JUDGMENT
G.M. Lodha, J.
1. The plaintiff-respondent filed a suit on 28th June, 1976 for eviction of the premises leased to the defendant-appellant on two fold grounds of default in the payment of rent and, bonafide personal necessity as provided by Clauses (a) & (h) of sub Section 11 of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, hereinafter referred to as the Act.
2. The suit was filed in the court of Munsif, Bharatpur. The trial court framed the issues on 24th November, 1977 and passed an order on 7th January, 1978 directing the defendant to deposit the arrears of rent at the rate of Rs. 18/- per month and the total amount of arrears of rent was being Rs. 1020/- only. The appeal filed against this order of 7th January, 1978 was dismissed on 11th January, 1979. On 5th February, 1980, an application was filed by the plaintiff under Section 13(5) of the Act for striking out the defence of the defendant. The trial court dismissed this application and the appeal was filed by the plaintiff and this appeal was allowed on 27th September, 1980 by the Additional District Judge, Bharatpur and the defence of the defendant was struck off.
3. The trial Court decided the issues against the defendant-appellant on 10th November, 1981 and decreed the suit. Against this judgment and decree of the Munsif, Bharatpur, the defendant filed an appeal before the District Judge, Bharatpur which was subsequently transferred to the Court of the Additional District Judge, Bharatpur.
4. During the pendency of this appeal of the defendant, the premises in dispute were transferred by the plaintiff to other persons and, therefore, the appellate court was of the view that the ground of bonafide necessity cannot subsist. However, the finding on issue No. 3 and 5 were upheld and, it was ordered that the defendant be evicted on the ground mentioned in Clause (a) of Section 13(1) of the Act. Against the judgment & decree of the appellate court dismissing the appeal of the defendant, this second appeal has been filed by the defendant.
5. During the course of arguments of this second appeal, Shri D.K. Soral, the learned Advocate, moved an application for permitting the purchasers of the premises in dispute, Sarva Shri Balveer Singh, Arjua Singh and Brijendra Singh s/o Nathisingh, Jat resident of village Kumha Tehsil & District Bharatpur (Rajasthan) to be impleaded as respondents-parties, as their rights are likely to be affected. This application under Order 22 Rule 10 read with Section 146, C.P.C. was filed on 8th February, 1983 after a copy of it was given to Shri P.N. Agrawal, the learned Advocate for the appellant-defendant.
6. This prayer of the three brothers who are sons of Nathisingh deserves to be considered first in priority because during the course of the arguments both the parties were serious about the consequence of the purchasers joining in appeal or suit in an ejectment decree which has been given on the basis of the default and the result of their non-joinder as per law laid down by their Lordships of the Supreme Court in Saila Bala v. Nirmala Sundari and Shew Bux Mohata v. Bengal Brewaries .
7. Shri Soral submitted that he is counsel for all the three applicants and, therefore, nothing is required to be done except permitting them to join as parties in this case. Shri Prem Nidhi opposed the prayer of Shri Soral on various grounds. I heard arguments at length on more than one day in main appeal and both the learned Counsel were told that I would consider this application alongwith the appeal at the time of passing final order and they may address the arguments in the main appeal primarily and also on this application, so that piece meal decision are not given and hearing of the case is not prolonged by deciding this application separately.
8. It is, therefore, necessary that it must be first understood, what is the implication of this application of Shri Soral dated the 8th February, 1983 and whether it should be allowed?
9. Smt. M.B. Augustus was the owner of this property and plaintiff decree holder in the present case. By a registered sale-deed dated the 16th April, 1982 Arjunsingb, Balveersingh and Brijendra Singh purchased this property. They have therefore prayed through counsel, Shri D.K. Soral that they may be permitted to be impleaded as respondents in this second appeal. This application was moved on 8th February, 1983. The application is accompanied by photo-stat copy of the sale deed. This appeal was admitted on 3rd February 1983. From the proceedings of 3rd February, 1983, it appears that Shri Soral appeared on behalf of Arjun Singh, the present applicant-transferee. The order of admission of this second appeal, itself, mentions that Shri Soral appeared for the alleged transferee and submitted that he will file power of attorney. At that time no objection was raised by the appellant’s counsel to the appearance of Shri Soral on behalf of Arjunsingh, the alleged transferee. In fact, it was on the basis of appearance of Shri Soral on behalf of the alleged transferee from the plaintiff that the case was fixed for arguments in hearing on 7th February, 1983. Shri Soral also promised to file power of attorney on behalf of the plaintiff-respondent. The brother Judge, Dr. K.S. Sidhu J., admitted this second appeal & ordered that the record is not needed to be called and the following question of law may be decided-
Whether the lessor in this case is entitled to defend the decree far eviction passed in his favour and against the tenant on the ground of non-payment of rent under Section 13(1)(a), Rajasthan Premises (Control of Rent & Eviction) Act, 1950, not withstanding the fact that the lessor transferred the premises in dispute in favour of Arjunsingh during the pendency of the appeal?
