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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3391 OF 2015
(arising out of S.L.P.(C) NO.19487 of 2014)
Dr. Ambica Prasad Vs Md. Alam and another
Dated:April 08, 2015
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
was allowed and the eviction suit filed by the appellant was
dismissed.
3. The litigation between the parties commenced when
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.
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 3
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
him. The appellant contended that Abdul Karim had not only
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
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 4
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
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 5
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.
6. 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
5
Page 6
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
6
Page 7
difficulty. Allowing the appeal, the appellate court directed
the defendant Abdul Karim to vacate the suit property.
7. 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
7
Page 8
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.
8. Hence, the present appeal by special leave by the
plaintiff.
8
Page 9
9. While reversing the appellate court judgment, the High
Court in paragraph nos. 11 and 13 of the impugned order
held as under:-
“11. This revision petition arises out of a claim
of relief under Section 5 of the Assam Urban
Areas Rent Control Act, 1972. Unlike general
law governing tenancy, this Act confers a
statutory status on tenant and on attainment
of such status a tenant earns protection
guaranteed under Section 5 of this Act. No
tenant under this Act can be evicted without a
decree of Court. The landlord, therefore, is duty
bound to obtain a decree from court by
establishing the conditions precedent laid
down under Section 5 referred to above. The
foundation of such a suit is relationship of
landlord and tenant. The fact that there exists
a relationship of landlord and tenant between
the parties is the starting point for conferring
jurisdiction on a court to entertain and decide
the dispute. Such fact constituting landlordtenant
relationship, therefore, is a jurisdictional
fact and not a mere fact and as such High
Court, in exercise of revisional jurisdiction
under Section 115 of the Code of Civil
Procedure, is duty bound to examine as to
whether such a finding arrived at by the
learned Court or Courts below is tenable and/or
based on materials on record.
13. These aspects are no doubt relevant for
the purpose of adjudicating a jurisdictional fact
as to landlord tenant relationship in a
9
Page 10
proceeding under Section 5 of the Assam
Urban Areas Rent Control Act, 1972.
Apparently, these relevant aspects were not
considered by the learned appellate court. The
finding of the learned appellate court,
therefore, on issue No.4 is vitiated by nonconsideration
of relevant aspect and nonconsideration
of exhibits Ka, Kha and Gha. The
finding of the first appellate court that there is
a landlord and tenant relationship between the
plaintiff and the defendant is liable to be held
as perverse, inasmuch as, plaintiff has failed to
meet the challenges thrown by the defendant
by bringing on record exhibits Ka, Kha and Gha
and claiming that plaintiff never derived the
title from Ranjeet Prasad subsequent to
creation of tenancy in 2006. The decision of
appellate court, on issue No.4, therefore, is
liable to be interfered with. Once it is held that
there is no landlord and tenant relationship
between the plaintiff and the defendant, there
is no question of giving any decision on the
issue of default or bona-fide requirement.
Consequently, findings of the first appellate
court on these 2 (two) issues are also set aside.
In the result, civil revision petition is allowed
and the impugned appellate judgment is set
aside restoring the judgment of the learned
Trial court.”
10. We have heard learned counsel appearing for the
parties. Before coming to the conclusion, we would like to
10
Page 11
refer to the relevant provisions of the Assam Urban Area
Rent Control Act, 1972.
11. 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.”
12. 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:
11
Page 12
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.”
13. From the definition of ‘landlord’, it is clear that the
definition is couched in a very wide language, according to
12
Page 13
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.
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
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 14
“14…Therefore, while taking advantage of the
enabling provision, enacted in Section 11(1)(c),
the person claiming possession on the ground
of his reasonable requirement of the leased
building must show that he is a landlord in the
sense that he is owner of the building and has
a right to occupy the same in his own right. A
mere rent collector, though may be included in
the expression “landlord” in its wide amplitude,
cannot be treated as a landlord for the
purposes of Section 11(1)(c). This becomes
manifestly clear from the explanation
appended to the clause. By restricting the
meaning of expression “landlord” for the
purpose of Section 11(1)(c), the legislature
manifested its intention namely that landlord
alone can seek eviction on the ground of his
personal requirement if he is one who has a
right against the whole world to occupy the
building himself and exclude any one holding a
title lesser than his own. Such landlord who is
an owner and who would have a right to
occupy the building in his own right, can seek
possession for his own use. The latter part of
the section envisages a situation where the
landlord is holding the building for the benefit
of some other person but in that case landlord
can seek to evict tenant not for his personal
use but for the personal requirement of that
person for whose benefit he holds the building.
