High Court
Case Details
RSA 49/2004 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the defendants is directed against the judgment and decree dated 26th February, 2004 passed by the learned Civil Judge (Senior Division) No.3, Ka mrup at Guwahati in Title Appeal No.25/2003, allowing the appeal preferred by th e present respondent/ plaintiff, by setting aside the judgment and decree dated 25th March, 2003 passed by the learned Civil Judge (Junior Division) No.1, Kamru p at Guwahati in Title Suit No.177/1992, whereby and whereunder the suit of the present respondent/plaintiff has been dismissed. [2] The respondent as plaintiff initially instituted the aforesaid s uit against the present appellant No.1, as defendant, for his ejectment from the house described in Schedule-B to the plaint and also for recovery of Rs.6,400/- , being the arrear rent from 1st April, 1991 to 30th July, 1992, contending inte r alia that though the defendant was the tenant under the original owner, namely , Md. Rafiul Haque, the rent payable @ Rs.400/- per month has not been paid by t he defendant to the plaintiff, after transfer of the ownership of the suit premi ses by way of gift deed dated 20th May, 1988 by Md. Rafiul Haque in favour of th e plaintiff. It has further been contended that the suit property also requires
Facts
for the bonafide use and occupation by the plaintiff. [3] The defendant, namely, Md. Fidaul Haque @ Raju, filed written st atement contending inter alia that the possessory right over the suit premises w as purchased by his wife Mustt. Sultana Begum from the original owner, namely, M d. Rafiul Haque, and hence the right, title and interest of the suit land vest o n his wife. [4] The plaintiff then filed an application seeking amendment of the pleadings in the plaint, under Order 6 Rule 17 CPC, which was allowed by the tr ial Court. After amendment, the plaintiff has impleaded Mustt. Sultana Begum as defendant No.2 in the suit and prays for declaration of right, title and interes t, for ejectment of the defendants and also for recovery of arrear rent of Rs.6, 400/-, contending inter alia that she has acquired right, title and interest ove r the suit land by virtue of the gift deed dated 20th May, 1988 (Exhibit-1) exec uted by Md. Rafiul Haque in favour of the plaintiff. It has further been conten ded that neither the defendant No.1 nor the defendant No.2 has any right, title and interest over the suit land, who were tenants under the original landlord an d have not paid the rent to the plaintiff after transfer of the ownership of the suit land alongwith the house standing thereon, which is under occupation of th e defendants. The defendant No.2 thereafter, filed the written statement, conten ding inter alia that she has acquired right, title and interest over the suit la nd by virtue of purchase of possessory right on 1st April, 1986 (Exhibit-Ka) and since she is occupying the land and the house standing thereon of her own right , there is no question of having any relationship of the landlord and tenant bet ween the plaintiff and defendants and hence, there is no question of payment of any rent. The claim of defaulter alongwith the claim for bonafide requirement h ave accordingly been denied. [5] The plaintiff, in order to prove her case, has examined herself and proved a number of documents including the gift deed dated 20th May, 1988 (E xhibit-1); order of mutation dated 27th August, 1988 (Exhibit-2); the revenue pa ying receipts (Exhibit-3) and the house tax payment receipts issued by the Gauha ti Municipal Corporation (Exhibit-4). The defendants have examined 5(five) witne sses, which includes the defendant Nos.1 and 2 as DWs-1 and 2 and the original o wner of the suit land, i.e. Md. Rafiul Haque as DW-3. [6] The trial Court, upon appreciation of the evidence on record, bo th oral and documentary, dismissed the suit of the plaintiff refusing to pass a decree declaring right, title and interest even though it has been held that Md. Rafiul Haque has transferred right, title and interest over the suit land in fa vour of the plaintiff. The decree for ejectment has also not been passed, as th e plaintiff, according to the trial Court, could not prove the attornment and al so the relationship of the landlord and tenant between the plaintiff and the def endants. [7] Being aggrieved, the plaintiff preferred the aforesaid appeal, w hich has been allowed vide judgment and decree dated 26th February, 2004, decree ing the suit of the plaintiff declaring her right, title and interest and also e viction of the defendants from the suit property. The first appellate Court has held that since the plaintiff could prove the ingredients to constitute a valid gift, under the Mahomedan Law, the plaintiff has acquired right, title and inte rest over the suit land. It has also been held that though the plaintiff could not prove that there was attornment of the plaintiff by the defendants as landlo rd and also failed to proved that there was relationship of landlord and tenant between them, the decree for ejectment, however, has been