10. Inspite of the above developments, the appellant has chosen to oppose the application filed by Shri Soral by filing reply to it on 18th February, 1983 after the case was heard on merits on 17th February, 1983.
11. In view of the arguments which have been made before me by both the learned Counsel for the parties on behalf of the plaintiff, defendant and transferees, the details of which, I would mention a little later when I discuss the merits of the appeal. I have got no hesitation in holding that the transferees have got legal to participate in this second appeal in order to show to this Court that, the decree of eviction passed in favour of the transferor-plaintiff need not be disturbed & interfered with & they should be allowed to enjoy the fruits of that decree by stepping in the shoes of the decree-holder plaintiff vendor. I am further of the view that it is not necessary to allow the parties to lead evidence now on account of joining of the transferees as respondents in this case and the belated prayer after the hearing of the arguments on 17th February, 1983 which has been made by the learned Counsel for the appellant on 18th February, 1983, cannot by permitted in the interest of justice. It is also not intelligible, what evidence would be led by the parties now because as per the order dated the 3rd February, 1983 which was passed after hearing Shri Soral for the transferees and Shri Prero Nidhi for the defendant-appellant, the learned brother Justice Dr. Sidhu expressly ordered that the record of the case need not be summoned, as a pure question of law is involved. I am convinced that the legal rights of the parties including the transferees will have to be decided only on the basis of the legal position which emerges on account of transfer and the rights of the transferee which flow from the Transfer of Property Act and the Act and all other relevant laws. Both. Shri Prem Nidhi and Shri Soral has also relied upon the sale deed, a photo-stat copy of which has been filed in support of their contentions & I, therefore, take the sale deed into consideration. The application of Shri Soral is also allowed and I have made it known to both the learned Counsel during the course of arguments that they should proceed to argue their respective cases on merits, without expecting any separate decision for this application as in view of the order dated the 3rd February, 1983 passed in the presence of the parties, the entire appeal is to be decided on a question of law as framed by the brother Judge, Dr. Sidhu J., at that time.
12. The formal addition of the names of the transferees may be made by the office now and as Shri Soral has already appeared the case need not be adjourned for that purpose.
13. Before I proceed to discuss the merits of this appeal, it may be mentioned that the first Appellate court has reversed the finding on issue No, 2 & 6 which were in favour of the plaintiff and held that in view of the sale of the premises by the plaintiff to other persons, the plaintiff has got no subsisting bonafide need of the premises for her own house. The first appellate court, therefore, concentrated on issues No. 3 & 5 which relate to the rent and default of payment of rent and held that the defendant is defaulter. On the above premises, the appeal was dismissed & the decree passed by the trial court was confirmed.
14. In addition to the decree of eviction, the trial court also pay a decree on rent for Rs. 640/- and damages for occupation and use of premises in dispute at the rate of Rs. 20/- per month from the date of the suit-to the date of getting possession.
15. Shri Soral, the learned Advocate, during the course of the arguments, has informed the Court that the decree of arrears of rent of Rs. 640/- passed by the trial court would not be enforced by his client and, therefore, this undertaking may be taken on record.
16. Now, the submission of Shri Prem Nidhi, the learned Counsel for the appellant is that since admittedly, the premises have b~ en sold by the plaintiff vendor during the pendency of the first appeal and no right to evict the tenant on the basis of the decree has been transferred to the transferee and, therefore, eviction. It was also emphatically argued that even the right to recover the decretal rent has not been transferred. In this connection, Shri Prem Nidhi read over sale deed a copy of which has been produced on record by Shri Soral and, pointed out that there was complete absence of mention of right to recover the arrears of rent or right to execute the decree of eviction in favour of the plaintiff-vendor or transferee.
