SBC SECOND APPEAL NO.107/1991 -NARESH CHAND V/S SMT. PREMLATA BAKSHI : JUDGMENT DTD. 20.1.2009
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
S.B. CIVIL SECOND APPEAL NO.107/1991
Naresh Chand S/O Sh. Surajmal
versus
Smt. Premlata Bakshi W/o Sh. Mangal Singh
PRESENT
HON'BLE Dr.JUSTICE VINEET KOTHARI
Mr.R.K. Thanvi, for the appellant
Mr.Sajjan Singh, }for the respondent.
Mr.B.K.Bhatnagar, }
REPORTABLE
DATE OF JUDGMENT : 20th January, 2009.
JUDGMENT
1. This second appeal of the defendant – tenant pending for last
18 years in this Court was admitted on the following substantial
question of law framed by this Court on 6.9.1991:
“Can the dead-man’s personal necessity be a ground for
ejectment?”
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2. The plaintiff Smt. Premlata Bakshi W/O Sh. Mangal Singh
Bakshi, who expired before filing of the second appeal by the
defendant filed the eviction suit against the defendant – appellant in
the year 1981 on the ground of personal bonafide necessity of her
husband and son who was engaged as Inspector in the National
Insurance Company in respect of residential house situated at 24,
Chitragupt Marg, Udaipur, which was let out under an oral agreement
to the defenadnt on 15.3.1969 for a sum of Rs.80/- per month as rent.
The bonafide need of the landlord was claimed on the ground that
her son is getting married on 1.7.1979 and after retirement of her
husband, he intends to work as property valuer and consultant
Engineer, therefore, the suit property i.e. the said residential house
would be required for residential and business need of the family
members.
3. After recording the evidence, the learned trial Court granted
partial eviction decree on 9.1.1985 directing eviction of the
defendant from the room including latrine bathroom situated at the
ground floor. The plaintiff filed first appeal against the said partial
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eviction decree before the first appellate Court of Additional Civil
Judge No.3, Udaipur which came to be allowed on 10.7.1991 and
instead of partial eviction, the appellate Court granted eviction decree
of the entire premises in favour of the plaintiff. The defendant does
not appear to have filed any cross-appeal against the partial eviction
decree by the learned trial Court.
4. The present second appeal was filed by the defendant – tenant
in this Court on 5.9.1991 and as already stated above was admitted on
a limited substantial question of law as quoted above on 6.9.1991 and
interim order against dispossession was also granted in favour of the
defendant on 6.9.1991 which has continued throughout. The
defendant – appellant has filed an application under Order 41 Rule 27
C.P.C. in this Court on 14.3.2000 with the averment that the plaintiff
had sold the said suit property on 15.9.1999 to one Shanti Lal S/O Sh.
Nemi Chand Chittora of which a registered notice was sent to the
defendant Naresh Chand by the plaintiff on 26.1.2000 as well as by
the purchaser through his advocate on 2.2.2000. Copies of these
documents are also placed on record along with said application
under Order 41 Rule 27 C.P.C.
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5. Mr. R.K. Thanvi, learned counsel for the appellant – defendant
urged that since the property in question has already been sold,
therefore, the defendant cannot be now evicted from the suit premises
as the personal need of erstwhile owner – plaintiff no more exists. He
relied upon the following judgments in support of his submissions:
1) Preetam Singh V/s Narendra Kumar and ors. – 1998
DNJ (Raj.) 293.
2) Sheikh Jehangir V/s Smt. S. Kaushilyabai and ors. –
1987 (Supp.) SCC 630.
3) Rakesh Gupta V/s Ahmed Farooq – 1992(2) RLW 398.
6. Mr. Sajjan Singh and Mr.B.K.Bhatnagar, the learned counsel
for the respondent – plaintiff on the other hand opposed these
submissions and relied upon following judgments in support of his
submissions:
1) Dharam Chand V/s Karam Chand – 2001(3) RLR 713
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2) Mahendra Raghunathdas Gupta V/s Vishvanath
Bhikaji Mogul and ors. – 1997(2) Apex Court Journal 10
(S.C.).
3) Ram Saran Sharma V/s Smt. Kamla Acharya – 2001(2)
WLC (Raj.) 565.
7. I have heard the learned counsels at length and given my
thoughtful consideration to the rival submissions and judgments cited
at the Bar and record of the case.
8. At the outset, the application under Order 41 Rule 27 C.P.C.
bringing on record the fact that the suit property in question was sold
by the plaintiff on 15.9.1999 during the pendency of this second
appeal before this Court deserves to be allowed and the same is
hereby allowed and the documents placed on record therewith are
liable to be considered by this Court.
