BISWAS CHANDRA HARRIS Vs. SHAMBHU DUTT JOSHI

JUDGEMENT

(1.) This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 14-12-1973, passed in Civil Appeal No. 59 of 1969 (N) by the learned District Judge, Kumaun, Nainital, whereby said appeal was dismissed with costs, confirming the judgment and decree dated 26-6-1969, passed in Suit No. 52 of 1966 by the then Munsif, Nainital, dismissing the suit for judgment of the defendant and recovery of arrears of rent. 2. I heard learned Counsel for the parties at length and perused the entire record. 3. Brief facts of the case are that as per the plaint case, house No. 51 situated in Mohalla Sakahawat Ganj, Haldwani (District Nainital) alongwith the compound appurtenant thereto, earlier belonged to one Sheikh Zamir Ahmad and Shambhu Dutt Joshi (defendant) was his tenant in six rooms with toilet, kitchen and two verandahs of the said house on rent at the rate of Rs. 8. 33 per month. On 11-10-1965, plaintiffs Dr. B. C. Harris and Mrs. Isabella Haris purchased the house from said Sheikh Zamir Ahmad and thereafter defendant became tenant of the plaintiffs (appellants) on the same rate of rent. On 15-10- 1965, through a notice, the defendant denied title of the plaintiffs, as such the tenancy stood determined under Section 111 of Transfer of Property Act, 1882. It is alleged that the defendant created nuisance in the house by fixing poles around the house and fencing the same with wire. Ultimately vide notice dated 21-12-1965, the tenancy of the defendant was terminated by the plaintiffs under Section 106 read with Section 111 of Transfer of Property Act, 1882 w. e. f. 21-1-1966. And thereafter the Suit No. 52 of 1966 was Instituted for ejectment of the defendant from the premises in question and also for recovery of arrears of rent to the tune of Rs. 45. 18 and mesne profits at the rate of Rs. 8. 33 per month from him. 4. The defendant contested the suit and filed his written statement. In the first para of the written statement itself not only the ownership of plaintiff is denied but the title of Sheikh Zamir Ahmad is also denied. It is pleaded in the written statement that Zamir Ahmad had no right to transfer the building in suit. In para 5 of the written statement, it was pleaded by the defendant that the property belongs to the State and the answering defendant is in possession for more than 15 years of the property as such, plaintiffs have no light to terminate the tenancy of the defendant nor is he entitled to any of the reliefs claimed as the relationship of landlord and tenant is denied between the parties. Apart from this, legal pleas that of jurisdiction, suit being undervalued and as to insufficiency of the Court fee paid, are also raised. Lastly it is pleaded that the land in question is governed by provisions of U. P. Tenancy Act. 5. The replica was filed by the plaintiff in which details of the property were further described. It is stated in replica that pleas taken in the written statement are wrong, the property is not governed by the U. P. Tenancy Act nor it ever recorded in the name of Daan Singh, as alleged in the amended written statement. 6. The trial Court after going through the original and amended pleadings of the parties, framed following thirteen issues in the suit: (1) (i) Whether the plaintiff is the landlord of the premises in suit? (ii) Whether the defendant is estopped from denying the title of plaintiffs? (2) Whether the defendant has denied the title of the landlord and renounced his character as tenant? (3) Whether the notice to quit is invalid? (4) Whether the rent of the property in suit was Rs. 8. 33 per month as alleged? (5) Whether the land in suit is owned by the State of Uttar Pradesh? If so, its effect? (6) To what amount of rent, if any, is the plaintiff entitled? (7) Whether the plaintiff is entitled to damages? If so, to what extent? (8) To what relief, if any, is the plaintiff entitled? (9) Whether this Court has no jurisdiction to try the suit? (10) Whether the suit property has not been correctly described? If not, its effect? (11) (i) Whether the suit is undervalued, as alleged? (ii) Whether Court fee paid is insufficient? (12) Whether the Court has no pecuniary jurisdiction to try the suit? (13) Whether the land in suit is part of tenanted accommodation? If not, its effect? 7. Trial Court after recording the evidence and hearing the parties found that it had jurisdiction to try the suit. It further found that suit was properly valued and Court fee paid was sufficient. It further found that land appurtenant to the building was not part of tenanted accommodation. However, the notice issued by the plaintiff was found to be valid. The trial Court agreed with the plaintiffs that the defendant was tenant on monthly rent of Rs. 8. 33. It further held that the defendant had denied the title of the plaintiffs but since it found that plaintiffs are not owners or landlords of the house in question, as such they are not entitled to any amount of rent or mesne profits or decree of ejectment as against the defendant. 