Reserved HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 29 OF 2004 Smt. Asha Bahuguna ………….Plaintiff/Appellant. Versus B.S. Ruppal …………….Defendant/Respondent. Dated: 7.5.2008 Hon’ble Rajesh Tandon, J. Heard Sri BC. Pande, Sr. Advocate, assisted by Sri B.D. Pande, counsel for the appellant and Sri L.K. Tiwari, counsel for the respondent. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 24.9.2003 passed by the Additional District Judge / F.T.C. III, Dehradun in Civil Appeal No. 4 of 2003 B.S. Ruppal Vs. Smt. Asha Bahuguna arising out of judgment and decree dated 11.2.2003 passed by the Civil Judge, Chief Judicial Magistrate/F.T.C. II, Dehradun in Civil Suit No. 28 of 1990 Smt. Asha Bahuguna Vs. B.S. Ruppal. 3. Present Second Appeal has been admitted on the following substantial questions of law: “A) Whether an owner suing on the basis of license and ownership both is entitled to sue a third person without title for his eviction and possession? B) Whether a stranger purchaser of a Joint Hindu Family dwelling house from all mail heirs can sue a third person 2 without title even though a married female daughter were a co-owner? C) Whether in absence of specific pleading and issue the first appellate court could have held Smt. Gurbachan Kaur a married daughter to be a co owner, especially so when the sale deed dated 17.4.1990 was never challenged or set aside within limitation by any one? D) Whether an unverified compromise 8A has no; evidentiary value? E) Whether the findings of first appellate court on issue no. 1, 2, 3, 4 & 6 are perverse?” 4. Briefly stated, a suit was filed by the predecessor of the plaintiff / appellant namely M.S. Ruppal & S.S. Ruppal being Original Suit No. 28 of 1990 M.S. Ruppal and another Vs. B.S. Ruppal praying to the following effect: “That the plaintiffs pray for that the suit of the plaintiffs for eviction of the defendant be decreed and the plaintiff be delivered actual physical possession of the house in suit as fully described in the schedule of the plaint and a further decree at the rate of Rs. 300/- per month from the date of filing of this suit till the date of delivery of actual physical possession of the house be passed along with costs of the suit against the defendant and further such other relief which the learned court may deem fit and proper be also awarded in favour of the plaintiffs against the defendant.” 5. According to the plaint averments, the defendant being the son of the earlier plaintiff no. 1 namely Sri M.S. Ruppal was authorized to stay in house No. 264, Chukkhuwala, Dehradun as licensee of the plaintiffs. He has agreed to vacate the said house by August, 1989, but in spite of several requests on the part of the plaintiffs did not vacate the same and a notice 3 was sent on 1st November, 1989 terminating the licence of the defendant. The plaintiff has also claimed a sum of Rs. 300/- per month towards letting value of the house till the delivery of actual possession. 6. A written statement was filed by the defendant denying the plaint averments. It was stated that the plaintiffs are father and real uncle of the defendant and they are owners and landlords of the property in suit. It was further stated that the plaintiffs had a share in the said house as co-partners along with the defendant. 7. During the pendency of the suit, the plaintiffs have sought an amendment under Order VI Rule 17 of the Code of Civil Procedure stating therein that M.S. Ruppal and S.S. Ruppal are real brothers and owners and landlords of the House No. 264, Chukkhuwala, Dehradun. They have sold the same to Smt. Asha Bahuguna and she has stepped into the shoes of the earlier plaintiffs. The said amendment was allowed and in the plaint also paragraph 1 A was added to the following effect:- “That Sri M.S., Rupal and S.S. Rupal, who are the real brothers and who were the owners and landlords of House No. 264, Chukhuwala, Dehradun and had filed the present suit, have sold the same to the applicant Smt. Asha Bahuguna and as such, she has stepped in the shoes of the earlier plaintiffs, namely M.S. Rupal and S.S. Rupal.” 8. There also appears a compromise between the parties on 30th April, 1990, in which the defendant has agreed to vacate the premises by 31st July, 1990. 