9. Law about entertaining second appeal on substantial question
of law under Section 100 C.P.C. is now well settled and by catena of
judgments, it is well settled that the findings of fact about the
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personal bonafide necessity of the landlord do not give rise to any
substantial question of law unless the said findings are perverse and
based on no relevant evidence at all. It is also equally well settled
that bonafide need of the landlord as on the date of filing of the suit
for eviction is to be considered by the Court and it is also equally well
settled that question of title is irrelevant in the eviction proceedings
under the Rent Control Act.
10. Since bonafide need was claimed by the landlord – plaintiff for
her husband as well as her son as stated above on the date of filing of
the suit and the Courts below concurrently found that the said
bonafide need existed on the date of filing suit and while the trial
Court granted the decree for partial eviction, the first appellate Court
granted the decree of entire residential house in question, the said
findings of facts which are based on relevant evidence and material
did not deserve to be disturbed at all and the second appeal was liable
to be dismissed at the threshold as no substantial question of law
could be said to be arising in the present appeal. However, the fact
remains that since this appeal came to be admitted by this Court by
framing the aforesaid question of law and which remained pending
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here for long number of 18 years in this Court, subsequent
developments in the form of death of husband of the plaintiff and sale
of property by her arose. The question which arises now in these
circumstances for consideration by this Court in the changed
circumstances is as to whether now the purchaser of the suit property
can get fruits of the decree passed by the Courts below and can get
the suit premises evicted or not or whether the defendant – tenant
should be allowed to remain in the property for next 20 to 30 years
after the new purchaser of the property is asked to file a fresh suit
establishing his own bonafide need of the said suit property or on
other grounds of eviction as as specified in the Rent Control Act.
11. A perusal of the sale-deed produced along with the application
under Order 41 Rule 27 C.P.C. shows that the said property was sold
by the plaintiff to the purchaser with clear stipulation that the said
property is in possession of the tenant since 15.3.1969 and therefore,
the vacant possession cannot be handed over to the purchaser and
only symbolic possession is being handed over and the purchaser will
be treated to be in possession of the property in the same manner in
which the plaintiff was. This was para 5 of the sale-deed and para 10
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of the sale-deed also states that the eviction decree in respect of said
suit property has already been passed by the first appellate Court
against which the defendant has filed second appeal before High
Court. Para 3 of the sale-deed also stipulates that the seller is
transferring all her rights in the suit property including the
easementary rights to the purchaser. Thus, the right of the plaintiff
which vested in her including the right to get the vacant possession of
the suit property stood vested in the purchaser on the date of sale i.e.
15.3.1999 and the purchaser stepped into her shoes entitled to all the
rights and fruits to enjoy the said property thereafter.
12. It is not in dispute that the defendant – appellant in full know of
this sale of property through the notice served upon him in the year
2000 which are placed by the appellant along with the application
under Order 41 Rule 27 C.P.C., did not take any steps to implead the
purchaser of the property as party in the present second appeal though
this development took place during the pendency of this appeal.
Therefore, the purchaser of the property naturally could not have any
say in this litigation. This Court is of the opinion that it was
incumbent upon the appellant to implead the purchaser of the
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property as respondent after coming to know of the sale of the
property to him and in absence of the same, adverse inference against
the appellant – defendant deserves to be drawn. Naturally after sale of
the property, the plaintiff or original owner lost her interest in
pursuing this litigation in this Court, which could have been pursued
by the new purchaser and the owner of the property only if he had
been impleaded as respondent at the instance of appellant –
defendant. The question is, therefore, whether the defendant – tenant
can be allowed to enjoy this property for all times to come at a
nominal rent of Rs.80 per month which also it is not known whether
he is paying to the new landlord of the property or not. It has been
held by the Hon’ble Supreme Court in the case of Mahendra
Raghunathdas Gupta (supra) that attornment by the tenant is not
necessary upon transfer of landlord’s right and it is automatic. In
para 5 and 6 of the said judgment, the Hon’ble Supreme Court has
held as under:
“5……… It is well settled that a transferee of the
landlord’s right steps into the shoes of the landlord
with all the rights and liabilities of the transferor
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landlord in respect of the subsisting tenancy. The
section does not require that the transfer of the right of
the landlord can take effect only if the tenant’s attorn to
him. Attornment by the tenant is not necessary to
confer validity of the transfer of the landlord’s rights.
Since attornment by the tenant is not required, a notice
under Section 106 in terms of the old terms of lease by
the transferor landlord would be proper and so also the
suit for ejectment.
6. Attornment would, however, be desirable as it
means the acknowledgement of relation of a tenant to a
new landlord. It also implies continuity of tenancy.”