8. Against the judgment and decree dated 26-6-1969, passed by the then learned Munsif, Nainital, the plaintiffs preferred Civil Appeal No. 59 of 1969 (N) and after hearing the parties, the same is dismissed by lower appellate Court holding that Zamir Ahmad had no title to transfer the house to the plaintiffs. It further agreed with the trial Court that since Akhtari Begum was the original owner and landlady of the house in question and alleged Hiba (gift) made by her in favour of Zamir Ahmad, was not accompanied with possession, as such no ownership stood transferred to him (Zamir Ahmad) through said Hiba. Aggrieved by said judgment and decree dated 14-12-1973, passed in Civil Appeal No. 59 of 1969 (N), this second appeal was preferred by the plaintiff before Allahabad High Court in the year 1974, from where this appeal is received by transfer to this Court under Section 35 of U. P. Reorganisation Act, 2000, for its disposal. 9. Section 100 of Code of Civil Procedure, 1908, was amended vide Act No. 104 of 1976, w. e. f. 1-2-1977, where-after it became necessary to formulate the substantial question of law at the time of admitting the second appeal. Since this second appeal was presented before Allahabad High Court on 20-5-1974 and admitted there, as such at that point of time it was not necessary to formulate substantial question of law that is why it appears that in this appeal no substantial question of law was formulated. However, following question of law is involved in this appeal, which requires to be answered: Whether both the Courts below erred in law in holding that Hiba (gift) by Akhtari Begum in favour of Zamir Ahmad was not valid for want of delivery of possession with the same, if so, its effect? 10. Ext. 18 (paper No. 32 in the trial Court record), filed by the plaintiff, is the copy of the order of mutation recorded with the Municipal Board, Haldwani. This document shows that in the year 1965-66 in place of Zamir Ahmad, names of plaintiffs B. C. Harris and Isabella Harris, were recorded as owners in the Municipal record in respect of house No. 51. 11. The plaintiffs claimed their title and landlordship on the basis of sale-deed dated 13-10-1965 (copy of which is Ext. 2, paper No. 18-C in the trial Court's record), which is executed by Zamir Ahmad in favour of the plaintiffs after accepting consideration of Rs. 18,000 from them in respect of the property in suit. Ext. 20 (paper No. 56) filed by the plaintiffs is the copy of the Hiba (gift deed dated 31-5-1949) whereby Akhtari Begum widow of Sakhawat Hussain has transferred her property by way of gift including the house in question to her brother Zamir Ahmad. It is also mentioned in the gift deed that she had no issue of her own. In the gift deed dated 31-5-1949, while parting with the possession of the property, it has been mentioned that Zamir Ahmad would collect the rental income during her life and will deposit with her. 12. D. W. 1 Jeewan Chandra Joshi, S/o defendant who was the sole witness, examined before the trial Court on behalf of the defendant, has admitted in his examination-in-chief itself that his father Shambhu Dutt Joshi (defendant) was inducted as tenant by Sakhawat Hussain who used to collect the rent from the defendant. D. W. 1 Jeewan Chandra Joshi further admits in his examination-in-chief itself that after the death of Sakhawat Hussain, his widow Akhtari Begum became owner and rent used to be paid to her. This sole witness examined on behalf of the defendant himself admits that his father's tenancy in the house in question is in respect of six rooms with kitchen, toilet and two verandahs, Shri Jeewan Chandra Joshi (D. W. 1) further states in the examination-in-chief that Sakhawat Hussain died in the year 1944-45. As to the relationship between the Akhtari Begum and Zamir Ahmad, this witness states that he has heard that Zamir Ahmad is brother of Akhtari Begum. This witness does not deny in his examination that Akhtari Begum has died in the year 1954. D. W. 1 J. C. Joshi though denies that his father paid rent to Zamir Ahmad but admits that rent was paid vide receipts Paper Nos. 20-C. 21-C and 22-C by his father and explains that Zamir Ahmad took this rent on behalf of Sakhawat Hussain and Akhtari Begum. 13. Paper No. 20-C (Ext. 3), 21-C (Ext. 4) and 22-C (Ext. 5) are the receipts of payment of rent, which show that these are the receipts of payment of rent of the year 1964, 1963 and 1962 respectively. In these receipts, name of defendant Shambhu Dutt Joshi is mentioned as tenant and these are signed by Zamir Ahmad. When admittedly Sakhawat had died and thereafter Akhtari Begum also died in the year 1954, the explanation of D. W. 1 J. C. Joshi cannot be accepted that in the year 1964, 1963 and 1962, the rent was being collected by Zamir Ahmad on behalf of either Sakhawat Hussain or Akhtari Begum. Therefore, the relationship of landlord and tenant which in fact is established from the record, was wrongly disbelieved by both the Courts below and the finding on this point of the Court below is not only erroneous in law but totally against the evidence on record. 