Sinaie Bench : Hon'bie Shri Ditip Raosaheb Deshmukh, J, Second^A@DealN^o,376of2005 Mohammed Naeem Khan Versus Mahendra Singh Khanuja and two others JUDGMENT . Postfor ;3 -0^-2007 Sdf- Dilip Raosaheb DeshmuKh judge HJGH COURT OF CHHATTISGARH AT BiLASPUR Singie Bench : Hon'bie Shri Diiip Raosaheb Deshmukh, J. Second Appea! No. 376 of 2005 (Defendant) Piaintiff Defendant Ne,3 Mohammed Naeem Khan, aged about 29 years, son of Shri Nabi Baksh @ Chhutu Khan, ressdent of Kali Ward, Kawardha, District Kabirdham. Versys 1. Mahendra Singh Khanuja, aged about 42 years, son of Lata Sus-jest Singh Khanuja, resident of Guru Govind Singh Chowk, Main Road, Kawardha, Dsstrlct Kabirdham. Defendant No.2 : 2. The Coiiector, Kawardha, District Kabird'nam. 3. Ths Executive Engineer, Pubiic VVorks Department, (National Highway iMo.12) Sub- Division Kawardha, District Kabirdham. A 'SAL UNDS! :CTiON_10Q OF TMP i r~ii£r tl PROCEDURi Present: Shri Ajit Singh, counss! for ths appellant'defendant. Shri Rajeev Shrivastsva, c-ounse! for respondent No.1 Jt^-v^^ (Deiiyered on thls l3'tk day Qf-iytey, 2QQ7) 'he'appeiiant'defendant is aggrieved by the judgment and decree passed In Civil Appeal No. 16-A of 2004 on 12.07.2005 by District Judge, Kabirdham (Kawardha) whereby the judgnient and decree passed by the 2nd Civil Judge, Class-!, Ka\«,'ardha in Civil Suit No. 44-A of 2003 dismissing the suit for eviction was revered. 2 2. It is not disputed that Jyoti Chourasia was the owner of piot No.12 area 193 square meters i.e. 2076 sq. ft. (hereinafter referred to as the 'land'), which was soid by her to the respondent/plaintiff - Mahendra Singh Khanuja by a registered sale deed dated 15.05.2001. On the land thus sold, there was an old tin shed (hereinafter referred to as the 'shed') made of bricks in which the appeiiant/defendant was the tenant of Smt. Jyoti Chourasia on rent of Rs.300/- per month. The appeilant/defendant was running an automobile tyre puncture' .shop in the shed. The appeitanVdefendant used to pay rent to Parameshwar Prasad Choubey every month. tt is a!so not disputed Shat in the registered sale deed dated 15.05.20)1, it was not mentioned that along with ths tand the shed has also been sold. Admittedly, the respondent/plaintiff served legal notice on 22.11.2002 of attommentof tenancy to She appe!lant/defendant vide Ex.P.7 to which the appellant/defendant had replied vide Ex.P.10. It is aiso admitted that the appellant/dsfendant had, at no point oftime, paid any rent to the respondent/plaintiff. 3. The respondent/plaintiff instituted Civil Suit for eviction of the tenant on the ground of bona fide requirement for construction of a commerciai compiex on the iand as ateo on the ground that the shed had become oid and dilapidated and was unsafe for human iife. Arrears of rent and mesne profits were also claimed in the suit. The trial Court dismissed the suit for eviction so!e!y on the ground that the piaintiff had failed to prove that he wasvthe landlord and owner of the shed since in the registered sale deed dated 15.05.2001, it was not mentioned that the shed was also sold along withthe land. 4. Being aggrieved, the respondent/ptaintiff preferred Civil Appea! No. 1S-A of 2004. The lower appellate Court, on apprecsation of evidence oral as wel! as documentary, held that Jvoti Chourasia iniended to sell the shed along with ths iand to Mahendra Singh Khanuja and fhat rent of the shed should be paid by the tenant to Mahendra Singh Khanuja. It also he!d that the piaintiff required the shed bona fide for construction of a commercia! complex on the iand. !t was also heid that denia! of the title of the landiord by the tenant entffled the plaintiffto evict the tenant. On these premises, the appeal was aiiowed. 5. Learned counsel for the appe!!ant/defendant submitted at the very outset that he wouldassail the impugned judgment only on the ground that the respondenVpiaintiff had failed to prove that the relationship of landlord and tenant existed between the appellant/defendant and the respondent No.1/p!aintiff because the sale deed dated 15.05.2001 did not show that the shed was also inciuded in the transfer of land to Mahendra Singh Khanuna. No other point was urged. On the other hand, learned counsel for respondent No.l/plaintiff white arguing in support of the impugned judgment and decree contended that the facts relating to purchase of the shed appurtenant to the land were specificaliy pteaded ih the plaint paragraph 2, which was not specifically denied by the appeliant/defendant No.1 in the written statement paragraph 2. Placing reiiance on Jahuii Sah and others v. Dwarika Prasad Jhunjfiunwaia s»cfothers AIR 1987 SC 109, !t was urged that in the a&ssnce of specific denial. the above fact shou!d be taken to be admitted bv the defendant. 6. The sois substantial question of law that arises for determination in this appeal is as under: 'Whether ths first Apoellate Court was riaht in holding that the respondent-plaintiff Vi/as the iandiord of the appetiant-defendant in the suit accommodation?" 7. Having heard the rival contentions, i have perused the record. The pleadings relating to purchase of the shed appurtenant to the land by the respondent No.l/plaintiff are contained in paragraph 2 of the piaint. It has been specificallv o!eaded thatthe resoondsnt No.l/olaintiffhad Durchased the iand along with the shed appurtenant thereto on 15.05.2001. However, in the written statement the defendant No.1 in paragraph 2 did not either gsneraily or specificaiiy deny this fact. Under Order Vilt Rule 5 of C.P.C., every altegation of fact in the piaint, If not denied specificaily or by necessary implication or stated to be not admitted in the pteadings of the defendant shail be taken to be admitted by the defendani. 