17. Shri Soral, on the contrary, read over the following portion of the sale deed and on that premises, argued that all rights of the plaintiff-vendor stands transferred to the transferees.
tks gd gd`d o gd vkjk;’k eq> ok;k dks izkIr dh vkgUnk eq[rfj;ku dks izkIr gksxs vkSj feRry esjs eq[rhfj;ku dkfct o nkf[ky jg dj vius rgr \crl:[k es ykosxs A
18. The controversy between the parties is that, whereas, according to the appellant, this means that easement-airy rights only were transferred, the transferees respondents want it to interpret, that all those rights which the plaintiff-vendor had on the date of sale were transferred in respect of the properties to the transferees-vendees.
19. I would deal with this important aspect of the case, a little later, because this covenant in the sale seed will have to be interpreted by discussing the relevant law and expression of any piecemeal opinion at this juncture, would not be in the interest of justice, as it may result in prejudging the matter.
20. Shri Prem Nidhi has relied upon the important observation of the apex court in M.M. Quasim v. Manoharlal . The relevant observations read as under:
If on examining and evaluating the contents of the certified copy of the decree in partition suit No 4/74 it is established conclusively that the property has been exclusively allotted to Pyarelal who has not applied to be joined as party to these proceedings though he has filed some affidavit in this appeal before this Court and if no reservation is made in the decree for continuation of the proceedings for recovering possession on the ground of non-payment of rent in favour of the present respondents nor have the present respondents undertaken any liability to continue the proceedings on behalf of Pyarelal Sharma for the limited purpose of recovery of rent, in our opinion it would be extremely doubtful if the respondent can still maintain the action for recovering rent and for possession on the grounds mentioned in Section 11(1)(c) and (d). That aspect has not at all been examined either by the first appellate court or by the High Court. If ‘A’, a landlord commences action for eviction against his tenant on the only ground of nonpayment of rent and during the pendency of the proceedings transfers the property lock stock and barrel to a third person and if the third person is not before the Court, without finally expressing any opinion because the remand is contemplated, it is just unthinkable that such a landlord can continue the suit even after he had no interest in the property. The aspect may have to be examined in the background of the contract between the landlord who commenced the action and his transferee, or the transferee having reserved some right came to the court for being impleaded as a party to continue the action and his right to continue, may be examined. These aspects are not examined by any Court though decision on them goes to the root of the matter. Therefore, a remand is inevitable in the circumstances ofthis case.
21. The crucial important features of the above observations are that, there was a decree in partition suit and the property was allotted to one Pyarelal.
(b) this Pyarelal never applied to be joined as party.
(c) no reservation was made in the decree for partition for continuation of the proceedings for recovery of possession on the ground of non-payment of rent in favour of respondents in that case or in favour of Pyarelal.
(d) in the decree of partition, the judgment debtor-respondent never undertook a liability to contiune the proceedings on behalf of Pyarelal
22. On the above premises, it was held by the Apex Court that it would be extremely doubtful if the respondent can still maintain the action for recovering rent and fore possession on, the grounds mentioned in Section 11(1)(c) and (d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947)
23. It would be further seen from the above observations that, the Apex Court emphasized that the third person was not before the Court and, therefore the old landlord-vendor who se interest has ceased to exist for the transfer, may not be able to continue the suit. Their Lordships, of course, were cautions enough not to express any opinion on this point, and left it open to be decided by the lower court where the suit was remanded. One of the question in remand was, whether the partition decree transfers the suit shop to Pyarelal Sharma exclusively. Second one was, whether the respondents (Plaintiffs) can maintain the action and are entitled to evict the appellant (defendant) on the ground of personal requirement of Manoharlal Sharma (respondent No. 1) and/or on the ground of default as contemplated by Section 11(1)(d) of the Bihar Rent Control Act.
24. It would thus be seen that the Apex court has not given any final decision on the right of transferee to continue the eviction proceedings commenced by the transfer vendor plaintiff against the tenant-defendant.
25. Undoubtedly, for emphasis of language, the Apex Court has used the word “unthinkable” and, it is superlative in terms but, the have, in a very guarded manner, watered it down by mentioning two three-preconditions and saying it doubtful. Above all the most important feature which distinguishes the present case from the above decision of the Apex Court is that there the transferees did not pray for joining as parties and were not before the court but in the instant case, the transferees are not only very much before this Court right from the time of the admission of this second appeal but, further have moved an application and have joined the issues and argued the appeal right from the time of the admission, where they were allowed to appear through Shri D.K. Sorai, Advocate. Thereafter, they moved the application for being joined as parties in the case on 8th February, 1983 and consequently they were heard on merits of the appeal on 17th February, 1983 and onwards and finally they have become parties of this appeal on account of my above order. These features peculiar to the present case have nude word of difference and, therefore, apart from the fact that the Apex Court has not given any tine decision in this matter so far, even on the assumption that, even stray observation of the Apex Court are to be respected, the present case is distinguishable on facts.