The second clause contemplates a situation of
trustees and cesti que trust but when the case
is governed by the first part of clause (c) of
sub-section (1) of Section 11, the person
claiming possession for personal requirement
must be such a landlord who wants possession
for his own occupation and this would imply
that he must be a person who has a right to
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 15
the purposes of Section 11(1)(c) the expression
‘landlord’ could, therefore, mean a person who
is the owner of the building and who has a right
to remain in occupation and actual possession
of the building to the exclusion of everyone
else. It is such a person who can seek to evict
the tenant on the ground that he requires
possession in good faith for his own
occupation. A rent collector or an agent is not
entitled to occupy the house in his own right.
Even if such a person be a lessor and,
therefore, a landlord within the expanded
inclusive definition of the expression landlord,
nonetheless he cannot seek to evict the tenant
on the ground that he wants to personally
occupy the house. He cannot claim such a right
against the real owner and as a necessary
corollary he cannot seek to evict the tenant on
the ground that he wants possession of the
premises for his own occupation. That can be
the only reasonable interpretation one can put
on the ingredients of clause (c) of Section 11(1)
which reads: “Where the building is reasonably
and in good faith required by the landlord for
his own occupation ...” Assuming that the
expression “landlord” has to be understood
with the same connotation as is spelt out by
the definition clause, even a rent collector or a
receiver of the property appointed by the court
in bankruptcy proceedings would be able to
evict the tenant alleging that he wants the
building for his own occupation, a right which
he could not have claimed against the real
owner. Therefore, the explanation to clause (c)
which cuts down the wide amplitude of the
expression “landlord” would unmistakably
show that for the purposes of clause (c) such
landlord who in the sense in which the word
‘owner’ is understood can claim as of right to
the exclusion of everyone, to occupy the
house, would be entitled to evict the tenant for
his own occupation.”
15
Page 16
16. 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
16
Page 17
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.
“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
17
Page 18
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.
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
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 19
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
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.
20. For the aforesaid reasons, this appeal is allowed and
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)
…………………………….J.
(S.A. Bobde)
New Delhi
April 08, 2015
Print Page
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3391 OF 2015
(arising out of S.L.P.(C) NO.19487 of 2014)
Dr. Ambica Prasad Vs Md. Alam and another
Dated:April 08, 2015
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
was allowed and the eviction suit filed by the appellant was
dismissed.
3. The litigation between the parties commenced when
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.
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 3
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
him. The appellant contended that Abdul Karim had not only
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
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 4
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
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 5
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.
6. 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
5
Page 6
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
6
Page 7
difficulty. Allowing the appeal, the appellate court directed
the defendant Abdul Karim to vacate the suit property.
7. 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
7
Page 8
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.
8. Hence, the present appeal by special leave by the
plaintiff.
8
Page 9
9. While reversing the appellate court judgment, the High
Court in paragraph nos. 11 and 13 of the impugned order
held as under:-
“11. This revision petition arises out of a claim
of relief under Section 5 of the Assam Urban
Areas Rent Control Act, 1972. Unlike general
law governing tenancy, this Act confers a
statutory status on tenant and on attainment
of such status a tenant earns protection
guaranteed under Section 5 of this Act. No
tenant under this Act can be evicted without a
decree of Court. The landlord, therefore, is duty
bound to obtain a decree from court by
establishing the conditions precedent laid
down under Section 5 referred to above. The
foundation of such a suit is relationship of
landlord and tenant. The fact that there exists
a relationship of landlord and tenant between
the parties is the starting point for conferring
jurisdiction on a court to entertain and decide
the dispute. Such fact constituting landlordtenant
relationship, therefore, is a jurisdictional
fact and not a mere fact and as such High
Court, in exercise of revisional jurisdiction
under Section 115 of the Code of Civil
Procedure, is duty bound to examine as to
whether such a finding arrived at by the
learned Court or Courts below is tenable and/or
based on materials on record.
13. These aspects are no doubt relevant for
the purpose of adjudicating a jurisdictional fact
as to landlord tenant relationship in a
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proceeding under Section 5 of the Assam
Urban Areas Rent Control Act, 1972.