passed, on the ground that the defendants having failed to establish the claim of transfer of possesso ry right, their status is that of a trespasser. Hence, the present appeal. [8] The appeal was admitted for hearing vide order dated 16th March, 2004 on the following substantial questions of law:- (a) Whether on the facts and circumstances of the case, the learned first appell ate Court was justified in coming to finding that in the absence of delivery of possession? (b) Whether on the facts and circumstances of the case, the learned lower appell ate Court was justified in declaring that the respondent has acquired right, tit le and interest over the suit property by merely mutating her name in respect of her suit property that too on the basis of gift deed wherein the essential cond ition of delivery of possession as required under the provisions of law was not fulfilled? (c) Whether on the facts and circumstances of the case, the learned first appell ate Court was justified in declaring that the appellants are trespassers and lia ble to be ejected from the Schedule B premises although the same was not an issu e between the parties? (d) Whether on the facts and circumstances of the case, the learned first appell ate Court was justified in decreeing the suit in favour of the plaintiff on the ground that the appellants could not prove their title in respect of the suit pr operties although the same was not an issue between the parties nor framed by th e Court? (e) Whether on the facts and circumstances of the case, the learned Court below was justified in holding that in absence of attornment of tenancy there can be d elivery of possession as required under the provisions of the Mohammedan law to constitute a valid gift? (f) Whether on the facts and circumstances of the case, the learned Court below was justified in coming to a finding that in the event of a contest between unre gistered document and registered document, the unregistered document will not pr evail although the same is accompanied by delivery of possession? (g) Whether on the facts and circumstances of the case, the learned Court below was justified in relying on the judgment and decree passed in Title Suit No.27/1 993 wherein the appellants were not parties to the said suit? (cid:29) [9] I have heard Mr. D. Das, learned senior counsel appearing for th e appellants/defendants and Mr. G.N. Sahewalla, learned senior counsel appearing for the respondent/plaintiff. [10] Mr. Das, learned senior counsel referring to the judgment passed by the first appellate Court and also the evidence adduced by the parties, apar t from the provisions of the Mahomedan Law relating to the gift, has submitted t hat to constitute a valid gift under the Mahomedan Law, since three ingredients, i.e. (i) a declaration of gift by the donor; (ii) an acceptance of the gift, ex press or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 15 0, are required to be proved, in the instant case, the delivery of possession of the subject of the gift by the donor to the donee having not been proved, the a lleged gift by the donor to the donee vide Exhbit-1 gift deed is not valid and h ence the appellate Court ought not to have decreed the suit of the plaintiff dec laring her right, title and interest over the suit land. [11] The learned senior counsel further submits that even if all the three necessary ingredients to constitute a valid gift under the Mahomedan Law e xist, since the plaintiff’s suit is for eviction of the defendants from the suit property on the ground of defaulter and bonafide requirement, contending that t here was relationship of landlord and tenant between them, apart from the suit f or declaration of right, title and interest by virtue of gift, and as it has bee n held by the first appellate Court that there was no attornment of the plaintif f by the defendants as landlord and also there was no relationship of landlord a nd tenant between them, there is no question of being in default in payment of rent and hence the first appellate Court ought not to have passed a decree of ev iction, which amounts to a decree of recovery of khas possession, which ought no t to have passed there being no prayer made in the plaint for recovery of khas p ossession by evicting the defendants therefrom and hence in fact the suit of the plaintiff is hit by Section 34 of the Specific Relief Act, 1963. In support of the contention that the suit of the plaintiff is hit by Section 34 of the Speci fic Relief Act, 1963, the learned senior counsel has placed reliance on the deci sion of the Apex Court in Vinay Krishna -Vs- Keshav Chandra & Anr. reported in A IR 1993 SC 957, apart from the judgment passed by this Court on 4th September, 2 013 in RSA No.33/2003 (Nani Bhushan Dey & Anr. -Vs- Bijoy Kumar Ganguly & Ors.). [12] The learned senior counsel also submits that the plaintiff havin g claimed that the suit property has been transferred in her favour by way of gi ft (Exhibit-1), in the suit filed by her for eviction of the defendants on the g round of defaulter and bonafide requirement, the