13. This Court in the case of Ram Saran Sharma (supra)
has also held that upon transfer of property through gift and where
the tenant was served with a notice intimating the fact of gift, the
plaintiff was vested with all rights of original landlord and was
entitled to evict the tenant. In para 17 of the said judgment, this
Court has held as under:
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“Section 109 of the Act of 1882, it is held that Section
109 of the said Act does not require service of notice on
the tenant, or alienation of property, to create
relationship of landlord and tenant between the
transferee landlord and the existing tenant. The
transferee of the lessor steps into the shoes and possess
all the rights which the transferor has and the
attornment is not a condition precedent, to give validity
to the transfer made in favour of the transferee. Section 2
of the Act of 1882 specifically provided that a transfer of
property interests, which the transferor is capable of
passing in the property, including the legal incidents
thereof and such incidents include the rents and profits
thereof. Once the title of the assignee is complete, the
attornment is automatic not dependent on the tenant’s
attorning or agreeing to the attornment.”
14. In the case of Dharam Chand V/s Karam Chand (supra) this
Court also held referring to decision of Hon’ble Supreme Court in the
case of Gaya Prasad V/s Pradeep Srivastava reported in (2001) 2
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SCC 604 that it would be pernicious and unjust to shut the door
before an applicant just on the eve of litigation reaching final stage
merely on the ground that certain development occurred pendente lite
because the opposite party succeeds in prolonging the matter for such
unduly long period. Para 5 of the said judgment quoted below for
ready reference:
“5. Admittedly the plaintiff instituted the suit for eviction
on April 22,1982. The plaintiff could not see the final
result of the litigation in his life time and died on
January 21, 2000 during the pendency of this second
appeal. Their Lordships of the Supreme Court in Gaya
Prasad V/s Pradee Srivastava (2001) 2 SCC 604 had
occasion to consider the similar situation. It was urged
on behalf of the tenant before the Hon’ble Supreme Court
to take into account the subsequent events. Dismissing
the appeal the Hon’ble Supreme Court indicated that
the crucial date for deciding the bonafides of the
requirements of the landlord is the date of his
application for eviction. The antecedent days may
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perhaps have utility for him to reach the said crucial date
of consideration. If every subsequent development
during the post-petition period is to be taken into account
for judging the bonafides of the requirement pleaded by
the landlord there would perhaps be no end so long as
the unfortunate situation in the litigative slow process
subsists. During 23 years, after the landlord moved for
eviction on the ground that his son needed the building,
neither the landlord nor his son is expected to remain
idle without doing any work, lest joining any new
assignment or starting any new work would be at the
perils of forfeiting his requirement to occupy the
building. It is a stark reality that the longer is the life of
the litigation the more would be the number of
developments sprouting up during the long
interregnums. It would be pernicious and unjust to shut
the door before an applicant just on the eve of his
reaching the finale, after passing through all the previous
levels of the litigation merely on the ground that certain
developments occurred pendencte lite, because the
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opposite party succeeds in prolonging the matter for such
unduly long period.”
15. This Court in the case of Ratan Lal V/s Brij Mohan –
S.B. Civil Second Appeal No.319/2009 decided on 7.11.2008 held as
under:
“6. …………After death of elder son Dinesh on
1.11.1996, the bonafide need which was claimed for
elder son Dinesh should be deemed to continue for his
widow and grand-son. Such subsequent event could
definitely be taken into account by the first appellate
Court while deciding the appeal. Even the trial Court
while returning its findings on 3.11.2006 was very well
aware of these facts, still the learned trial Court found
that the plaintiff failed to establish his bonafide need
upon death of sons of plaintiff landlord Brij Mohan. The
bonafide need of the plaintiff – respondent in the present
case could not be said to be mere whims and desire of
the landlord, but bonafide need further aggravated on
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the death of sons of the landlord. It is indeed unfortunate
that the learned trial Court instead of appreciating these
facts in correct perspective………..”
16. In a recent decision in the case of LRs. of Smt. Bilam Kanwar
V/s Pushp Chand – S.B. Civil Second Appeal No.110/2005 decided
on 17.1.2009 , this Court again held in para 5 as under:
“5…………..It was not in dispute before the learned trial
Court that after death of her son plaintiff Bilam Kanwar
sought to add grounds for eviction of personal bonafide
necessity for the business of her grand-son Gautam, who
was 10th class pass. There was no evidence on record to
show that the plaintiff – respondent had any alternative
shop or was in possession of so called shop situated at
Ada Bazar, Jodhpur. The fact that the said grand-son
Gautam was carrying on the business in a shop owned by
one Bhagat Singh Surana in a small shop of 6ft x 6ft
was proved and could not be controverted before the
learned trial Court……
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6. In the case of Ragavendra Kumar V/s Firm Prem
Machinery and Co. reported in (2000) 1 SCC 679, the
Hon’ble Apex Court held that it is settled position of law
that the landlord is the best judge of his own
requirement for residential or business purposes and has
complete freedom in the matter and therefore, the
appellant landlord stating in evidence that he owned
several other shops and houses, but they were not vacant
and also that the suit premises were suitable for the
proposed business, the Hon’ble Apex Court granted
eviction decree and dismissed the tenant’s appeal.”
