiff has stoutly controverted the submissions made on behalf of the Defendant and has submitted that the property has been properly identified and in this behalf he has referred to Tatima attached with the sale deed Ex. P-l as well as to plan of the structure Ex P-2 According to him on the analogy of provision of Section 109 of the Transfer of Property Act, the Plaintiff was entitled to the possession of the property in question. In order to advance his submissions further, learned Counsel for the Defendant further pointed out that the sale in present case by Smt. Begmu in favour of the Plaintiff tantamounts to severance of the title regarding the structure between its previous owner and the Plaintiff, as such all rights of the transferor Begmu PW 2 as to the part of structure transferred by her vide Ex P-l stood assigned to the transferee i.e. the Plaintiff and it was further pointed out that on account of severance due to sale of the property covered vide Ex P-l, it entitled the Plaintiff to take possession of the property purchased by him, as all the rights of Smt. Begmu had devolved upon the Plaintiff in respect of the property transferred. Lastly, it was urged by the learned Counsel for the Defendant that the plea now pressed into service regarding severance was never raised before the trial Court nor any issue claimed and thus the Plaintiff is precluded from claiming any relief on the basis of the same.

So far as non raising of the plea of severance is concerned, a perusal of the written statement clearly indicates that the same had not been raised, since the plea is purely legal and calls for recording of no other or further evidence and can be gone into on the materials on record, as such, the learned Counsel appearing for the Plaintiff was permitted to argue of his this plea and objection to the contrary was over ruled Shri K.D. Sood, learned Counsel for the Defendant in suppourt of his aforesaid plea sought help from case S. Sanyal Vs. Gian Chand, and pointed out that since the spilitting of tenancy is impermissible therefore the appeal deserves to be allowed.

On the other hand learned Counsel for the Plaintiff placed reliance in case Mohar Singh (Dead) by Lrs. Vs. Devi Charan and Others, and case Subhash Chandra Sardarmal Lalwani Vs. Radhavallabh Saligram and Others,

In order to properly understand as well as appreciate the contentions of the learned Counsel for the parties, evidence needs to be duly discussed. Plaintiff appeared as PW 1 and has supported his case. He has placed on record copy of sale deed Ex. P-l alongwith its Tatima and Ex. P-2 copy of the plan of structure purchased by him. He had proved on record the original agreement Ex P-4 entered into between Smt Begmu and Defendant as also his having issued notice u/s 106 of the Transfer of Property Act Ex P-5, as also having pasted one copy of the same vide Ex. P-7 in the presence of Ridaman Nath and Anr. person and thus having terminated tenancy. In this cross examination, nothing material has come and he has further denied that it is a case of irrevocable lease. PW 2 is Begmu who had sold the land as well as structure in question to the Plaintiff, nothing material has come out from her statement also on the basis of which u can be said that the Plaintiff is not entitled to the relief claimed. PW 3 is Ridaman Nath, who has proved his endorsement on Ex P 7 regarding affixation of notice when Sqn. Ldr. Manmohan Singh was also present who identified the signatures of the latter DW 1 is Mangat Ram HC who had proved the F I R DW 2 is the Defendant who has stated in support of his case and has also stated that Dinesh Thakur is his real brother in whose favour also he has claimed tenancy. He admitted that Begmu is an illiterate lady and none of the receipts Ex D 2 to Ex. D-19 were in her hand and none of these had been witnessed by 7 any one. While admitting his address on Ex P 5 notice sent by post and Ex. P-7 notice stated to have been affixed was correct, yet in the next breath he denied the receipt thereof. DW 3 is Dinesh Thakur brother of the Defendant In his cross-examination he admitted that the writings of receipts Ex. D-2 to Ex D-19 are in his hand and has stated that regarding the suit property no agreement was entered into between him and Begmu. DW 4 is Anokhi Ram who has stated that he knew the Defendant and Dinesh Thakur and worked with them at sawing machine. DW 5 is Neelam Parkash. who has stated that he knows the Defendant and his brother as well as Begmu and he had scribed the receipts Ex D-3, Ex. D-13 and Ex D 19 at the instance or Smt. Begmu. PW 1 has appeared in rebuttal, who stated that after purchase he as well as Begmu had informed the Defendant regarding such purchase. This is the entire evidence.

So far the case Miss S Sanyal v. Gian Chand (supra) his concerned, it has no applicability to the facts of the present case. In the said judgment the question for consideration related to the premises which were subject-matter of the rent legislation i.e. Delhi and Ajmer Rent Control Act, 1952 Besides this, the tenanted premises consisted of two portions i.e. one for residential and the other wherein a creche cenre was being run Landlord in that case initiated proceedings for ejectment in respect of the residential portion and it was in those circumstances that it was observed that when the contract of tenancy was single and indivisible, relief from a portion used for residential purpose cannot be granted to the landlord and in those premises the ejectment of the tenant was declined from a part of the premises by the Hon''ble Supreme Court.

Now the question which remains to be seen is that what is the effect of sale and whether after effecting the same the severance of status between the seller and the purchaser in respect, of the part property sold and in such a situation the purchaser is entitled to evict the occupant/ tenant of the premises in question.

