IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 1296 of 1987 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- GULAMMINYA HASUMINYA DECEASED THROUGH HIS HEIRS Versus SAKHAVATKHAN MOHMADKHAN DECEASED THROU LEGAL HERIS -------------------------------------------------------------- Appearance: MR SURESH M SHAH for Petitioners MR ARUN H MEHTA for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision:__ /10/2000 CAV JUDGEMENT This is a Civil Revision Application under Sec.29(2) of the Bombay Rents Hotel & Lodging House Rates Control Act, 1947 (for short the "Act"), filed by the original defendant challenging the correctness, legality and propriety of judgment dt. 14th September, 1987 rendered by the Appellate Bench of the Small Causes Court at Ahmedabad in Regular Civil Appeal No. 143 of 1981, whereby the said Appellate Bench was pleased to dismiss the appeal filed by the original defendant and confirm the judgment Ex.46 dt. 25th March, 1981 rendered by the learned Judge of the Small Causes Court, Court No.12 at Ahmedabad (who will be referred to hereinafter as the learned Judge of the trial Court) in H.R.P.Suit No. 4896 of 1977. 2. Here in this Civil Revision Application, Revision Petitioner was an original defendant and Revision Opponent was an original plaintiff in the suit being H.R.P.Suit No. 4896 of 1977 before the trial court, and therefore, for the sake of convenience, parties will be referred to as plaintiff and defendant respectively at appropriate places. 3. The facts leading to this present Civil Revision Application, in a nutshell, are as follows:- The plaintiff is an owner of suit property bearing Municipal Census No. 448/21 situated in Doctor's Chawl, Gomtipur near Usha Talkies in the City of Ahmedabad. When plaintiff purchased the said suit property, the defendant was already therein as a tenant in the said suit property. After purchase of suit property by the plaintiff, he informed about the suit property having been purchased by him to the defendant. It is the case of the plaintiff that defendant is a tenant in the said suit property for monthly rent at the rate of Rs.10/- and tenancy month is according to English Calendar month. It is the case of the plaintiff that defendant is a tenant in arrears of rent for more than six months and that defendant has neglected to make payment of such rent due for more than six months within one month after service of suit notice u/s. 12(2) of the Act. As per the case of the plaintiff, as on date of notice dt. 22nd September, 1977, defendant was in arrears of rent for the period from 7th October, 1974 to 21st September, 1977. Therefore, he, by addressing a suit notice dt. 22nd September, 1977, terminated the tenancy of the defendant and called upon the defendant to hand over the possession of the suit property. On receipt of suit notice, the defendant replied the said notice and in that reply, he denied the title of the plaintiff over the suit property, and thereby the defendant has committed a breach of terms of tenancy, and therefore, also defendant is not entitled to retain possession of the suit property. Thereafter, plaintiff filed H.R.P.Suit No. 4896 of 1977 in the Court of the learned Judge of the trial Court on or about 1st December, 1977, wherein he prayed for a decree of eviction of defendant from suit property directing the defendant to hand over the possession of said suit property and also for a money decree to recover Rs. 368/- being an amount of arrears of rent calculated for the period from 7th October, 1974 to the date of the suit. He also prayed for other consequential reliefs in that suit. 4. The defendant appeared and contested the suit by filing his written statement Ex.13, wherein he has practically denied all the pleadings of the plaintiff pleaded in the plaint of the suit. In written statement also, the defendant has contended that the plaintiff is not his landlord and there is no relationship of the landlord and tenant between plaintiff and himself and hence the plaintiff has no right to file the suit. As per the case of the defendant, the previous owners were Shri Yadukant S.Dave and Chandrakant S. Dave and that previous owners have not given him any attornment notice either oral or in writing. It is his case that he is a tenant of Yadukant S. Dave, and therefore, plaintiff is not entitled to claim any amount as rent from him. It is his further case that as the plaintiff gave a false notice, he filed one Civil Misc. Application No. 3784 of 1997 for fixation of standard rent against said Yadukant S. Dave and Chandrakant S. Dave and also against the present plaintiff. He is depositing rent in Court in connection with proceeding of that application. He has taken a dispute with regard to standard rent of suit property and as per his case, standard rent deserves to be fixed at Rs.5/- per month. Lastly, defendant requested the learned Judge of the trial Court to dismiss the suit of the plaintiff with costs. 