plaintiff is required to prove the attornment, which having not been proved, the first appellate Court ought no t to have passed the decree for eviction of the defendants, even if it is found that the plaintiffs have acquired right, title and interest by virtue of the gif t. [13] Mr. Sahewalla, learned senior counsel appearing for the responde nt/plaintiff, on the other hand, supporting the decree passed by the appellate C ourt has submitted that since the plaintiff could prove the existence of three e ssential conditions of the gift, as required under the Mahomedan Law, the first appellate Court has rightly decreed the suit of the plaintiff declaring her righ t, title and interest over the suit land. Referring to Sub-Section (2) of Secti on 5 of the Assam Urban Rent Control Act, 1972 (in short, (cid:28)1972 Act (cid:29)), Mr. Sahew alla, learned senior counsel further submits that there is no question of attorn ment, in so far as it relates to the proceeding under the 1972 Act, as the tenan t would get protection from eviction as stipulated under Sub-Section (1) of Sect ion 5 of the said Act, provided the tenant pays the rent lawfully payable to the landlord, which includes the transferee landlord, within the time agreed upon. Referring to the deposition of witnesses examined, more particularly, the depos ition of defendant Nos.1 and 2 (DWs-1 and 2), Mr. Sahewalla further submits that in their deposition, they have admitted that they had knowledge about the trans fer of the ownership of the property by the original landlord, namely, Md. Rafiu l Haque, in favour of the plaintiff by gift and hence, they will be protected fr om eviction under the provisions of the 1972 Act, only if they discharge the bur den of proving that they have either paid the rent to the transferee landlord or deposited the same in Court within a fortnight of its falling due, as required under Sub-Section (4) of Section 5 of the said Act and on being refused to accep t the rent by the landlord. The learned senior counsel, therefore, submits that the ultimate decree passed by the first appellate Court needs no interference. [14] In reply, Mr. Das, learned senior counsel for the appellant subm its that the respondent/plaintiff having not filed either an appeal or cross-obj ection under Order XLI Rule 22 CPC, against the finding recorded by the first ap pellate court relating to the attornment and having no relationship of landlord and tenant, the respondent/plaintiff cannot challenge the finding recorded by th e first appellate Court in that regard. [15] I have considered the submissions advanced by the learned senior counsel appearing for the parties, and also perused the judgments and decrees p assed by both the Courts below. I have also read the evidence with a view to de cide the appeal finally in this Court so as to cut short the life of the litigat ion, which is already 21 years old, instead of remanding the same to the first a ppellate Court for giving a fresh decision. [16] Section 149 of the Mahomedan Law stipulates the three essentials to constitute a valid gift. They are - (i) a declaration of gift by the donor, (ii) an acceptance of the gift, express or implied, by or on behalf of the done e, and (iii) delivery of possession of the subject of the gift by the donor to t he donee as mentioned in Section 150. When all these three conditions are fulfi lled, the gift is complete. Section 150 of the Mahomedan Law provides that it i s essential to the validity of a gift that there should be delivery of possessio n as the subject of the gift is susceptible of. Section 152 of the said Act prov ides that a gift of immovable property, of which the donor is in actual possessi on, is not complete, unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It a lso provides that a gift of immovable property, which is in the occupation of te nants, may be completed by a request by the donor to the tenants to attorn to th e donee or by delivery of the title deed or by mutation in the revenue register or the landlord’s sherista. In the case in hand, the donor, namely, Md. Rafiul Haque, execut [17] ed the gift deed (Exhibit-1), which has been registered under the provisions of the Indian Registration Act, 1908. There is no dispute in the case in hand rela ting to declaration of the gift by the donor and acceptance of the gift, express ed or implied, by or on behalf of the donee. The question, which has been raised , is whether there was delivery of possession. Admittedly, the suit property wa s in possession of the defendants, who were admittedly tenants under the donor, namely, Md. Rafiul Haque. The plaintiff could also prove that the title deed, n amely, the gift deed, has been delivered to the plaintiff, i.e. the donee, and h er name has been mutated in the revenue records, which has been proved and marke d as Exhbiit-2. That being the position, the third essential condition to consti tute a valid gift under the Mahomedan Law has also been proved by the plaintiff and hence, the first appellate Court has rightly decreed the suit of the plainti ff