The trial court noted that
PW3 Ranjeet Prasad had represented himself
to be the landlord in the agreement dated 20.05.2006 and in the rent
receipts and also filed a suit for eviction against one of the tenants in
the suit property in the capacity of a landlord.
PW3 was noted to have
never stated being the representative of the appellant or there being a
property exchange.
Even if it was assumed that he had received the
electricity charges, the appellant was held to have failed to prove himself
as the landlord as the appellant had not produced any evidence of having
received rent from any of tenants.
The mutation entry in his name was held to be not proof of title in the suit property.
Considering the deposition of Abdul Karim as DW1,
wherein he stated that the appellant had refused to
accept the rent from him, the trial court held that the appellant had
waived his right to be called a landlord.
The trial court held that PW3
Ranjeet Prasad was the landlord of the suit property under section 2(c) of
the Assam Urban Areas Rent Control Act, 1972 (in short, "Rent Act").
The
trial court dismissed the suit, rejecting plaintiff-appellant's contention
that Abdul Karim had defaulted in the payment of rent and that he needed
the suit property for bonafide use on the grounds that the appellant was
not the landlord of the suit property and Abdul Karim had been admittedly
depositing the rent in the court.
Appeal court reversed the finding of trial court
Aggrieved by the decision of the trial court, the appellant preferred
an appeal before the District Court.
The appellate court noted that the
ownership of the suit property has been proved in the light of the exchange
deed, which remained unchallenged by the defendant and supported by PW3
Ranjeet Prasad.
The appellate court further noted that the plaintiff served
notice requesting Abdul Karim to attorn the appellant as the landlord and
pay the rent to him.
The appellate court, therefore, held that the
appellant is the landlord of the suit property considering the deposition
of Abdul Karim that the appellant had refused to accept the rent from him,
the deposition of PW3 Ranjeet Prasad that he had directed all the tenants
to pay the rent to the appellant from March, 2007 onwards and the admission
of the respondent no. 1 (DW2) son of Abdul Karim, that he was paying the
electricity charges to the appellant.
Abdul Karim was held to have
defaulted in the payment of rent from March, 2007 onwards as he was
depositing rent in the court in the name of PW3 Ranjeet Prasad and not the
appellant despite knowing that the appellant was the landlord.
The
appellant also proved the need for bonafide use as he and his wife were
medical practitioners wanting to open a clinic in the rented premises and
as the defendant Abdul Karim owns another premises and would not hence be
facing difficulty.
Allowing the appeal, the appellate court directed the
defendant Abdul Karim to vacate the suit property.
High court - reversed the finding of Appellant court
Aggrieved respondents, therefore, preferred a revision petition
before the High Court.
The High Court observed that the appellate court has
not considered the tenancy agreements dated 20.12.1968 and 20.05.2006,
which were also not mentioned in the depositions of the appellant (PW1) and
Ranjeet Prasad (PW3) and the plaint.
The High Court upheld the trial court
findings regarding the various instances when PW3 represented himself as
the landlord.
Observing that there was no conveyance of title after the
execution of the agreement dated 20.05.2006, the High Court opined that the
appellant could not be held to be the owner or landlord of the suit
property on the basis of the exchange deed dated 23.04.1975.
The High
Court observed that the definitions of the terms 'tenant' and 'landlord'
were not related to ownership of the suit property.
PW3 Ranjeet Prasad was
held to be the landlord of defendant Abdul Karim considering the agreements
dated 20.12.1968 and 20.05.2006 and that Ranjeet Prasad had filed eviction
suits as a landlord.
Once landlord-tenant relationship existed between the
PW3 Ranjeet Prasad and the defendant Abdul Karim, the same should have been
determined only as per the provisions of the Rent Control Act.
Holding that
there was no need to give a finding regarding default in the payment of
rent or bonafide requirement when there was no landlord-tenant relationship
between the appellant and the defendant Abdul Karim, the High Court allowed
the revision petition filed by the respondents-tenants and dismissed the
suit for eviction filed by the appellant.
Apex court held that
Assam Urban Area Rent Control Act, 1972.
The expression "landlord" has been defined in Section 2(c) of the Rent Act
which reads as under:-
"(c) Landlord" means any person who is, for the time being receiving, or
entitled to receive rent in respect of any house whether on his own
account, or on account, or on behalf, or for the benefit of any other
person, or as a trustee, guardian, or receiver for any other person; and
includes, in respect of his subtenant, a tenant who has sub-let any house
and includes every person not being a tenant who from time to time derives
title under a landlord."
