AMBICA PRASAD vs. MD. ALAM

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Dr. Ambica Prasad …..Appellant(s) Versus Md. Alam and another ..Respondent(s) JUDGMENT M. Y. EQBAL, J. Leave granted. JUDGMENT 2. This appeal by special leave is directed against the judgment and order dated 04.04.2014 of the Gauhati High Court whereby the revision petition filed by the respondents 1 Page 1 was allowed and the eviction suit filed by the appellant was dismissed.

the appellant filed an eviction suit against Abdul Karim, the father of the respondents. The case of the appellant was that he had became the owner of the suit property by virtue of two exchange deeds executed on 23.04.1975 with his brother PW3 Ranjeet Prasad, the original owner. In 1968, before the execution of the said exchange deed, PW3 Ranjeet Prasad was said to have let one of the rooms in the building in the suit property to Rahim Baksh, the father of Abdul Karim and the grandfather of the respondents. JUDGMENT However, even after the execution of the exchange deed, PW3 Ranjeet Prasad was stated to have continued collecting rent from the tenants of the suit property including Rahim Baksh and on Rahim’s death, his son Abdul Karim till February, 2007 with the consent of the appellant. In 2007, 2 Page 2 the appellant was stated to have taken over the affairs of the suit property, mutated his name as the owner and requested Abdul Karim to execute a fresh agreement with

failed to execute a fresh agreement but also failed to pay the rent except for the electricity bills. The appellant also cited bonafide need of the suit property for the purpose of opening a medical clinic being a retired surgeon. The appellant hence prayed for the eviction of Abdul Karim. 4. Defendant Abdul Karim filed written statement denying all the allegations and alleged that PW3 Ranjeet Prasad had executed tenancy agreement dated 28.12.1968 in favour of JUDGMENT Rahim Baksh and later on executed tenancy agreement dated 20.05.2006 in his favour. He denied being informed of the exchange deed dated 23.04.1975 and contended that Ranjeet Prasad was his landlord and not the appellant. The defendant Abdul Karim alleged that since they refused to 3 Page 3 accept the rent from him from March, 2007 onwards, the defendant deposited the rent in court. The defendant prayed for the dismissal of the suit. 5. 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 JUDGMENT 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 4 Page 4 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

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. 6. Aggrieved by the decision of the trial court, the JUDGMENT 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 5 Page 5 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

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 JUDGMENT 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 6 Page 6 difficulty. Allowing the appeal, the appellate court directed the defendant Abdul Karim to vacate the suit property.

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 JUDGMENT 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 7 Page 7 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

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. JUDGMENT 8. Hence, the present appeal by special leave by the plaintiff. 8 Page 8 9. While reversing the appellate court judgment, the High Court in paragraph nos. 11 and 13 of the impugned order held as under:-

JUDGMENT 13. These aspects are no doubt relevant for the purpose of adjudicating a jurisdictional fact as to landlord tenant relationship in a 9 Page 9

JUDGMENT 10. We have heard learned counsel appearing for the parties. Before coming to the conclusion, we would like to 10 Page 10 refer to the relevant provisions of the Assam Urban Area Rent Control Act, 1972.

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.” 12. Section 5 of the Act creates a bar against the passing or JUDGMENT 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: 11 Page 11 Provided that nothing in this sub-section shall apply in a suit or proceedings for eviction of the tenant from the house:—

(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 JUDGMENT (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.” 13. From the definition of ‘landlord’, it is clear that the definition is couched in a very wide language, according to 12 Page 12 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

14. 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. 15. A similar question came for consideration before a three Judges Bench of this Court in the case of M.M. Quasim vs. Manohar Lal Sharma & Ors. , AIR 1981 SC 113. The matter related to the Bihar Building (Lease, Rent JUDGMENT and Eviction) Control Act, 1947. In the Bihar Rent Act, the definition of expression ‘landlord’ is similar as that of Assam Rent Act. Further the ground for eviction of personal necessity is also similar to that of the Assam Act. Considering these provisions, this Court held:- 13 Page 13

JUDGMENT remain in occupation against the whole world and not someone who has no subsisting interest in the property and is merely a rent collector such as an agent, executor, administrator or a receiver of the property. For 14 Page 14

JUDGMENT 15 Page 15 16. The High Court appears to have taken a very narrow meaning and interpretation of the expression ‘landlord’ as

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 JUDGMENT 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 16 Page 16 refused to receive the rent. Moreover, admittedly, the respondent-tenant was paying electricity and other charges of the tenanted premises to the appellant. 17. 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.

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18. 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 JUDGMENT 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 18 Page 18 by the transferor landlord would be proper and so also the suit for ejectment. 19. 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 JUDGMENT 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. 19 Page 19 20. For the aforesaid reasons, this appeal is allowed and JUDGMENT the impugned judgment and order passed by the High Court is set aside. However, there shall be no order as to costs. …………………………….J. (M.Y. Eqbal) 20 Page 20 …………………………….J. (S.A. Bobde) New Delhi April 08, 2015 JUDGMENT 21 Page 21