JUDGMENT
S.B. Sinha, J.
1. This Second Appeal out of a judgment and decree dated 24-9-1979 passed by Shree Prabhat Kumar Sinha, First Additional Subordinate Judge, Hazaribagh in Title Appeal No. 39/3 of 1979/79, whereby and whereunder the said learned Court reversed the judgment and decree dated 13-4-1979 passed by Shree Uma Shanker Prasad in Title Suit No. 1 of 1978 dismissing the plaintiff-respondents’ suit.
2. By an order dated 5-2-1981 the following substantial question of law was formulated.–
Whether the defendant-appellant was a defaulter within the meaning of Section 12(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 and liable to be evicted from the suit premises?
3. Mr. B.K. Dey, learned Counsel appearing on behalf of the appellant, sought permission to raise another substantial question of law in this Second Appeal which is in the following terms:
Whether the judgment passed by the learned lower appellate Court while reversing the judgment and decree passed by the learned trial Court committed a serious error of law as it while doing so did not assign any cogent reason so far as the issue relating to relationship of landlord and tenant?
4. Having heard the learned Counsel for the parties and in view of the peculiar facts and the circumstances of this case and regard being had to the nature thereof, I allowed him to raise the aforementioned question.
5. Bereft of all unnecessary details, the facts of the matter are as follows:
The plaintiff respondent purchased the property in suit by a registered deed of sale dated 15-5-1976 from Mst. Madina Khatoon. It is admitted that the defendant had all along been paying the stipulated monthly rent to the aforementioned Madina Khatoon.
6. It is also admitted that the defendant was given notice about the purchase of the property in suit by the plaintiff. Upon receipt of the said notice, the defendant enquired the name of the purchaser which was also disclosed to him. Thereafter the defendant wanted to peruse a copy of the deed of sale dated 15-5-1975 which was also supplied to him. The defendant thus satisfying himself about the bona fide of the said transaction paid the stipulated monthly rent to the plaintiff upto June, 1977.
7. The learned trial Court dismissed the suit of the plaintiff, inter alia, on the ground that so far as Bibi Madina Khatoon is concerned, she was digested of her interest in the property as allegedly in a partition suit amongst the co-sharer landlords the property in suit was not allotted to in her favour The learned lower appellate Court, however, found that in view of the fact that the defendant had been tendering the stipulated monthly rental to the predecessor-in-interest of the plaintiff and as mentioned hereinbefore the defendant paid rent to the plaintiff himself upto June, 1977 there existed relationship of landlord and tenant by and between the plaintiff and the defendant.
8. With regard to the question of default, the learned lower appellate Court relied upon a Division Bench decision of this Court in Rajendra Mohan v. Smt Kamhalia Devi and held that as the defendant did not send the arrears of rent by postal money order along with the current monthly rent, he became a defaulter.
9. Mr. Dey. learned Counsel appearing on behalf of the appellant firstly submitted that the aforementioned Division Bench decision having been over-ruled by a Full Bench of this Court in Raj Kumar Prasad v. Uchit Narain Singh this appeal should be allowed. Mr. Dey further contended that despite the fact that the trial Court upon consideration of the evidences on record came to the conclusion that there was no relationship of landlord and tenant, the learned lower appellate Court committed an illegality in reversing the said finding without assigning sufficient or cogent reasons therefor. In support of this submission Mr. Dey has placed strong reliance upon a Division Bench decision of this Court in Nokhey Lal Yadav v. Yogendra Prasad Gupta reported in 1986 PLJR 353.
10. Mr. M.Y. Eqbal, learned Counsel appearing on behalf of the respondent, on the other hand, submitted that although in view of the fact that the decision of the Division Bench in Rajendra Mohan v. Smt. Kaushalia Devi , has been overruled by the Full Bench in Raj Kumar Prasad v. Uchit Narain Singh reported in AIR 1980 Pat 142 : 1980 PLJR 195 (FB) but the appellant must be held to be a defaulter in view of the finding of facts arrived at by the learned lower appellate Court. According to Mr. Eqbal, the plaintiff in paragraph 6 of the plaint stated about the factum of payment of a sum of Rs. 120/- by way of rent from 1-6-1976 which was received by the plaintiff on 17-1-1977. The defendant in reply to the aforementioned statement in Paragraph 16 of the written statement, stated that the said rent was paid by mistake. The defendant has, however, admitted that he sent rent by postal money order from January 1977 to December, 1977 which was refused by the plaintiff.