26. Shri Prem Nidhi for the appellant has also invited my attention to the proviso to Section 109 of the Transfer of Property Act, 1882 (Act IV of 1882) which reads as under:
109. Rights of lessor’s transferee. – If the lessor transfers the property leased, or any part thereof, or any part of his interest there to, the transferee, in the absence or 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; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him.
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that if the lessee, not having reason to believe that such transfer has been made, pays rant to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property lease.
28. Making the proviso as bedrock, Shri Prem Nidhi submitted that wince the amount of rent due before the date of the transfer is not to be treated as transfer to the transferee. In view of this, Shri Prem Nidhi submitted that normally doctrine of law that, transferee steps in the “shoes of the transferor is not applicable so far, it is covered by the proviso and the proviso is an exception. It was probably on account of this proviso that Shri Sorai volunteered not to enforce the decree in respect of payment of arrears of sent.
29. Two questions, therefore, arise in this case-
(i) Whether while enforcing the decree for possession based on the ground of default, the transferees are acting against the proviso to Section 109 of the Transfer of Property Act, 1882?
(ii) Whether the proviso acts as a complete bar or, it is subject to the covenants of the sale deed?
30. It would be relevant at this stage the consider the submission of Shri Soral on this aspect of the case.
31. Shri Soral has placed reliance upon the enreported decision of the Apex Court in Ramchander Narsey & Co. v. Wamanrao Shenoy Civil Appeal No. 361 of 1966, decided on 13.3.1969. According to Shri Soral, the consistent view of this Court is that the transferor-landlord can take advantage of right to recover the arrears of rent and decree for eviction. Reliance, has also been placed upon by him the decisions of this Court Chandrasen v. Murarilal 1976 RLW 190, Naraindas v. Rajendra Singh 1972 RLW 100 and Ratan Lal v. Ghasilal 1974 WLN (UC) 369 Jahangir Khan v. Govt. of United State of Rajasthan .
32. Shri Soral also relied upon the decision of Apex Court in Saila Bala v. Nirmala Sundari (supra) and Shew Bux Mohata v. Bengal Breweries (supra) in this respect.
33. In Rajanlal v. Ghasilal (supra), C.M. Lodha J., as he then was, held that the default committed in the payment of rent in respect of first landlord does not cease to be a default when the previous landlord transfers the property.
34. A Division Bench of this Court in Jahangir Khan v. Govt, of United State of Rajasthan (supra) observed and held that “during the pendency of a suit for injunction against A and the State Govt., for restraining them from dispossessing the plaintiff from certain property, A died. The J plaintiff alleging himself to be the only legal representative of X applied to J the court for striking off A’s name from the record. Before his death A had assigned the suit property to a third person. The assignee applied under Order 22, Rule 10 for subsitution of his name. The Court however rejected the application and decreed the suit. The assignee had not appealed against the order rejecting his applicant but appealed against the decree and applied to the appellate court for substitution of his name under Order 22, Rule 10. Held, that both the appeal and the application were maintainable.
35. In Naraindas v. Rajendrao Singh (supra) C.M. Lodha J., as he then was, held that, under the Rajasthan Premises (Control of Rent and Eviction) Act, a transferee landlord can take advantage of default in payment of rent of previous landlord. The relevant observations are as follows;
I may now consider the relevant provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 by which the present case is governed, Section 3(iii) defines ‘landlord’ as below:
3(iii) ‘landlord’ means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether [ on his own account or as an agent, trustee, guardian or receiver for any other person, or who would so receive or be entitled to receive the rent of the premises were let to a tenant; it includes a tenant in relation to a sub-tenant;
Section 13 inter alia provides as follows:
Section 13 Eviction of tenants : (1) Not with standing anything contained in any law or contract, no court shall pass any decree, or make any order in favour of a landlord, whether in execution of a decree or otherwise evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied:
(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months.