declaring her right, title and interest over the suit land. [18] The next question which requires determination is whether the fi rst appellate Court was justified in passing a decree of eviction of the defenda nts as trespasser, upon holding that the plaintiff could not prove the attornmen t and there is no relationship of landlord or tenant. [19] Before proceeding further, the provisions of Order XLI Rule 22 a nd Rule 33 of the CPC may be noticed. Sub-Rule (1) of Rule 22 of Order XLI CPC provides that any respondent, though he may not have appealed from any part of t he decree, may not only support the decree but also state that the finding again st him in the Court below in respect of any issue ought to have been in his favo ur, and may also take any cross objection to the decree which he could have take n by way of appeal, provided he has filed such objection in the appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow. [20] Order XLI Rule 33 defines the power of the Court of appeal. It provides that the appellate Court shall have power to pass any decree and make a ny order which ought to have been passed or made and to pass or make such furthe r or other decree or order as the case may require, and this power may be exerci sed by the Court notwithstanding that the appeal is as to part only of the decre e and may be exercised in favour of all or any of the respondents or parties, al though such respondents or parties may not have filed any appeal or objection an d may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, a lthough an appeal may not have been filed against such decrees. It also provide s that the appellate Court shall not make any order under Section 35A, in pursua nce of any objection on which the Court from whose decree the appeal is preferre d has omitted or refused to make such order. [21] Plain reading of the aforesaid provisions of Order XLI Rule 33 C PC amply makes it clear that the appellate Court is empowered to make whatever o rder it thinks fit, not only between the appellant and the respondent but also b etween a respondent and a respondent. It empowers the appellate Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal b ut also to give such other reliefs to any of the respondents, as the case may re quire. The power conferred on the appellate Court under the said provision of l aw, however, is discretionary and cannot be exercised to nullify a decree, which has already attained its finality, having not been challenged in the higher for um. The appellate Court in exercise of the power conferred by Order XLI Rule 33 CPC, in an appropriate case, even grant a decree, even if a party to the appeal , who could have file the cross-objection under Order XLI Rule 22 has not done s o. Reference in this regard may be made to a judgment passed by the Apex Court in Pannalal Vs. Stae of Bombay reported in AIR 1963 SC 1516. As discussed above, instant appeal has been preferred by the def [22] endants challenging the judgment and decree passed by the first appellate Court. The first appellate Court having not discussed the entire evidences on record a nd also as without considering the provisions contained in Sub-Section (2) of Se ction 5 of the 1972 Act recorded the finding that there was no attornment and he nce there was no relationship of landlord and tenant, though the provisions of S ub-Section (2) of Section 5 of the said Act would prevail upon the requirement o f attornment under the provisions of the Transfer of Property Act, the 1972 Act being a special legislation, this Court normally should remand the appeal for fr esh decision by the first appellate Court, based on the evidence available on re cord as well as the provisions of the 1972 Act, which has not been done in the i nstant case and instead this Court proceeded to perused the evidence available o n record, apart from the provisions of the 1972 Act, so as to cut short the life of the litigation. Hence, it is in this circumstance, this Court proceeded to decide the appeal by exercising the power under Order XLI Rule 33 CPC. [23] To appreciate the question, which has been noticed above, I have gone through the evidence adduced by the parties, apart from the pleadings. As noticed above, the plaintiff’s case is that the defendants were originally tenan ts under the original landlord, namely, Md. Rafiul Haque, who has donated the su it premises by way of gift deed dated 20th May, 1988 (Exhibit-1) in favour of th e plaintiff and though the defendants paid the rent upto 31st March, 1991 to the original landlord, rents payable from 1st April, 1991 has not been paid. The d efendants in the written statements have denied the relationship of the landlord or tenant and have set up the plea that they have acquired right, title and int erests by virtue of purchase of possessory right vide deed dated 1st April, 1986 (Exhibit-Ka). The defendants, however, cannot claim right over the property on the basis of Exhibit-Ka, the same being not registered, though compulsorily reg isterable under the Transfer of Property Act as well as