Apparently, these relevant aspects were not
considered by the learned appellate court. The
finding of the learned appellate court,
therefore, on issue No.4 is vitiated by nonconsideration
of relevant aspect and nonconsideration
of exhibits Ka, Kha and Gha. The
finding of the first appellate court that there is
a landlord and tenant relationship between the
plaintiff and the defendant is liable to be held
as perverse, inasmuch as, plaintiff has failed to
meet the challenges thrown by the defendant
by bringing on record exhibits Ka, Kha and Gha
and claiming that plaintiff never derived the
title from Ranjeet Prasad subsequent to
creation of tenancy in 2006. The decision of
appellate court, on issue No.4, therefore, is
liable to be interfered with. Once it is held that
there is no landlord and tenant relationship
between the plaintiff and the defendant, there
is no question of giving any decision on the
issue of default or bona-fide requirement.
Consequently, findings of the first appellate
court on these 2 (two) issues are also set aside.
In the result, civil revision petition is allowed
and the impugned appellate judgment is set
aside restoring the judgment of the learned
Trial court.”
10. We have heard learned counsel appearing for the
parties. Before coming to the conclusion, we would like to
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refer to the relevant provisions of the Assam Urban Area
Rent Control Act, 1972.
11. 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.”
12. 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:
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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.”
13. From the definition of ‘landlord’, it is clear that the
definition is couched in a very wide language, according to
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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.
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
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:-
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Page 14
“14…Therefore, while taking advantage of the
enabling provision, enacted in Section 11(1)(c),
the person claiming possession on the ground
of his reasonable requirement of the leased
building must show that he is a landlord in the
sense that he is owner of the building and has
a right to occupy the same in his own right. A
mere rent collector, though may be included in
the expression “landlord” in its wide amplitude,
cannot be treated as a landlord for the
purposes of Section 11(1)(c). This becomes
manifestly clear from the explanation
appended to the clause. By restricting the
meaning of expression “landlord” for the
purpose of Section 11(1)(c), the legislature
manifested its intention namely that landlord
alone can seek eviction on the ground of his
personal requirement if he is one who has a
right against the whole world to occupy the
building himself and exclude any one holding a
title lesser than his own. Such landlord who is
an owner and who would have a right to
occupy the building in his own right, can seek
possession for his own use. The latter part of
the section envisages a situation where the
landlord is holding the building for the benefit
of some other person but in that case landlord
can seek to evict tenant not for his personal
use but for the personal requirement of that
person for whose benefit he holds the building.
The second clause contemplates a situation of
trustees and cesti que trust but when the case
is governed by the first part of clause (c) of
sub-section (1) of Section 11, the person
claiming possession for personal requirement
must be such a landlord who wants possession
for his own occupation and this would imply
that he must be a person who has a right to
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
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Page 15
the purposes of Section 11(1)(c) the expression
‘landlord’ could, therefore, mean a person who
is the owner of the building and who has a right
to remain in occupation and actual possession
of the building to the exclusion of everyone
else. It is such a person who can seek to evict
the tenant on the ground that he requires
possession in good faith for his own
occupation. A rent collector or an agent is not
entitled to occupy the house in his own right.
Even if such a person be a lessor and,
therefore, a landlord within the expanded
inclusive definition of the expression landlord,
nonetheless he cannot seek to evict the tenant
on the ground that he wants to personally
occupy the house. He cannot claim such a right
against the real owner and as a necessary
corollary he cannot seek to evict the tenant on
the ground that he wants possession of the
premises for his own occupation. That can be
the only reasonable interpretation one can put
on the ingredients of clause (c) of Section 11(1)
which reads: “Where the building is reasonably
and in good faith required by the landlord for
his own occupation ...” Assuming that the
expression “landlord” has to be understood
with the same connotation as is spelt out by
the definition clause, even a rent collector or a
receiver of the property appointed by the court
in bankruptcy proceedings would be able to
evict the tenant alleging that he wants the
building for his own occupation, a right which
he could not have claimed against the real
owner. Therefore, the explanation to clause (c)
which cuts down the wide amplitude of the
expression “landlord” would unmistakably
show that for the purposes of clause (c) such
landlord who in the sense in which the word
‘owner’ is understood can claim as of right to
the exclusion of everyone, to occupy the
house, would be entitled to evict the tenant for
his own occupation.”
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Page 16
16. 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
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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.
“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
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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.
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
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
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Page 19
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
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.
20. For the aforesaid reasons, this appeal is allowed and
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)
…………………………….J.
(S.A. Bobde)
New Delhi
April 08, 2015
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