5. From the pleadings of both the parties, the learned Judge of the trial Court framed issues at Ex.15. By keeping in mind the issues framed at Ex.15, both the parties led their oral as well as documentary evidence in the trial Court. Thereafter, after hearing the arguments of the learned advocates for both the parties and after appreciating the evidence led by both the parties, the learned Judge of the trial Court was pleased to come to a conclusion that the plaintiff has proved that there has been a relationship of landlord and tenant between the parties to the suit. He has further held that the Court has jurisdiction to entertain and decide the suit of plaintiff. He has further been pleased to hold that the defendant is a tenant-in-arrears of rent for more than six months and he i.e. defendant has neglected to make payment of such arrears, and therefore, defendant is a defaulter and he is liable to be ejected on that ground. He has also been pleased to hold that contractual rent at the rate of Rs.10/- is not excessive and ultimately, he was pleased to fix the standard rent at the rate of Rs.10/- per month. For an important issue with regard to denial of title of plaintiff by defendant, he was pleased to answer Issue No. 4 in the affirmative saying that there has been a denial of title of plaintiff by the defendant and thus, the learned Judge of the trial Court rendered his judgment Ex.46 on 25th March, 1981 and allowed the suit of the plaintiff granting a decree of eviction in favour of plaintiff directing the defendant to hand over vacant and peaceful possession of the suit property to the plaintiff latest by 30th June, 1981. Defendant was also directed to make payment of mesne profits at the rate of Rs.10/- per month for the period from the date of the suit till possession is handed over. He also fixed the standard rent of the suit property at the rate of Rs.10/- per month. He also passed a money decree in favour of plaintiff to recover Rs. 360/- being an amount of arrears of rent from defendant. 6. Being aggrieved against and dissatisfied with the said Judgment Ex. 46 dt. 25th March, 1981 of the learned Judge of the trial Court, original defendant preferred an appeal bearing Civil Appeal No. 143 of 1981 to the Appellate Bench of the Small Causes Court at Ahmedabad. The learned Judges of the Appellate Bench of the Small Causes Court at Ahmedabad heard the arguments of the learned advocates of both the parties, perused record and proceeding of suit and after appreciating the evidence led by both the parties, they rendered their Judgment dt. 14th September, 1989 in Civil Appeal No. 143 of 1981. By that judgment, Appellate Bench was pleased to dismiss the appeal preferred by the original defendant and thereby the Appellate Bench confirmed the judgment of the learned Judge of the trial Court which was challenged in that appeal. 7. Being aggrieved against and dissatisfied with the said judgment dt. 14th September, 1989 of the Appellate Bench of the Small Causes Court at Ahmedabad rendered in Civil Appeal No. 143 of 1981, the original defendant had preferred this Civil Revision Application. During the pendency of this Civil Revision Application, original revision petitioner died and therefore his heirs and legal representatives are brought on record vide order dt. 19th April, 1999 passed in Civil Application No. 12178 of 1998. Likewise the original revision opponent i.e. plaintiff also died during the pendency of this present Civil Revision Application, and therefore, heirs and legal representatives of deceased revision-opponent i.e. plaintiff are brought on record vide order dt. 29th June, 1998 passed in Civil Application No. 12062 of 1997. 8. I have heard Shri S.M.Shah, the learned advocate for the revision petitioner and Shri A.H.Mehta, the learned advocate for the revision opponent. Shri S.M.Shah, learned advocate for the revision petitioner has produced certain documents in bunch so as to enable this Court to refer that documents at the time of arguments. 9. Originally, the plaintiff filed H.R.P.Suit No. 4896 of 1977 for eviction decree to get possession of suit premises, from defendant only on two grounds - (i) That defendant has denied title of plaintiff who is an owner of the suit premises; (ii) That the defendant is a tenant in arrears of rent for more than six months and that he has neglected to make payment of such rent due within one month from the date of receipt of the notice under Sec. 12(2) of the Act. For first ground relating to denial of title of the plaintiff, the learned Judge of the trial Court answered Issue No.4 in affirmative accepting the case of the plaintiff. For second ground with regard to case falling under Sec.12(3)(a) of the Act, the learned Judge of the trial Court also accepted the case of the plaintiff by answering Issue No.3 in affirmative in favour of the plaintiff and thus on aforesaid two grounds, the learned Judge of the trial Court passed a decree of eviction in favour of plaintiff directing the defendant to hand over the vacant and peaceful possession of the suit premises to plaintiff latest by 30th June, 1981. 10. On appeal being filed by the defendant/tenant, the learned Judge of the Appellate Bench, by dismissing Civil Appeal No. 143 of 1981 filed by the defendant/ tenant confirmed the judgment rendered by the learned Judge of the trial court. The learned Judges of the Appellate Bench by accepting the case of the plaintiff, on the aforesaid two grounds, dismissed the appeal of the defendant/tenant. 