Registration Act. The d efendants, who were examined as DWs-1 and 2, in their examination-in-chief have also though denied the relationship of the landlord and tenant between the origi nal landlord, Md. Rafiul Haque and them, they, however, during cross-examination have admitted that they were monthly tenant under Rafiul Haque with rent of Rs. 200/- and not Rs.400/-, as claimed by the plaintiff. The defendants, therefore, have admitted that they were the tenants under the original landlord, namely, M d. Rafiul Haque. The defendants, namely, DWs-1 and 2, during cross-examination h ave also admitted that they knew about the transfer of the ownership by Md. Rafi ul Haque in favour of the plaintiff by means of a gift deed. The said gift deed in fact was proved by the defendant No.1 and marked as Exhibit-Cha. It is, the refore, evident that it was within the knowledge of the defendants that the owne rship of the suit land has been transferred, by way of gift by Md. Rafiul Haque in favour of the plaintiff. Sub-Section (1) of Section 5 of the 1972 Act gives a protection [24] to the tenant from eviction, subject to fulfillment of the conditions stipulated therein. It provides that 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 the rent to the full extent allowable under the Act or performs the conditions of t he tenancy. Sub-Section (4) of Section 5 provides that in case the landlord refu ses to accept the lawful rent offered by his tenant, the tenant may within a for tnight of its becoming due, deposit in Court the amount of such rent together wi th process fees. Hence, a decree for ejectment of the tenant on the ground of d efaulter cannot be passed by the Court or rent control authority, under the prov isions of the 1972 Act, so long the tenant either pays the rent to the landlord lawfully due and within the time agreed upon or deposit the same in Court, as re quired under Sub-Section (4) of Section 5 of the 1972 Act. It is an established position of law that in a suit for eviction of a tenant on the ground of defaul ter, the burden lies on the defendant/tenant to prove that he has either paid th e rent to the landlord within the time allowed or deposited the same in Court as required under Sub-Section (4) of Section 5 of the said Act. [25] Sub-Section (2) of Section 5 of the aforesaid Act provides that the transfer of interest of the landlord in the house shall not affect the right of the tenant provided the tenant pays rent allowable under the Act to the tran sferee. Hence, protection from eviction as stipulated in Sub-Section (1) of Sec tion 5 would be available to the tenant only if the tenant pays the rent allowab le under the provisions of the said Act to the transferee landlord, provided of course, the tenant had the knowledge about the transfer. One cannot expect a te nant that he should search for the landlord for payment of the rent when the ten ant does not know about the transfer. [26] In the instant case, as discussed above, the defendant Nos.1 and 2 (DWs-1 and 2) in their deposition, in clear terms have admitted that they had the knowledge of the transfer, i.e. gift deed executed by Md. Rafiul Haque in f aovur of the plaintiff and hence they had the knowledge about transfer of the ow nership of the land together with the house standing thereon by the original lan dlord Md. Rafiul Haque in favour of the transferee landlord, namely, the plainti ff. It has also come out from the evidence of DWs-1 and 2 that they have not pa id the rent either to the original landlord, namely, Md. Rafiul Haque, or to the plaintiff with effect from 1st April, 1991. Since the burden to prove that the y are not defaulters is on the defendants, which burden they could not discharge and in fact have admitted that rent from 1st April, 1991 was not paid, the defe ndants are defaulter in respect of payment of rent. [27] In view of what has been discussed above, I am of the view that the first appellate Court was not justified in holding that there was no attornm ent, such attronrment having not been required under the provisions of the 1972 Act, more so when the defendants had knowledge about the transfer. The defendan ts having admitted that they were tenants under Mr. Rafiul Haque, the original l andlord and failed either to pay the rent to the transferee landlord, i.e. plain tiff, or deposit the same in Court, on being refused to accept, so as to get pro tection from eviction as stipulated in Sub-Section (1) of Section 5 of the 1972 Act, they are not protected from eviction and hence, liable to be evicted.
Legal Reasoning
[28] In view of the aforesaid discussion, the question of maintainabi lity of the suit, being hit by Section 34 of the Specific Relief Act, 1963, need not be gone into in the present case and consequently, the judgment passed by t he Apex Court in Vinay Krishna (supra) and by this Court in Nani Bhushan Dey (su pra) have not been discussed. [29] [30] ghout. [31] The appeal is accordingly dismissed. The parties, however, are directed to bear their own costs throu The Registry is directed to send down the records.