Case: D.N. Joshi (D) Thr. LRs. &amp; Others Vs. D.C. Harris &amp; Another

2. The predecessor in title of thehad filed a suit bearing Suit No.52 of 1966 before the Munsif Court, Nainital in respect of the House Property No.51, Mohalla Sakahawat Ganj, Haldwani, consisting of 6 rooms with toilet, one kitchen and two verandahs. The predecessor in title of the respondents had purchased the said house from one Zamir Ahmad. The predecessor in title of the appellants (defendant) was inducted as a tenant in the said premises during the life time of the previous owner, Akhtari Begum, who died in 1954.3. According to the respondents, the suit property was gifted by Akhtari Begum to her brother Zamir Ahmad (for short "the donee") by way of a gift deed dated 31.05.1949. In the said gift deed, the donor has clearly statedI (donor) agree that Taheer Ahmad (donee) has acquired title and possession like me and all rights of ownership as I had shall vest inAfter purchasing the suit property from Zamir Ahmad by way of a sale deed dated 10th October, 1965, the respondents predecessor in title demanded rent for the suit premises from the defendant (predecessor in title of the appellants). Since the defendant denied the title of the plaintiff, suit for eviction as also for arrears of rent and damages was filed by the plaintiff against the defendant.5. The said suit was dismissed by the Munsif Court, Nainital vide its judgment dated 26.09.1969. The trial court held that the gift deed was not valid as it was not accompanied by giving possession of the suit property to the donee and that the donee (Zamir Ahmad) did not have a valid title of ownership which he could transfer to the plaintiff. On this finding, the trial court opined that no relationship of landlord and tenant existed between the parties.6. The judgment of the trial court came to be affirmed in appeal being Civil Appeal No.59 of 1969, by the District Judge of Kumaon, Nainital. The District Judge also held that the gift deed was invalid as delivery of possession by the donor (Akhtari Begum) to donee (Zamir Ahmad) had not been proved.7. The respondents filed a second appeal before the High Court of Judicature at Allahabad in 1974, under the unamended Section 100 of the Code of Civil Procedure (for short "C.P.C."). Since there was no requirement to frame substantial question of law, the appeal was filed raising only grounds of challenge as enumerated under the unamended section. After filing of the second appeal bearing No.1139 of 1974, the Registrar of the Allahabad High Court passed an order on 20.05.1974, to the followingThereafter, the said appeal was not listed for hearing for about 6 years. On 13.03.1980, the appeal was listed for hearing under Order LXI, Rule 11. It was summarily dismissed for default with the observation that no question of law, much less substantial question of law, was involved. By this time, the C.P.C. was amended in the year 1976 whereby substantial question of law was required to be formulated in the memo of second appeal and by the High Court whilst admitting such appeal.9. As the second appeal was dismissed for default, the respondents moved an application for restoration of the appeal. The said appeal was restored on 7th May, 1980, after recalling the earlier order. That order readslearned counsel for the appellants. I recall my order dated 13.03.1980.Thereafter, the learned Single Judge by a separate order admitted the second appeal on the same day, with one word, "Admit". After establishment of the High Court of Uttarakhand at Nainital, the second appeal stood transferred to that High Court and was assigned a new number being Second Appeal No. 1269 of 2001.11. Under the amended Section 100 of C.P.C., substantial questions of law were required to be framed. Therefore, an application for amendment of the second appeal was filed before the High Court of Uttarakhand by the respondents (appellants in the said appeal) for adding substantial questions of law.12. The said application was opposed by the appellants. But, after hearing both the parties, the High Court allowed the application for amendment and observed that the court would frame questions of law at the time of hearing of the appeal. The said order dated 15th July, 2006, readsS.P. Dubey Learned Counsel for the appellant has submitted an Amendment Application before this Court and the copy of the said application has been served to Sri Arvind Vashisht learned Counsel for the respondents(s).It has been alleged that the substantial question of law as shown in para 2 of the Amendment Application may be added in the Memo of Appeal.Sri Vashist learned Counsel for the respondent objected that the questions mentioned in the Amendment application do not arise in the present appeal. No substantial question of law has been framed by this Court.The Court will have to frame the question afresh at the time of hearing. This point will be considered at the time of framing of substantial question of law.Amendment application is allowed. Let the amendment be incorporated within a week.List this case on 05.08.2006 fororder has not been challenged by the appellants.13. At the stage of hearing of the appeal, the Learned Single Judge of the High Court, being conscious of the earlier order dated 15th July, 2006, in the impugned judgment, has notedSection 100 of Code of Civil Procedure, 1908, was amended vide Act No. 104 of 1976 w.e.f. 01.02.1977 whereafter it became necessary to formulate the substantial question of law at the time of admitting the Second Appeal. Since the Second Appeal was presented before Allahabad High Court on 20.05.1974 and admitted there, as such at that point of time it was not necessary to formulate substantial question of law that is why it appears that in this appeal no substantial question of law was formulated. However, following question of law is involved in this appeal, which requires to beboth the Courts below erred in law in holding that Hiba (gift) by Akhtari Begum in favour of Zamir Ahmad was not valid for want of delivery of possession with the same, if so, itsThe High Court of Uttarakhand, by its impugned judgment and decree, allowed the appeal filed by the respondents herein by holding that the gift deed dated 31.05.1949 was valid and was accompanied by possession. The High Court also referred to the judgment dated 15.02.1978 passed by the High Court of Judicature at Allahabad in relation to a dispute between the respondents herein and another tenant, in which the High Court found the selfsame gift deed dated 31.05.1949 as valid. Significantly, the said decision was challenged before this Court. That petition for special leave was dismissed on 24.04.1978.15. Aggrieved, thehave challenged the impugned judgment, whereby the suit was decreed in favour of theand ordering eviction of thefrom the suit premises with consequential directions.