11. To understand the case of the plaintiff with regard to denial of title of the plaintiff by defendant, easily some facts are required to be kept in mind, while dealing with the subject on first ground stated hereinabove. (i) Originally, the property bearing Municipal Census No. 448/21 situated in Doctor's Chawl, Gomtipur, near Usha Talkies in the City of Ahmedabad was of joint ownership of Ydukant Sarjantray Dave and Chandrakant Sarjantray Dave. (ii) The defendant had already been inducted as tenant for monthly rent of Rs.10/- of the suit room described in Para 6A of the plaint by said two original owners of the property, before present plaintiff purchased suit property in 1974. (iii) The plaintiff purchased the suit property by registered document Exh.35 from said two owners on 7/10/1974. (iv) As per the case of the plaintiff, defendant was a tenant in arrears of rent for the period from 7/10/1974 to 31/10/1977 i.e. for 36 months. (v) The plaintiff addressed a notice Ex.31 dt. 22/9/1977 to defendant and terminated tenancy of the defendant. (vi) The defendant, by his reply Ex.38 dt. 19/10/1977, denied the title of the plaintiff for suit property, and therefore, by taking this ground of denial of title by defendant, as one of the grounds, plaintiff filed the suit for eviction on 1/12/1977. Defendant appeared and contested the suit by filing his written statement Ex.13. 12. Shri S.M.Shah, the learned advocate for the revision petitioner i.e. defendant/tenant, has argued that for plaintiff, it cannot be gainsaid that defendant is a tenant since many years before he purchased the suit property from original landlords, and therefore, before purchase of the suit property by plaintiff, neither the plaintiff was a lessor of the defendant, nor defendant was a lessee of the plaintiff. Shri S.M.Shah, the learned advocate has further argued that in view of this fact, after purchase of the suit property by plaintiff, as alleged by plaintiff, on 07-10-1974, the original lessors i.e. the persons who sold the suit property to plaintiff at the time of transferring the property, were legally duty bound to give attornment notice under Sec.109 of the Transfer of Property Act, 1852 ( for short " T.P.Act") to defendant. Sec.109 of T.P.Act reads as follows: Sec.109 - Rights of lessor's transferee.- If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of 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 rent 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 leased." 13. First part of Sec.109 the T.P.Act deals with rights and liabilities of the transferee i.e. party who purchases the property. This first part of Sec.109 says nothing about lessee of the original lessor i.e. transferor. The second part of Sec.109 of the T.P.Act which is a proviso to first part of Sec.109 deals with a right of transferee to recover rent due for the period prior to transfer of it from the lessee and it also makes it clear that if lessee who has no reason to believe that such transfer has been made, pays rent to the original lessor, the lessee cannot be held liable to pay such rent over again to the transferee. So far as this present case is concerned, proviso i.e. second part of Sec.109 is very much important to decide this case. 14. On reading Sec.109 of T.P.Act, it appears that said Sec.109 creates a statutory attornment which substitutes, and the same effect as contractual attornment, so that because of a transfer of the leased property or part thereof, the transferee ipso facto acquires " all the rights" of the lessor, and a new relationship is created between the transferee and the lessee. Letter of the attornment is not necessary to complete title to the assignee of the reversion under Section 109. Title of the assignee is complete on the execution of the deed of assignment and is not postponed till the notice of the assignment. 14. Here in this case, it is an admitted fact that plaintiff purchased suit property by a registered sale deed from its original owners on 7/10/1974. Sec.109 of the T.P.Act does not impose any obligation on the lessor or transferor to give notice of transfer to the lessee. It only provides that if the lessee, " not having reason to believe" that such transfer has been made, pays rent to the lessor, he shall not be liable to pay it over again to the transferee. If the lessee knows about the transfer, his payment of rent to the lessor with the knowledge of the transfer does not protect him against the liability to pay it over again to the transferee. 