LAIK AHMED Vs. SURJO AND

JUDGEMENT

(1.) THE appellant filed a suit for the ejectment of the respondents as also for recovery of arrears of rent and mesne profits. THEy claimed to be the owners of house No. 149 and 150 situate in Mohalla Khandak, Meerut City, having purchased the same from the previous owner. THE plaintiffs' case was that Smt. Ramdei, defendant No. 1 was a tenant in this house on behalf of Sheikh Wahilduddin. THEy had purchased this property from the heirs of Sheikh Wahiduddin. Smt. Ramdei is said to have executeld a registered rent not in favour of Sheikh Wahiduddin on July 18, 1975 in which she was said to have acknowledged the said Sheikh Wahiduddin to be the exclusive owner of the property in suit. THE plaintiff claimed that rent from ' September 14, 1962 to April 1, 1966 at the rate of Rs. 6/- per month amounting to Rs. 258.60 p. was due from the deceased Ramdei which she did not pay in spite of demand and thus committed default in payment of rent. It was also said that defendant Ramdei had sublet the property in suit to defendants Nos. 2 and 3 without the permission of the landlord and the Rent Control and Eviction Officer and thus rendered herself liable to be evicted. It was said that a notice dated March 16, 1966 was served on the deceased Ram Dei on March 18, 1966 by which rent was demanded from her and her tenancy wag also determined. A sum of Rs. 258.60 p. was claimed as arrears of rent and Rs. 850/ - were claimed as mesne profits. Pendentelite and future mesne profits were also claimed at the rate of Rs. 6/- per month. Ram Dei, who was defendant No. 1, died during the pendency of the suit and her legal representatives Surja and Mohan Lal represent her interest. Ram Dei filed a written statement alleging that she was a tenant of the disputed land in 1923. She was a tenant of Riyasat Lal Kurti, Meerut Cantt. She further alleged that in 1933-34 there was litigation between the defendant Ram Dei and the Manager of the Riyasat Lal Kurti and a fresh rent deed was executed in favour of Sheikh Wahiduddin, who was the Manager, Lambardar and co-sharer of Riyasat Lal Kurti. In the year 1947 the buildings on the disputed land fell down and as such in the year 1948 the defendant Ram Dei paid Rs. 500/- to Munshi Zakir Husaini, who was the agent of the Manager, and got an authority to put up her own constructions which she did. Sheikh Wahiduddin died in 1949 and on his death Sheikh Farududdin son of Sheikh Wahiduddin Maulvif Sheikh Muzaffaruddin son of K.B. Sheikh Bashiruddin and Abdul Qayyum son of Sheikh Abdul Qadir Makki began to act as Managers of Lal Kurti State and they started realising rent from the defendant. THEse persons realised rent upto 1962 when the heirs of Sheikh Wahiduddin and Sheikh Bashiruddin transferred their shares to Laik Ahmad and Mahendra Pal Gupta, and after that rent was realised by the heirs of Abdul Qadir Makki through their attorney Sheikh Abdul Qayyum who had been realising rent up to the date of the institution of the suit. It was further the case of the defendant that the buildings existing on the land in suit were owned by Ram Dei and that the plaintiffs and the heirs of Abdul Qadir Makki are the owners of the land only. In other words, it was pleaded that the plaintiffs were not the sole landlords of the land. It was further the case of the land. It was further the case of the deftndant that the rent had been paid uptodate that there were no arrears and the notice terminating the tenancy had demanding rent served on the defendant was illegal and inoperative. It was further pleaded that the heirs of Abdul Qadir Makki being co-owners were necessary parties to the suit. THE trial court held that the plaintiffs were the exclusive owners of the land and the buildings and that defendant No. 1/1 is the daughter of Ram Dei defendant. Defendant No. 1/2 was not held to be an heir of Ram Dei and was held to have no interest in the property in suit. It was further held that Ram Dei was a tenant of the plaintiffs and that she was in arrears of rent. THE claim for rent up to June 30, 1963 was held to be barred by time. THE plaintiffe were held to be entitled to a decree for rent for the period from July 1, 1963 to April 17, 1963, which amounted to Rs. 201.60 p. It was further held that Ram Dei had sublet the property in suit to defendants Nos. 2 and 3. THE trial court rejected the case of the defendants that the buildings on the land in suit belonged to Ram Dei deceased. THE notice to quit and demanding arrears of rent was held to be valid. THE trial court accordingly decreed the suit for possession of house No. 149| 150, Mohalla Khandak, Meerut City. It also decreed the suit for arrears of rent amounting to Rs. 201.60 p. THE suit for recovery of Rs. 850.00 p. as arrears of mesne profits and pendentelite and venture mesne profits at the rate of Rs. 6/- per month was also decreed against the defendants Nos. 1/1, 1/2 and 3 respectively. Defendant No. 1 was directed to pay the costs of the suit to the plaintiff. THE defendant appealed. On appeal the lower appellate court recorded a finding that the plaintiffs are not the sole owners of the land and the buildings in dispute, but one Abdul Qayyum. is also a co-owner. Accordingly it was held that the plaintiffs were not exclusively entitled to receive rent from the tenants and that the evidence on record disclosed that the defendants had paid some rent to Abdul Qayyum and, as such, the defendants were not defaulters within the meaning of the U.P. Rent Control and Eviction Act. It was further held that Smt. Ram Dei was not the owner of the constructions standing on the land. It was also held that Ram Dei had not sublet the land. THE lower appellate court having recorded these findings allowed the appeal and dismissed the suit of the plaintiffs with costs throughout. Aggrieved by the order of the lower appellate court the plaintiffs have filed this second appeal. It has been argued on behalf of the appellants that Wahiduddin, was originally the exclusive owner of the property in suit and that Ram Dei had expressly accepted him to be the landlord of the accommodation dispute and, as such, the defendants were estopped from denying the title of Wahiduddin and of the plaintiffs who had purchased the property in suit from the heirs of