Reasoning:
It is an admitted position that the second appeal was filed in the High Court of Judicature at Allahabad in 1974 and was admitted by the Registrar of the High Court on 20.05.1974 with further direction to list it for hearing before the court under Order XLI, Rule 11 on 08.07.1974. The second appeal was in fact, taken up for such hearing by the learned Single Judge on 13.03.1980, albeit after the amendment of Section 100 of C.P.C. (vide Act 104 of 1974) which had already come into force on 01.02.1977. Themay be justified in relying on clause (m) of Section 97 (2) of the Act 104 of 1976 which uses the expression "appeal had been admitted" on or before 01.02.1977. In the present case, the order of admitting the second appeal was passed by the Registrar on 20.05.1974.On a conjoint reading of Rule 2 of Order XLII with Rule 11 of Order XLI, it is evident that the court is obliged to formulate substantial question of law on the day of hearing of the appeal (for admission under Rule 11) so that the second appeal can be heard on the question of law so formulated. The latter part of Rule 2 of Order XLII presupposes that the grounds of challenge by the appellants will be circumscribed by the substantial question of law so formulated. At the same time, it gives enough discretion to the High Court to permit the parties to argue any other ground, only with the leave of the court. The purport of Section 100 has already been delineated by this court in several decisions, after the Amendment Act of 1976. Thehave rightly invited our attention to those decisions.It is not necessary to multiply the authorities dealing with the purport of Section 100 of C.P.C. It is well settled that the High Court is obliged to formulate substantial question of law for its determination so that the arguments can proceed on that basis. In the present case, the High Court admitted the second appeal on 7th May, 1980 without formulating any substantial question of law. However, that order is not challenged by the appellants. Admittedly, thehad not even articulated any substantial question of law in the memorandum of appeal filed in 1974. Presumably because, at the relevant time in 1976, there was no requirement to formulate substantial question of law in the memo of appeal. However, that deficiency was sought to be cured by theby taking out a formal application for amendment of the memorandum of appeal and permission to urge the substantial questions of law framed in the amendment application.In other words, in the facts of the present case there has been substantial compliance of Section 100 of C.P.C., as amended. Significantly, the proviso to Section 100 (5) read with the latter part of Rule 2 of Order XLII enables the High Court to reframe the substantial question of law already formulated and even permit any other substantial question of law not formulated, after recording reasons, if it is satisfied that the case involves such question. This discretion has been bestowed on the High Court to ensure full, complete and effectual adjudication of all the matters in issue between the parties and to do complete justice. In our opinion, therefore, in the facts of the present case, there has been compliance of Section 100 of C.P.C. as also Order XLII of C.P.C. It is not open to theto now raise an issue ofof substantial question of law while admitting the appeal, having failed to challenge the order dated 07.05.1980 (admitting the second appeal) and dated 15.07.2006 (allowing theReverting to the second point raised by the appellantsthat the High Court should not have interfered with the finding of facts. This contention also does not commend to us. For, the High Court has analysed the entire issue in correct perspective and justly relied upon another decision of the High Court between theand another tenant in relation to the selfsame gift deed.In our opinion, the above view taken by the High Court is unexceptionable. The two courts below gave undue weightage to the fact that Akhtari Begum had reserved to herself the right to receive rent during her lifetime and that she did not issue attornment in favour of Zamir Ahmad in respect of the suit premises. Besides the reasons recorded by the High Court, in our opinion, on the plain language of the gift deed, it is evident that there is clear intention to handover possession to Zamir Ahmad, which is manifest from the following declaration in the giftAs a matter of fact, thehave not questioned the validity of the sale deed in favour of theThe title in the property having vested in Zamir Ahmad, who, in turn, transferred it to the plaintiff (respondents) by way of a sale deed. It is not open to theto question the ownership of thein respect of the suit premises. The factum which impressed the trial court and the first appellate court to hold that the gift deed in favour of Zamir Ahmad was invalid, namely, that donor (Akhtari Begum) did not request the tenant (defendant) to attorn to the donee (plaintiff), is also devoid of substance. For, this court in the case of Ambica Prasad v. Mohd. Alam And Another, 2015(3) R.C.R.(Civil) 85 : 2015(1) R.C.R.(Rent) 544 : 2015(3) Recent Apex Judgments (R.A.J.) 270 : (2015) 13 SCC 13   has enunciated that it is well settled that after the transfer of the landlords right in favour of the transferee, the latter gets all rights and liabilities of the landlord in respect of the subsisting tenancy. Section 109 of the Transfer of Property Act does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him and that attornment is not necessary to confer validity of the transfer of the landlords rights. Strikingly, even in this case, the transferor continued to collect the rent of the suit property from the tenant with the consent of the transferee after the execution of the exchange deed, until the transferee took over the affairs of the suit property. The court held that it will not debar the owner or transferee from filing a suit for eviction against the tenant.28. A priori, we are of the view that the judgment under appeal is adecision. It has justly relied upon another decision of the High Court (which has been upheld by this Court). That decision is between the same landlord and another tenant in respect of the selfsame gift deed. The gift deed has been held to be valid. It has also been held that the title of the property has been passed on to the respondents. Hence, it would be just and appropriate to follow the same view.