15. Looking to this legal position, if defendant/ tenant had reason to believe that such transfer has been made by original owners of the suit property in favour of plaintiff on or about 07/10/1974, then defendant/tenant cannot take any dispute with regard to non receipt of notice of attornment by taking shelter of Sec.109 of the T.P.Act. Shri S.M.Shah has read before me an evidence of defendant whose evidence was recorded at Ex.40 in the suit. His deposition was recorded on 9/3/1981 and he has deposed in Para 1 of his examination-in-chief that he is a tenant in the suit premises since last 14 years. Thus, his case is that he is a tenant in suit property since 1967. It is his contention that original owners of the suit property have not given any notice of attornment to him for property sold to plaintiff, and this contention has been taken by him for his defence as against the case of plaintiff for denial of title of the plaintiff pleaded against defendant in plaint. In cross-examination, defendant has admitted in unequivocal words that " he came to know one or two months after purchase of property by plaintiff, that plaintiff has purchased the said suit property ". So as per proviso to Sec.109 of T.P.Act, it cannot be said that defendant being lessee was not having reason to believe that such transfer has been made, and therefore, looking to the requirements stated in Sec.109 of the T.P.Act, it was not necessary for the plaintiff to see that original owners must give a notice of attornment to the defendant on property being purchased by plaintiff, particularly when defendant had already come to know about that fact of purchae of property by plaintiff within one or two months after the date of purchase of the property by plaintiff. Hence, the learned Judges of the Appellate Bench have rightly accepted the case of the plaintiff that there has been a relationship of landlords and tenant between the parties of the suit. In the background of aforesaid legal position with regard to notice of attornment, question with regard to denial of title can be dealt with easily. There is no provision with regard to denial of title either in the Transfer of Property Act or in the Bombay Rent Act, 1947. The relevant provisions with regard to denial of title is found in Sec.116 of Indian Evidence Act, 1872 ( for short " Indian Evidence Act"). Sec.116 of the Indian Evidence Act reads as follows:- Section 116 :- " Estoppel of tenant and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given." 16. Shri S.M.Shah has by reading Sec.116 of Indian Evidence Act argued that lessee can deny title of the person who claims his title through the original owner of the property i.e. the original lessors of the defendant. He has put much emphasis on the words "during the continuance of the tenancy " used in Sec.116 of the Indian Evidence Act and then strenuously argued that so far as this cae is concerned, defendant has denied that plaintiff has become an owner of suit premises as alleged by plaintiff, under a sale deed dt. 7/10/1974. In support of his arguments, he has cited one authority of KUMAR KRISHNA PROSAD LAL SINGHA DEO VS. BARABONI COAL CONCERN, LTD. AND OTHERS, reported in A.I.R. 1937 Privy Council P. 251, wherein it has been held that the tenant is not precluded from denying the derivative title of the persons claiming through the landlord. Shri Shah has argued that here in this case, plaintiff has come with a case that he derived title in the property by purchasing suit property from original owners i.e. original lessors of the present defendant being lessee. He has also cited one another authority of D.SATYANARAYANA Vs. P. JAGADISH reported AIR 1987 SUPREME COURT, P. 2192, wherein it has been held that- "Sec.116 of the Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. Estoppel under S.116 of the Evidence Act is restricted to the denial of the title of the landlord at the commencement of the tenancy. From this, the exception follows, that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder." He has also cited a case of C.CHANDRAMOHAN VS. SENGOTTAIYAN (Dead) BY L.Rs.AND OTHERS, reported in AIR 2000 SUPREME COURT 568. In this cited case, the appellants before the Hon'ble Supreme Court, appellant was the landlord, whereas the respondents were the tenants of three shops. The father of original plaintiff late Chockalingam was the owner of three shops. Out of three shops, one shop was leased to T. Subramaniam at the rate of Rs.75/- per month. Another shop was leased to M. Sengottaiyan who died during the pendency of the proceedings and therefore, his legal representatives were brought on record as respondent nos. 2 to 6 and third shop was leased to Nachimuthu at the rate of Rs.200/- per month. On or about 8th June, 1978, said original owner Chockalingam executed release deed in favour of appellant i.e. plaintiff of the suit, and thus he became the absolute owner and landlord of the premises. The plaintiff issued notice to three tenants stating that the premises were required for demolition and reconstruction and asking them to vacate the same. The defence taken by tenants in reply to said notice was to the effect that plaintiff was only a co-owner as the original landlord (Chockalingam) died leaving behind him three daughters and a widow also, and therefore, he could not seek eviction for demolition and reconstruction of the premises. Thereafter, plaintiff filed three eviction petitions under Sec.10(2) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act ( 18 of 1960) mainly on three grounds namely (i) wilful default in payment of rent; (ii) for demolition and reconstruction of the premises and (iii) denial of the title of the landlord. The Rent Collector