After considering the respective contentions, this Court is of the view that the tenancy as in the present case will always be held to be subject to the condition that on the transfer of the part of the property the tenancy shall stand severed protanto. In the instant csse, the notice to quit was legal and valid as this notice had been issued during the tenancy period for manufacturing purposes, in the face of this position the Plaintiff has been rightly held to be entitled to the decree in question. Further on account of transfer of a part of property in his favour, the Plaintiff became owner of only of that part and as such he could not have terminated the tenancy of the Defendant in respect of the property for which he had no right as he has not purchased the same. Had such a notice been issued the same would have been invalid and thus the Plaintiff would have failed in his case. Besides this on the basis of the provisions of Section 106 of the Transfer of Property Act, the Plaintiff being the transferee from Begmu was entitled to possess and enjoy of the rights of the owner in the absence of any contract to the contrary. In order to further understand the position in the present case, it may be proper to refer to the records of this case Begmu was the owner of the land comprising Khasra No. 6 measuring 14-12 bighas out of which she sold specific portion identified by Khasra No. 6/1 measuring 2 biswas together with structure standing thereon measuring 45''x10'' as depicted m plan Ex P-2. In these circumstances, it is evident that with the sale of this portion there was a complete severance between the seller and the Plaintiff so far the property purchased by the latter vide Ex P-l is concerned. In these circumstances, it would not be safe to say that Plaintiff would not be entitled to either enjoy the profits or the suit property or to the possession thereof.

So far Section 109 of the Transfer of Property Act is concerned, it is an exception to the general rule. A landlord himself may not be entitled to take possession of a part of the tenanted premises but an exception to this general rule is provided by Section 109 of the Transfer of Property Act which enables the transferee of the part of the premises to exercise all rights of landlord in respect of the portion purchased by him. In these circumstances, even if the lessee/tenant of the property does not attorn in favour of the transferee, that will not make any difference as such an attornment comes into existence not on account of the act of the party but by operation of law and it substitutes and has the same effect on a contratual attornment and thus on account of transfer of a part of the lease property, the transferee (Plaintiff in the present case) automatically severes all the rights of the lessor and thus a new relationship comes into existence between such transferee and the lessee qua the part of the premises. As a consequence of this specific attornment from the lessee in favour of the lessor is not required for the expension of the title in favour of such lessee-transferee As per provisions of Section 109 of the Transfer of Property Act, as the title is complete with the execution of the sale deed and it is not postponed till the lessee attorns in favour of the lessor The relationship between the parties is statutory i e on account of operation of law and is not dependent upon the consent of the lessee as was urged by the learned Counsel for the Defendant that his client has not attorned in favour of the Plaintiff.

In addition to this, when a reference is made to different clauses of Section 109 of the Transfer of Property Act, it is clear that under its last clause of second proviso for apportionment of rent without the consent of the lessee which further goes to show that the purpose and intention of Section 109 of the Transfer of Property Act is to effect a severance of lease as a corollary to this, it is obvious that the lessor gets a right to terminate the lease by notice to quit and consequently it clothes the lessor with all the rights qua the property purchased by him including right to obtain possession on termination of the tenancy. In taking this view, I am further supported by a Full Bench decision of Madhya Pradesh High Court in case Sardarilal Vs. Narayanlal, Division Bench judgment in case B.P. Pathak Vs. Dr. Riyazuddin and Others, and a decision of Karnataka High Court reported in case Jeethamal Nemichand v. S.B. Sukraj ILR 1978 Kar 1125.

In this view of the matter, there is no merit in the contention of Shri K.D. Sood, learned Counsel appearing for the Defendant that the tenancy could not be splitted and the same is rejected. Now comes the question whether the notice Ex P-5 properly terminates the tenancy of the Defendant or not When a reference is made to this notice, it is clear that this notice is dated 18-3-1987 and by means of this, the tenancy has been terminated with the close of the month of March, 1987; Ex P-ft is the acknowledgement of this notice. The address given in Ex P S as well as in acknowledgement Ex. P-6 is the same which has been admitted to be correct. That being so, the statutory presumption in favour of the notice having been delivered to the addressee after it was sent by registered post A.D. as in the present case, besides this, the Plaintiff has also proved on record copy of notice vide Ex P-7 having been duly pasted and in this behalf reference can be usefully made to the statement of PW 3 Ridaman Nath, who has proved that the notice was pasted on the premises of the Defendant in the presence of Manmohan Singh, Sqr. Ldr On this ground there is no merit in the submissions of Sh. K.D. sood and the same is also rejected

Now there remains the plea having been raised by the Defendant that the property has not been properly identified as required under Order 7 Rules 1 and 3 of the CPC as well as Punjab High Court Rules and Orders (supra). When a reference is made to para 1 of the plaint, it clearly identifies that the property purchased by the Plaintiff is comprised in Khasra No. 61 measuring 1 biswas situate in Mauja Jungle Mashobra, Tehsil and District Shimla and its details are given in Ex. P-l alongwith Tatima attached with it which for all intents and purposes forms a part of the sale deed So far structure standing on this khasra number is concerned which qua decree for possession has been passed, reference can usefully be made to Ex P 2. The purpose of provision of Order 7, Rules 1 and 3 of the Punjab High Court Rules and Orders (supra) that the subject of the suit is properly identified for the purpose of the decree being passed and the same should be executable. So far the description of the property is concerned when Ex. P-l alongwith Aks Sajra Kistwar attached to it is taken into account alongwith Ex P-2, it can hardly be said that the property regarding which the suit is filed is not identifiable. As a consequence of this, it is further held that there would not b any difficulty for the executing court to execute the judgment and decree passed by it and the plea to the contrary raised on behalf of the Defendant is hereby rejected. No other point has been raised in support of this appeal.

As a consequence of the above discussion it is apparent that there is no merit in this appeal and the same is dismissed with costs quantified at Rs. 2,000.