11. According to Mr. Eqbal, it further appears that the rent for the month of January 1977 was sent on 5-2-1977 (Ext. H/5), rent for the month of February, 1977 was sent on 17-3-1977 (Ext. H/4), rent for the month of March and April was sent on 5-5-1977 (Ext. H/3), rent for the months of May and June was sent on 11-7-77, rent for the month of July and August was sent on 19-9-1977 (Ext. H/1), rent for the month of September and October was sent on 26-11-1977 (Ext. H) and rent for the month of November and December, 1977 was sent on 6-1-1978.
12. Mr. Eqbal further submitted that the respective dates of remittance would be further fortified from the money order coupons i.e. in respect of the rent for the month of February 1977 from Ext. C/2, in respect of March and April 1977 from Ext. C/3, in respect of May and June, 1977 from Ext. 0/4, rent in respect of July and August, 1977 from Ext. C/l, in respect of September and October, 1977 from Exhibit C/5 and in respect of November and December, 1977 from Ext. C/6.
13. Mr. Eqbal on the basis of the aforementioned documents submitted that in view of the fact that the rent for July and August, 1977 was sent on 19-9-1977 the defendant became a defaulter in respect of the month of July, 1977. Similarly as the rent for the month of September and October, 1977 was sent on 26-11-1977, the plaintiff admittedly became a defaulter in respect of the month of September, 1977. In the same way as the rent for the month of November and December, 1977 was sent on 6-1-1978, the defendant became defaulter in respect of the month of November, 1977.
14. It has been held by this Court on a number of occasions that for the purpose of coming to the finding that a tenant has become a defaulter in respect of two months’ rent lawfully payable by him, it is not necessary that the tenant would default in payment of rent of two consecutive months. Reference in this connection may be made in Raj Kumar Prasad v. Uchit Narain Singh ; Tip Top v. Indramani reported in 1982 BBCJ 433 and Sadanand Das v. Md. Hussain and Anr. reported in 1986 PLJR (SC) 46.
15. In view of the fact that the defendant admittedly did not tender the monthly rent within the prescribed time as contemplated under Section 12 (1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 for the months of July, September and November, 1977, in my opinion, it has to be held that the defendant appellant was a defaulter.
16. Coming to the next contention raised by Mr. Dey with regard to the relationship of landlord and tenant by and between the plaintiff and defendant it may be noticed that the matter has elaborately been dealt with by the learned lower appellate Court.
In paragraphs 6 to 10 of his judgment the learned lower appellate Court considered the evidences on record including the correspondence entered into by and between the parties to the suit as also the fact that the defendant have been sending the stipulated monthly rent by money order to the plaintiff as also tendering the monthly rent to his predecessor-in-interest without any demur whatsoever and thus came to the conclusion that there has been relationship of landlord and tenant by and between the plaintiff and the defendant. In his judgment the learned lower appellate Court has assigned sufficient and cogent reasons in coming to the finding that the defendant, who was admittedly inducted a tenant by the plaintiff’s predecessor-in-interest and who having been tendering rent to him as also to the plaintiff’s vendor and after the execution of the aformentioned deed of sale dated 5-12-1977 to the plaintiff upto June, 1977, cannot be permitted to challenge the title of the plaintiff. In view of the aforementioned conduct on the part of the defendant-appellant it is evident that he had not only admitted the plaintiff’s vendor to be his landlord but also accepted the plaintiff as his landlord. The decision cited by Mr. Dey goes against him. In the said decision it has been held that in view of Section 109 of the Transfer of Property Act, a person who purchases the tenanted premises from the rightful owner becomes a landlord.
17. This aspect of the matter has also recently been considered by the Supreme Court in Tejbhan Madan v. Additional District Judge and Ors. . In the aforementioned decision, it has categorically been held by the Supreme Court that if a tenant pays rent to the landlord he is precluded from challenging his title on the general principles of estoppel between landlord and tenant. It has further been held in the aforementioned decision that Section 116 of the Evidence Act is not exhaustive with regard to the law of estoppel.
18. In this view of the matter, in my opinion, the judgment of the learned lower appellate Court cannot be assailed. There is thus no merit in this second appeal which is, accordingly, dismissed.
In the facts and circumstances of this case, there shall be no order as to costs.