A plain reading of Section 13(1)(a) goes to show that no tenant is entitled to the protection unless he pay the rent due from him at the time prescribed in the Act. It does not provide that the landlord for the time being alone is entitled to recover possession if the rent is not paid. The definition of ‘landlord’ as extracted above makes the position abundantly clear. It lays down that ‘landlord’ means any person who for the time being is receiving or is entitled to receive the rent of any premises. Reading both the provisions together it is manifest that in order to be able to grant protection to the tenant against ejectment the Court must be satisfied that the tenant had paid the amount of rent which was due to him, as contemplated by Section 13(1)(a). It is not a question of transfer of benefit of default by the previous landlord to his successor but of the tenant claiming protection under the Act. In this view of the matter if the Court is satisfied that the tenant has neither paid not tendered the amount of rent due from him to the previous landlord who was entitled to receive the rent, he will be deemed to have incurred the liability to be ejected and would not be entitled to protection under the Act, irrespective of the fact that the premises along with the arrears of rent have been transferred by the previous landlord. Of course, it is not the defendant’s case that the previous landlord had waived such default.
36. In Chandrasen v. Murarilal (supra) S.N. Modi J., as he then was reiterated the view of C.M. Lodha J., and observed as under;
The question, therefore, whether the arrears of rent have been transferred or nor, is of no consequence unless of course the defendant’s case was that the previous landlord and waived such default in absence of such a defence, the transferee landlord can take advantage of the default committed by the tenant in payment of rent due from him to the previous landlord for bringing his case within the ambit of Section 13(1)(a) of the Act.
37. It would thus be seen that so far as this Court is concerned, the consistent view is that under the Rajasthan Premises (Control of Rent & Eviction) Act, the transferee-landlord can take advantage of the default committed by the tenant during the period of earlier transferor-landlord, and this is irrespective of the fact, whether the transferee has the right to recover the earlier arrears of rent or not.
38. Now Shri Soral also placed reliance upon the decision of Sail Bala’s case (supra) in which it was held that, as a purchaser pendente lite, a person will be bound by the proceedings taken by the party in whose favour the decree is passed in execution of her decree, and just requires that she should be given an opportunity to protect her rights.
39. I have not been able to appreciate much relevancy of the principles lain down in the above decision, in the instant case, here, because, the purchaser is not judgment debtor but, he wants to enjoy the rights of the decree holder.
40. My attention was also invited by Shri Soral to the decision of the Apex court in Shew Bux Mohata v. Bengal Breweries (supra). in which it was held that the subject matter of appeal was mortgaged by the judgment debtor and, the mortgagee after obtaining the mortgage deed executed, and the executing the same subsequent to filing of execution appeal in Supreme Court, the auction purchaser can be brought on record of appeal before the Supreme Court.
41. What was held in this case was that, the appeal is a proceeding within the meaning of Section 146 of the Code of Civil Procedure, 1908 and the right to file an appeal carried with it the right to continue an appeal which had been filed by the person under whom the appellant claimed and on this basis a purchaser from the appellant under a purchase made prior to the appeal was brought on the record of the appeal. This was the principle of Soil Bala Dass’s case (supra) which was followed in Shew Bux’s case (supra).
42. Shri Soral also referred an unreported decision of the Apex Court in Ramchander Narsey (supra).
43. In this case, during the pendency of the suit respondent No. 1 sold his property to respondent No. 2 who was thereafter impleaded in the suit as supplement and second plaintiff. The suit was for eviction against the tenant and the original notice was issued for eviction on account of default by the respondent No. 1. Point No. 3 decided in this case is relevant wherein similar arguments as made by Shri Prem Nidhi were considered.
44. The relevant observations made in Ramchander Narsey (Supra) read as under:
Herein admittedly, on the date the suit was instituted, there was a valid cause of action for evicting the appellant. What the court has to consider in every case is whether the suit was validly instituted. If a suit in validly instituted a decree must necessarily follow, unless the law prescribes otherwise. Undoubtedly, the present suit is based on a valid cause of action. Therefore all that we have to see is whether any subsequent event has happened necessitating the denial of the relief asked for. Paying or tendering the money under Section 12(3)(b) is merely a concession granted to the tenant. He may avail of that concession or he may not avail of it. If he avails of that concession then the relief of ejectment asked for will not be granted though the landlord will ordinarily be entitled to the costs of the suit. There is no denying the fact that at the time the suit was instituted, the 1st respondent was the ‘landlord’ as defined in the Act and at the time the decree came to be made, the 2nd plaintiff was the ‘landlord’. The deed of assignment has not been printed. Therefore, we do not know its terms. We have to proceed on the basis that the 1st respondent had assigned all his rights, title and interest in the suit premises to the 2nd plaintiff. We must assume that in particular he had also assigned his right in the decree that may be passed in the suit. Learned counsel for the respondents referred to us in this connection the decision of the Calcutta High Court in Kanto M. Mullick v. Jyotish Chandra Mukherjee 49 C.W.N. 433. Undoubtedly that decision supports the contention of the respondent but it is not necessary for us to rest our decision on the basis of the rule laid down in that case.
