RUKAYA KHATOON Vs. ADDITIONAL D J GORAKHPUR

JUDGEMENT

(1.) R. A. Sharma, J. Petitioner purchased the premises in question of which respondent No. 3 was the tenant, by registered sale deed on 11. 9. 1985. She also purchased the arrears of rent which were due from the tenant for the period before the date of purchase (11. 9. 1985 ). Petitioner thereafter filed the suit for ejectment of the tenant from the premiss and arrears of rent after terminating his tenancy. The trial court decreed the suit. Being aggrieved by it the tenant filed a revision which has been allowed by VIIIth Additional Dis trict Judge, Gorakhpur, on 3. 10. 1988. Being dissatisfied with the judgment of learned Additional Distt. Judge, petitioner has filed this writ petition.

(2.) A learned Single Judge by order dated 24. 1. 1992, transcribed on the order-sheet, connected this writ petition with writ petition No. 10562 of 1983, which has been referred to larger bench for deciding the point involved there in. This writ petition has accordingly been listed b '"ore us alongwith writ peti tion No. 10562 of 1983.

(3.) IN this connection reference may also be made to Section 109 of the Transfer of Property Act, which deals with the rights of the transferee. Proviso to this section has laid down, "that the transferee is not entitled to the ar rears of rent due before the transfer. . . . . . . " IN R. P. Thai v. Karam Chand (supra) this Court has held that: "section 109 deals with those rights of a transferee which he obtains as a mat ter of law. It does not prohibit transfer of claim for arrears of rent in favour of the transferee of the property. " Supreme Court in Girdharilal v. Hukam Singh," AIR 1977 SC 129, has held that a transferee is not ordinarily entitled to arrears of rent due before the transfer, unless there is a contract to the contrary. Relevant passage from the above decision of Supreme Court is reproduced below : "an objection based upon the proviso to section 109 of the Transfer of Proper ty Act was, we think rightly, disposed of by the High Court as follows: "the next objection is that under the proviso to section 109 of the Transfer of Property Act the transferee is not entitled to arrears of rent due before the transfer. IN our opinion he is ordinarily not so entitled unless there is a contract to the con trary. There was an express contract to the contrary contained in the compromise petition which was incorporated in the compromise decree passed by the Court. " IN the instant case also t. ne. petitioner has purchased the right to recover the arrear of rent due before the transfer and there is thus an agreement to the contrary to what has been laid down in section 109 of the Transfer of Property Act. Provision of Section 109 will, therefore, not come in the way of the petitioner in recovering the arrears of rent due before the date of sale.