Section 5 of the Act creates a bar against the passing or execution of a
decree or order for ejection. Section 5 reads as under:-
"5. (1) No order or decree for the recovery of possession of any house
shall be made or executed by any Court so long as the tenant pays rent to
the full extent allowable under this Act and performs the conditions of the
tenancy:
Provided that nothing in this sub-section shall apply in a suit or
proceedings for eviction of the tenant from the house:-
(a) Where the tenant has done anything contrary to the provisions of clause
(m), clause (o) or clause (p) of Section 108 of the Transfer of Property
Act, 1882 or to the spirit of the aforesaid clause in areas where the said
Act does not apply, or
(b) Where the tenant has been guilty of conduct which is a nuisance of an
annoyance to the occupiers of the adjoining or neighbouring houses, or
(c) Where the house is bonafide required by the landlord either for
purposes of repairs or rebuilding, or for his own occupation or for the
occupation of any person for whose benefit the house is held, or whether
the landlord can show any other cause which may be deemed satisfactory by
the Court, or
(d) Where the tenant sublets the house or any part thereof or otherwise
transfers his interest in the house or any part thereof without permission
in writing from the landlord, or
(e) Where the tenant has not paid the rent lawfully due from him in respect
of the house within a fortnight of its falling due, or
(f) Where the tenant has built, acquired or been allotted a suitable
residence."
From the definition of 'landlord', it is clear that the definition is
couched in a very wide language, according to which not only the owner but
also any person receiving rent, whether on his own account or on behalf of
or for the benefit of any other person or as a trustee, guardian, or
receiver for any other person, is also the landlord.
However, for the purpose of eviction of a tenant on the ground of personal
need or reasonable requirement, one must show that he is the owner of the
building.
The High Court appears to have taken a very narrow meaning and
interpretation of the expression 'landlord' as defined in the Assam Rent
Act.
The finding recorded on that score to the effect that there exists no
relationship of landlord and tenant is not in accordance with the true
meaning of the term 'landlord'.
This aspect of the law has not been considered by the High Court.
On the contrary, the High Court proceeded on
the basis that the relationship of 'landlord and tenant' has not been
established although the ownership of the appellant by virtue of the deed
of exchange has neither been denied nor been disputed by the respondent-
tenant.
Even assuming for the sake of argument that the elder brother of
the appellant was acting as a landlord by receiving rent, it will not debar
the original owner from filing a suit for eviction not only on the ground
of personal necessity but also on the ground of default when it has come in
evidence that the respondent on many occasions went to the appellant to pay
rent but the latter refused to receive the rent.
Moreover, admittedly, the
respondent-tenant was paying electricity and other charges of the tenanted
premises to the appellant.
On the question of tenancy, both the trial court and the High Court
have not considered the provision of Section 109 of the Transfer of
Property Act.
"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.
From perusal of the aforesaid Section, it is manifest that after the
transfer of lessor's right in favour of the transferee, the latter gets all
rights and liabilities of the lessor in respect of subsisting tenancy. The
Section does not insist that transfer will take effect only when the tenant
attorns. It is well settled that a transferee of the landlord's rights
steps into the shoes of the landlord with all the rights and liabilities of
the transferor landlord in respect of the subsisting tenancy. The section
does not require that the transfer of the right of the landlord can take
effect only if the tenant attorns to him. Attornment by the tenant is not
necessary to confer validity of the transfer of the landlord's rights.
Since attornment by the tenant is not required, a notice under Section 106
in terms of the old terms of lease by the transferor landlord would be
proper and so also the suit for ejectment.
As noticed above, the respondent-tenant on many occasions approached
the appellant, the transferee, owner and the landlord to receive the rent.
Further, admittedly, the electricity charges of the tenanted premises were
paid by the tenant to the present appellant. Non-consideration of
subsequent tenancy agreement executed by the erstwhile owner namely the
brother of the appellant will not come in the way of the present appellant
to seek eviction of the tenant on the ground of personal necessity as also
on the ground of non-payment of rent. The approach of the High Court
reversing the appellate court's finding cannot be sustained in law.-2015 SC msklawreports