4 9. On the pleadings of the parties, the trial Court has framed the following issues: “1& D;k okfnuh fookfnr lEifRr dh ekfyd ctfj;s cSukek pyh vkrh gS\ 2& D;k izfroknh us vxLr 1989 rd fookfnr lEifRr dk [kkyh djus dk vk’oklu fn;k Fkk mlus mDr Hkou uksfVl fnukad 1&11&89 ds ckotwn [kkyh djds okfnuh dks dCtk ugha fn;k\ 3& D;k ,e0,l0 :iy o ,l0,l0 :iy fookfnr lEifRr ds Hkou ds ekfyd Fks\ 4& D;k izfroknh fookfnr lEifrr ij vuqKkih gS tSlk fd okn i= esa dFku gS\ 5& D;k okfnuh us okn dk ewY;kadu de ,oa xyr fd;k gS rFkk vnk fd;k x;k U;k; 'kqYd vi;kZIr gS\ 6& D;k izLrqr okn esa jSfIydk dk iSjk ua0 1 ds dFkukuqlkj izfroknh ds fo:) fooa/ku dk fl)kUr ykxw gksrk gS bl vk/kkj ij og fookfnr lEifRr esa LokfeRo dk rdZ ugha ns ldrk gS\ 7& okfnuh fdl vuqrks"k dks ikus dh vf/kdkfj.kh gS\” 10. Towards the documentary evidence, the plaintiff has filed per List 39 C 1 two documents, per list 49 C 1 three documents and per list 65 C 1 two documents. Towards the oral evidence, present plaintiff herself has been examined as P.W.1. 11. Towards the documentary evidence, the defendant has filed per list 88 C 1 three documents have been filed. Towards the oral evidence, B.S. Ruppal and S.S. Ruppal have been examined as D.W. 1 and D.W.2 respectively. 12. While deciding the issue no. 1 with regard to ownership by way of sale deed in favour of the plaintiff, reliance has been placed on the sale deed Paper No. 67-A, whereby the 5 premises has been sold in favour of Asha Bahuguna. Reliance has also been placed on the statement of P.W.1 Smt. Asha Bahuguna. Compromise Paper No. 8A has also been relied where the defendant has made signatures. P.W.1 Smt. Asha Bahuguna has also relied upon the registered sale deed in order to come to the conclusion of the title of the plaintiff. The said issue was decided in favour of the present plaintiff. 13. While deciding the issues no. 2 to 4, the trial Court has recorded a finding that after the termination of the licence, the defendant has no right to remain in occupation. The defendant has also admitted the signatures on Paper No. 8 A i.e. compromise and as such, issues were decided in favour of the plaintiff. Relevant portion of the finding recorded by the trial Court is quoted below: “fnukad 1-11-89 dks ,d uksfVl }kjk mldk ykbZlsal fujLr dj fn;k x;k FkkA iz’uxr uksfVl fnukad 1-11-89 i=koyh ij dkxt la[;k 145 gS bl dkxt ds lEcU/k esa dkxt la0 145 , uksfVl gS ftlds lEcU/k esa izfroknh us Mh0MCyw&1 ds :i esa ist 4 esa ;g Lohdkj fd;k gS fd ;g uksfVl fnukafdr 1-11-89 ls izkIr gqvk Fkk ftldk mlus tokc fn;k ;k ugha fn;k bldk mls /;ku ugha gSA i=koyh ij jkthukek dkxt la0 8 , gS gkykafd bls U;k;ky; ds le{k rLnhd ugha fd;k x;k gS fdUrq mDr dkxt ds lEcU/k esa izfroknh Mh0MCyw0 1 ch0,l0 mIiy us i`"B la0 3 esa Lohdkj fd;k gS fd bl dkxt ua0 8 , le>kSrs ij mlds gLrk{kj gSa ftlds fo:) mlus dHkh dksbZ vkifRr nkf[ky ugha dhA gkykafd dkxt la0 8 , jkthukek U;k;ky; esa rLnhd ugha gqvk gS fdUrq bl dkxt la0 8, ij izfroknh us vius gLrk{kj gksuk Lohdkj fd;k gSA izfroknh us Lohdkj fd;k gS fd Lo;a dh LohdkjksfDr ls Hkou [kkyh djus dk uksfVl fnukad 1-11-89 dks izkIr gqvk Fkk ,oa ;g LohdkjksfDr fd mlus dkxt la[;k 8, jkthukes ij 6 gLrk{kj fd;s gSa ftuesa mlus iSjk ua0 1 esa Lo;a dks crkSj ykbZlsalh jguk Lohdkj fd;k gS lkfcr djrk gS fd og mDr lEifRr ij crkSj ykbZlsalh jg jgk Fkk D;ksafd okn fcUnq ua0 1 ,oa ua0 3 ds fu.kZ; ls ;g lkfcr gqvk gS fd Jh ,e0,l0 mIiy ,oa Jh ,e0,l0 mIiy fookfnr lEifRr ds ekfyd Fks ftUgksaus okfnuh mDr lEifRr fodz; dj nh fodz; i= dkxt la0 67 , ds i`"B 2 esa bl ckr dk mYys[k fd;k x;k gS fd izfroknh Jh ch0,l0 :Iiy iq= Jh ,e0,l0 :Iiy crkSj ykbZlsalh jg jgs gSa ftudk ykbZlsal fujLr dj fn;k x;k gS buds foijhr izfroknh us tSlk fd ifjokn i= esa dFku gS fd og dksikVZuj gS lkfcr ugha dj ik;k gS vr% miyC/k lk{; ls ;g lkfcr gS fd izfroknh fookfnr lEifRr esa crkSj vuqKkih gS rFkk mlds }kjk vk’oklu fn;s tkus ds mijkUr Hkh okfnuh dks dCtk ugha lkSaikA bl izdkj ;g nksuksa okn fcUnq okfnuh ds i{k esa ,oa izfroknh ds fo:) fuf.kZr fd;s tkrs gSaAÞ 14. The trial Court has decreed the suit of the present plaintiff on 11.2.2003. 15. Aggrieved by the said judgment and decree, the defendant preferred an appeal being Civil Appeal No. 4 of 2003. 16. The appellate Court after relying upon the provisions of Hindu Succession Act has recorded the finding that the defendant has 1/3rd share in the property in dispute, therefore, this sale deed executed by the predecessors of the plaintiffs were not binding upon the defendants and the appeal was allowed. 17. Counsel for the appellant has relied upon the judgment of Sri Ram Pasricha Vs. Jagannath and others AIR 1976 Supreme Court 2335 with regard to the 7 proposition that every co-sharer is asmuch owner of the property as owner. Relevant paragraphs of the judgment are quoted below: “29. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13 (1) (f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13 (1) (f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants. 30. Mr. Rarkunde also submitted that since the Calcutta High Court has held in Yogamaya Pakhira v. Santi Sudha Bose, ILR (1968) 2 Cal 70 that a permanent lessee is not an owner within the meaning of Section 13 (1) (f) a co-owner would n be in a better position. We are of the opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is. We however express no opinion about the case of a permanent lessee as this point does not arise in this appeal.” 18. Further, the sale deed in question dated 17.4.1990 was never challenged or set aside by any of the Court of law, therefore, the plaintiff Smt Asha Bahuguna has become the absolute owner of the property. 19. The trial Court has treated the defendant as a licensee and the licence having been revoked, it is not open for the defendant to challenge the title of the landlord. The 8 judgment and decree passed by the appellate Court, therefore, deserves to be set aside. 20. I have perused the record. Sale deed dated 17th April, 1990 in favour of the present plaintiff has never been challenged by the defendant either by any parallel proceeding or by way of cross objection in these proceedings. 21. In view of the above, sale deed having been executed in favour of the plaintiff, amendment to that effect was allowed on 29.5.1991. 22. In Bhandari Construction Co. v. Narayan Gopal Upadhyaye (2007) 3 SCC 163, it has been held that it is impossible to lead evidence to contradict its term in view of the Section 91 of the Evidence Act if the terms of the transaction are reduced to writing. The observations of the Apex Court is quoted below: “15. When the terms of the transaction are reduced to writing, it is impossible to lead evidence to contradict its terms in view of Section 91 of the Evidence Act.” 23. Section 109 of the Transfer of Property Act is quoted below: “109. Rights of lessor’s transferee—If the lessor treansfers 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 transferred so long as he is the owner of it, but the lessor shall not, be reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, 9 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 of 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 the Cot having jurisdiction to entertain a suit for the possession of the property leased.” 24. Relying upon the judgment of Mohar Singh v. Devi Charan and others AIR 1988 SC 1365 and Raj Narain Jain v. Firari Sukhanand Ram Narain (D.B.) 1979 AWC 637 in Rajpal Singh V. Devendra Kumar 2002 (2) ARC 422 as under: “It would thus be seen that right to receive rent of a house or of land accruing after the transfer is a covenant running with the land and would pass to the lessor’s transferee. Ther may not be any privity of contract between the lessor’s transferee and the setting lessee but there is a privity of estate, which is sufficient to create a relationship of landlord and tenant. The following passage from Chapter IV of Foa’s General Law of Landlord and Tenant in Raj Narain Jain v. Firari Sukhanand Ram Narain (DB) states the law: “The relation of landlord and tenant may be created by assignment where the lessee assigns his term or where the lessor assigns his reversion. The former assignment creates the relation of landlord and tenant between the lessee and the assignee; the latter creates it between the assignee and the 10 lessee while the concurrence of both creates it between the two assignees.” This section makes a distinction between the effect of the transfer upon and rights of the lessor on the one hand and that on the liabilities on the other hand. In regard to the transfer of the lessor’s right it is provided that transferee in the absence of a contract to the contrary shall possess all lessee’s rights. In respect of liabilities of lessor, it is provided that these shall be transferred to his transferee if the lessee so elects. It is to be noted that the words ‘lessor’ and ‘lessee’ have been used in this provision as also the word ‘owner’. The transfer of lessor’s right would include right to rent from the lessee and all other rights that are stipulated in Section 108 of the Transfer of Property Act. However, the transferee will not be subject to the liabilities of the lessor unless the lessee so elects.” 25. In view of the aforesaid, present Second Appeal deserves to be allowed and substantial questions of law are decided in favour of the plaintiff / appellant. Judgment and decree dated 24.9.2003 passed by the Additional District Judge / F.T.C. III, Dehradun in Civil Appeal No. 4 of 2003 is set aside. 26. Consequently, Second Appeal is allowed. No order as to costs. (Rajesh Tandon, J.) 7.5.2008 Rathour