Wahiduddin. This attornment of Wahiduddin was proved by the execution of a rent deed as- also by payment of rent to him It may be added that in the sale deed the heirs of Bashiruddin, the brother of Wahiduddin had also joined, as according to the plaintiffs their names were also entered in the revenue records. In this connection reliance was placed by the appellants on the provisions of Section 116 of the Indian Evidence Act. Section 116 of the Indian Evidence Act is reproduced below: - "No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the land of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given." As long as Wahiduddin and his heirs continued to be the owner of the building, Ram Dei or anybody claiming through her could not have denied the title of land to Wahiduddin or his heirs in view of the statutory estoppel contained in the provisions of Section 116 of the Indian Evidence Act. THE lower appellate Court, however, held that Section 116 of the Indian Evidence Act could be of no assistance to the appellants because the statuotry estoppel incorporated in Section 116 of the Indian Evidence Act did not apply between a tenant and a purchaser from the landlord to whom the tenant had attorned. In the circumstances the lower appellate court held that the defendants could set up a claim that there were other owners of the property other than the plaintiffs who were vendees from Wahiduddin's heirs. Learned counsel for the respondents submitted that the bar of Section 116 of the Indian Evidence Act would also not apply because the defendants were not denying the title of Sheikh Wahiduddin or his heirs as landlords, but were merely saying that there were other owners than Wahiduddin or his heirs to whom they were paying rent. Section 116 of the Indian Evidence Act incorporates a statutory estoppel and it does not apply where a landlord has transferred his property, in which there is a tenant, to another person. Thus, the defendant appellants could take the plea that Abdul Qayyum was also a landlord along with the plaintiffs who was, as mentioned above, a transferee from the heirs of Wahiduddin. THE lower appellate court committed no error of law in holding to the contrary. THE argument of the plaintiff respondent that it was open to the defendant to set up a plea that there were other landlords other than Sheikh Wahiduddin without contravening Section 116 of the Evidence Act could not have been accepted as long as Wahiduddin and his heirs were alive. It has been held that a person taking lease from one of several co-sharers cannot dispute his lessor's exclusive title to receive rent or to sue him for ejectment. See in this Connection Mathura Prasad v. Gokal Chand and another (A.I.R. 1919 Alld. 217) and Jehingira v. Karrar Husain (A.I.R. 1918 Alld. 252.). Similarly it has been held in the case of Alimuddin v. Alimuddin Majumdar (A.I.R. 1918 Cal. 220.) that in a suit for ejectment on the expiry of a lease it is not open to a lessee who was inducted on the land by the plaintiff and has been holding under a lease granted by him cannot say that the latter is not sole landlord. In this case the property in suit originally belonged to one Madar Bux. He died leaving behind three sons, Abdul Karim, Abdul Hakim and Ilahi Bux. Ilahi Bux died issueless. THE two sons Abdul Karim and Abdul Hakim then inherited the property. THE plaintiffs are the purchasers from the heirs of Abdul Karim, whereas Abdul Qadir is the son of Abdul Hakim and the defence case was that Abdul Qadir also had a proprietary interest in the house in suit. It was, therefore, necessary for the plaintiffs to prove that after the death of Madar Bux the branch of Abdul Karim got exclusive proprietary interest in the property. THE case of the plaintiff was that there was a partition between the two sons of Madar Bux, namely Abdul Karim and Abdul Hakim and the property in suit fell to the share of Abdul Karim. No document pertaining to that partition has been filed. However, a document has been filed which pertains to a partition between the heirs of Abdul Hakim. In that document which is paper No. 130 it was mentioned that the properties which have been inherited by Abdul Hakim were partitioned between his heirs. In the schedule to that document various properties are mentioned, but the property in suit has not been mentioned. It is, therefore, submitted that this document proves that the property in suit had gone to the branch of Abdul Karim. This does not however, prove that the property in suit had gone to the branch of Abdul Karim exclusively. THEre is a statement of Najmul Ahsan. He stated that till 1949 Wahiduddin deceased alone was managing the property in suit. It was however stated by him that on a partition between the branches of Abdul Karim and Abdul Hakim certain properties which were not capable of partition were not partitioned. THE plaintiffs have failed to prove that the property in suit came exclusively to the branch "of Abdul Karim and, as such, they have not succeeded in proving that their vendors were exclusive owners of the property in suit. It is then submitted by the respondents that they are entitled to the benefit of the provisions of Section 109 of the Transfer of Property Act. Section 109 of the Transfer of Property Act so far as it is relevant runs as follows: - "If the lessor transfers the property leased, part thereof, or any part of his interest therein, the transferee, in the absenise 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." This section is of no assistance to the appellants. Here the question is as to the right of the respondents to plead that the plaintiffs are not the exclusive owners of the property in suit and there is another person, namely, Abdul Karim who is also a co-owner along with the plaintiffs. THE plaintiffs have as a result of the sale in their favour by the heirs of Wahiduddin and Bashiruddin got the same rights as these persons had. THEy can get no higher rights or become exclusive owners namely on the basis of the sale deed executed by the aforesaid persons. In view of the finding that the plaintiff-appellants are not the exclusive owners of the property in suit, their suit for ejectment and arrears of rent could not be decreed. In the result, the appeal fails and is dismissed with costs.