8. Section 8 of the Transfer of Property is as under: of transfer.—untessa different intention is expressed or necessariiy impiied, a transfer of property passes forthwith to the transferee ali the interest which the transferor is then capable of passing in the property and in the lega! incidents thereof. Such incidents inciuds, v/here the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and ai! things attached to the earth ; and where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors windows, and al other things, pro'/ided for permanent use therswith; and, where the property is a debt or other acttonabie ciaim ; ths securitiss thsrefore (except 'A'here u 5 they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or incoms thereof accruing after the transfer takes effect. Section 8 of the Transfer of Property Act thus provides that where the property is land, the legal incidents shall include the easements annexed thereto, the rerits and profits thereof accruing after the transfer and all things attached to the earth unless a different intention is expressed or necessarily impiied by the transferor. ; 9. Thus it needs to be examined whether Jyoti Chourasia expressed any intention that while fransferring the land, ownership of the shed and the right to recover rent thereof was also trahsferred to Mahendra Singh Khanuja. It is true that the registered sale deed dated 15.05.2001 did not mention that the shed was also included in the transfer of land. However, there is overwheiming evidence on record to show that at the time of transfer, Jyoti Chourasia had expressed a clear intention of transfemng the ownership of the shed also to Mahendra Singh Khanuja and had asked the appetlant/defendant to pay rent to Mahendra Singh Khanuja. Parameshwar Prasad Choubey is the person to whom admittedly the appellant/defendant used to pay rent v/hile Jyoti Chourasia was the land owner. His testimony shows that he was authorized by Jyoti Chourasia to collect rent of the shed. He admitted in cross-examination that after the sale,, Jyoti Chourasia had instructed her not to recover rent of the shed from the tenant. It is aiso pertinent to note that there is absoiuteiy no material on record whatsoever to show that the appe!lant/defendant had continued paying rent to Jyoti Chourasia through Parameshwar Prasad Choubey even after the sale. Parameshwar Prasad Choubey stated that the shed was atso sold atong with the land by Jyoti Chourasia to Mahendra Singh Khanuja. This testimony is whoily corroborated by Prafuila Shrivastava, a witness to the sale deed dated 15.05.2001. Mohammed Rauf P.W.2 stated that the appelianVdefendant was inducted as a tenant in the shed at his behest by Jyoti Chourasia and at the time of saie, Jyoti Chourasia had calied him with th«appe!!ant/defendant and told them that henceforth the appellant/defendant shouid payrent to Mahendra Singh Khanuja. The appellant/defendant admitted receipt of notice from Mahendra Singh Khanuja vide Ex.P.7 in which the fact of purehase of shed by Mahendra Singh Khanuja from Jyoti Chourasia and the attornment of tenancv was mentioned. The fact that the appellant/defendant discontinued paying rent to Jyoti Chourasia or to her agent Parameshwar Prasad Choubey is also sufficient to draw an inference that the appeilant/defendant knew that there was an attornment of tenancy and he was required to pay rent to Mahendra Singh Khanuja who had purehased the land on which the shed stood. 10. The order dated 21.06.2001 passed by Nazul Officer, Kawardha Ex.P.2 also shows that after due enquiry the land was mutated in the name of Jyoti Chourasia. The report of Revenue Inspector Ex.D.1 atso ciearly mentions that the appellant/defendant was in possession of the iafld which was soid by Jyoti Chourasia to Mahendra Singh Khanuja. In this manner, there is sufficient evidence on record to show that while selling the !and to Mahendra Sinah Khanuja, Jvoti Chourasia intended to transfer the shed which stood on the land. In this manner, requirement of 7 Section 8 of the Transfer of Property Act is satisfied and it is proved that by transferring the land through a registered saie deed on 15.05.2001 Jyoti Chourasia had transferred all interests in the iand which she was capabie of passing to the transferee a!ong with the ownership of the shed and the right to recover rent of the shed. Thus, Mahendra Singh Khanuja acquired title over the shed by virtue of sale deed dated 15.05.2001 and had the legal right to recover rent from the appellanfdefendant who became his tenant after the sale by Jyoti Chourasia. For denying the titte of the landlord, for not paying rent to the respondent No.l/plaintiff as also on the ground of bona fide requirement of the landlord for construction of a commeroial compiex, the first appellate Court was wholly justified in reversing the judgment and decree passed by the trial Court and granting a decree for eviction in favour ofthe respondent No.l/piaintiff. 11. Substantiai question of !aw is thus answered in the affirmative against the appellant/defendant and in favour of the respondent No.l/plaintiff </- 12. Theappeaibeingdevoidofanymeritisdismissed.^'1' ?*<<^-^ *~» w^3 Sd/- Dilip Raosaheb Deshmukh Judge