17. The Hon’ble Supreme Court in the case of Sheikh Jehangir V/s
Smt. S. Kaushilyabai and ors (supra) in view of clear inhibition
contained in Section 10(3)(iii) of the A.P. Buildings (Lease, Rent and
Eviction) Control Act, 1960 held that in view of clear inhibition in the
said provisions against institution of a suit by a purchaser on the
ground of bonafide personal necessity for a period of three months
from the date of purchase, therefore, the suit could not be brought by
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the purchaser till the expiry of the said period calculated from the date
of sale-deed. The Supreme Court therefore held that the suit for
eviction was liable to be withdrawn with a liberty to the purchaser to
file a fresh suit. This judgment relied upon by the counsel for the
defendant – appellant clearly is distinguishable and turns upon the
specific provisions in A.P. Act prohibiting the purchaser to institute a
suit within 3 months from the date of purchase of the said property.
There is no such provision in Rajasthan Rent Control Act, 1950.
Therefore, the said judgment relied upon by the learned counsel for
the appellant is of no help.
18. Similarly, the judgment in the case of Preetam Singh
V/s Narendra Singh, this Court dealing with the issue in revisional
jurisdiction held that where the plaintiff had sold out the demise
premises, the purchaser should establish his own bonafide need and
therefore, had right to be impleaded under Order 22 Rule 10 C.P.C.
in the suit filed by the erstwhile owner. The Court further observed
that the purchaser could not evict the tenant on the bonafide need of
the erstwhile owner and therefore, was liable to be impleaded and
the revision petition filed by the defendant was dismissed. This case
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is also distinguishable inasmuch as this Court only allowed the new
purchaser to join the litigation at the trial stage under Order 22 Rule
10 C.P.C. This case supports the conclusion drawn by this Court that
purchaser steps into the shoes of the existing landlord – plaintiff and
could be allowed to have fruits of the said decree as property rights
including the right of vacant possession of the suit property stood
transferred under the sale-deed.
19. Therefore, this Court is of the opinion that not only the
question framed by this Court while admitting the present appeal
deserves to be answered against the appellant – defendant by holding
that the bonafide need of the plaintiff continues even after death of
her husband as the bonafide need was claimed for her husband as
well as her son and it deserves to be further held that the purchaser of
the suit property during the pendency of present second appeal who
steps into the shoes of the plaintiff shall be entitled to vacant
possession of the suit property in pursuance of the decree passed by
two Courts below which is liable to be upheld by this Court as no
perversity in those findings is found by this Court. In view of the fact
that the bonafide need of the plaintiff – landlord on the date of filing
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of the suit is relevant, subsequent events in the form of sale of said
property does not ipso facto up-set the decree of eviction. The
attornment in favour of purchaser was automatic and did not depend
upon the acceptance of the same by the defendant – tenant. The
appellant – defendant is, therefore, not entitled to any relief in the
present second appeal, which is found to be devoid of merit and the
same is accordingly dismissed with no order as to costs.
20. The appellant – defendant shall handover vacant and peaceful
possession of the suit house in question to the purchaser, the new
landlord within a period of two months from today. The appellant –
defendant shall also pay arrears of rent and mesne profits if any
within two months and further enhanced mesne profit of Rs.1000/-
per month to him with effect from January, 2009 payable every month
before 15th of succeeding month till the actual handing over of the
vacant and peaceful possession of the suit property to the landlord
Shanti Lal Chittora. The decree be made accordingly. If the appellant
– defendant fails to handover vacant and peaceful possession of the
suit house in question to him within a period of two months from
today as aforesaid or fails to pay mesne profit including the arrears of
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rent and mesne profit as directed above, the landlord shall not only
be entitled to seek execution of the decree in normal course, but the
appellant – defendant may also render himself liable for action under
the contempt law. Copy of this judgment may be sent to the parties as
well as the purchaser or attorned landlord Shanti Lal Chittora at his
address given in sale-deed i.e. 92, Mandi Ki Nal, Udaipur,
immediately.
(Dr.VINEET KOTHARI)J.
Ss/-