45. Undoubtedly, the principles laid down in the above decision of Ramchander’s case (supra) support the contention of Shri Soral.
46. On a careful study of the principles laid down in all the above decisions, I am convinced that the transferees respondent Nos. 1, 2, & 3 are entitled to enjoy the benefit of an ejectment decree and further, entitled to defend the ejectment decree in appellate court having stepped in the shoes of transferor-plaintiff respondent.
47. I am further convinced that the principles laid down in MM. Quashim v. Manoharlal (supra), in no way disentitles the transferees, the respondents before this Court to execute the decree and, further, in no case, disentitles to defend this appeal as respondent and step in the shoes of transferor plaintiff who were earlier to the transfer landlord-plaintiff in this present case.
48. In view of the above deduction in respect of state of law, as it exists about the rent control legislation, it is not necessary to examine, whether by the sale deed, the plaintiff transferor transferred the right to recover the earlier rent or to continue legal proceedings or to take the benefit of the ejectment decree. It would be sufficient to mention that covenant in the sale deed are comprehensive enough and all legal rights which were in existence in favour of the transferor landlord-plaintiff have been continued to the transferees namely, Arjunsingh, Balveer Singh and Brijendra Singh which is obvious from the following covenant-
tks gd gdwd o gd vk’k;kW’k eq> ok;k dks izkIr Fks Avk;Unk eq[krfjeku dks izkIr gksxsA vkSj fely esjs eq[krfjeku dkfct o nkf[ky jg dj vius rgr o rl:Q es ykosxs A
49. It would be unfair to interpret the above to mean that only the easementary rights were transferred. The words are comprehensive enough and I am of the view that all the legal rights of the transferor were transferred to the transferees.
50. In view of the above the privision of Section 109 of the Transfer of Property Act, as relied upon by Shri Prem Nidhi cannot held his client in avoiding decree of eviction. It may be pointed out that the proviso is to main clause of Section 109 of the T.P. Act and the main clause expressly mentions that in the absence of the contract to the contrary, the general rule carved out by the main clause of Section 109 that in the absence of the contract to the contrary when a lessor transfer, the property leased or in part thereof, the transferees shall possess all the rights. Exceptions provided by the proviso was that if the lessee not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
51. It was in this context that it was provided that the transferee is not entitled to arrears of rent due before the transfer. Obviously, it was for safeguarding rights of the lessee for the payment made to the earlier landlord for the period before the date of the transfer bonafide without knowing the transfer.
52. In the instant case, firstly, there is no dispute about the right to realise arrears of rent because Shri Soral in order to cut the “Gordian knot of protected litigation and to avoid the risk is outcome of this appeal has volunteered not to enforce the decree in respect of arrears of rent and, therefore, 1 am not required to adjudicate the question, whether those arrears should be paid to the transferees. Secondly, the covenant in the sale-deed which has been relied upon by Shri Piem Nidhi as well as Shri Soral, though for different purpose and for different interpretation goes to show that all the rights of landlord lessor vendor were transferred to the vendee transferees, namely, Arjun Singh, Balveersingh and Brijendrasingh. In this view of the matter, so far as the question of eviction on the basis of default is concerned, there is no doubt that the three transferees respondents represented by Shri Soral are entitled to defend this appeal and further execute the decree of eviction against the appellant tenant.
53. So far as the merits of the appeal is concerned, except the above point, which I have discussed and decided, no other point was raised argued and pressed before this Court by Shri Prem Nidhi Agrawal, the learned Counsel for the appellant and rightly so, because the defence against the eviction had been struck off and there was no doubt that, there was default in payment of rent which entitled the plaintiff to obtain a decree of eviction under Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act.
54. Consequently, this appeal is dismissed with the slight modification that, so far as the arrears of rent decreed by the trial court is concerned, the decree to that extent would not be enforceable by the transferees in view of their voluntarily relinquishment. However, in all other respects, the decree of trial court is upheld and the respondents transferees, namely Arjunsingh, Balveersingh and Brijendra Singh would be entitled to execute the decree of eviction and so also they would be entitled to recover the amount of damages for use and occupation at the rate of Rs. 20/-(Rupees twenty only) from 16th April, 1952 upto the date of taking over possession of the property in dispute.
55. While the appeal is being dismissed, as indicated above, I would leave the parties to bear their own costs.