14. Now, this Court has to examine the validity of the gift deed dated 31-5-1949. Both the Courts below have held the gift deed as invalid on the ground that it is not found proved that the possession was delivered by Akhtari Begum to his brother Zamir Ahmad at the time of Hiba. On examination of evidence on record, I found the findings of both the Courts below is erroneous, misconceived and against the evidence on record. Admittedly, the defendant was in possession of the property in question as a tenant. As such, no physical possession was to be delivered by Akhtari Begum to Zamir Ahmad. If afterwards instead of Akhtari Begum, Zamir Ahmad started taking rent of the house from the tenant (defendant), it is nothing but the consequences of delivery of possession by Akhtari Begum to Zamir Ahmad. Since it has been found proved, as discussed above that admittedly in the year 1962, 1963 and. 1964 rent was collected by Zamir Ahmad from the defendant, it cannot be said that he was not in possession of the property. Needless to say that Akhtari Begum had already died by then in the year 1954. Therefore, the view taken by the Courts below that Hiba in favour of Zamir Ahmad made by Akhtari Begum is not valid, is erroneous in law and cannot be upheld. 15. On behalf of the appellants, my attention was drawn to the judgment dated 15-2-1978, passed by Allahabad High Court in Second Appeal No. 1639 of 1972, Tika Ram Kharkwal v. B. C. Harris, (that was in relation to dispute between present plaintiffs and another tenant) in which Allahabad High Court has found the gift deed dated 31-5-1949, as valid and upheld the decree of ejectment of tenant in said case. From the perusal of said ejectment, it is clear that the tenant in said case was also living in another portion of the same house No. 51 of Mohalla Sakhawat Ganj. In said judgment, Allahabad High Court has found that the possession given by Akhtari Begum at the time of Hiba was a constructive possession, as the accommodation was in the possession of the tenant. 16. Learned Counsel for the respondents argued that since the present respondents were not party in said appeal, as such, the judgment passed in said appeal is not binding on the present respondents. This Court is of the view that no doubt said judgment, passed by Allahabad High Court does not operate as res judicata as against present respondents but the legal interpretation on validity of Hiba (gift) in question given by Allahabad High Court has a persuasive value in interpreting the same. In the above circumstances, this Court agrees with the view expressed by the Allahabad High Court, as to the validity of the impugned gift deed. 17. Assuming for a moment that gift deed dated 31-5-1949, for the want of evidence of delivery of possession, of the property at the time of Hiba, does not transfer title to Zamir Ahmad, the fact cannot be ignored that after widowed Akhtari Begum died issueless, it was only Zamir Ahmad who could have inherited the property and was admittedly collecting rent from the defendant/respondent for more than ten years. As such, when Zamir Ahmad transferred the title alongwith right to collect rent, through sale-deed dated 11-10-1965 to the plaintiffs who demanded the rent from the defendant, denial on the part of defendant of the title of the plaintiffs vide notice dated 15-10-1965 does constitute a ground for determination of tenancy under Section 111 of Transfer of Property Act, 1882. And accordingly by notice dated 21-12-1965 served on the defendant by the plaintiffs under Section 106 read with Section 111 of aforesaid Act, they terminated the tenancy of the defendant w. e. f. 21-1-1966. Accordingly the question of law stands answered with the finding as above that the gift deed dated 31-5-1949 was a valid document and the trial Court and lower appellate Court have erred in law in holding that the title was not transferred by said document from Akhtari Begum to Zamir Ahmad. 18. For the reasons as discussed above, the appeal deserves to be allowed. The judgments and orders passed by both the Courts below are liable to be set aside. The plaintiffs are entitled to the relief of ejectment of the defendant and also the one for recovery of arrears of rent and mesne profits, as prayed by them at the rate of Rs. 8. 33 per month. The appeal is allowed. The impugned judgment and decree passed by the Courts below are set aside. Suit No. 52 of 1966, filed by the plaintiffs is decreed with costs, as prayed in the plaint. However, defendants are allowed three months time from today, to vacate the premises in question, failing which the plaintiffs (appellants) may get the decree executed through the trial Court. .