BHOLA NATH Vs. KISHAN LAL, AND ANOTHER

JUDGEMENT

(1.) This is a defendant's second appeal.

(2.) The plaintiffs were transferees from the previous landlord Smt. Kapoori Devi. They claimed that she transferred the shop in suit to them on 9-10-1967 by a sale-deed (Exhibit 5) which conveyed to them all the rights of the vendor. Smt. Kapoori Devi sent a registered notice (Exhibit 7) on 9-10-1967 to her tenant Bhola Nath (the appellant) who was occupying the aforesaid premises on rent of Rs. 8/- per month. By this notice Smt. Kapoori Devi had directed the appellant to pay to the plaintiffs an amount of Rs. 304.00 which was due against him as arrears of rent. This notice was, however, returned to the vendor. After the transfer the transferees (plaintiffs) sent a registered notice calling upon the tenant to attorn to them and pay the arrears of rent assigned to them by the vendor. This notice was served on the defendant tenant personally. The appellant remitted rent by two money orders but the amount remitted fell short of the total rental claimed in the composite notice given by the transferees. No reply to the notice of the transferees was sent by the tenant. Before the trial court the question arose as to whether the appellant had committed default so as to make him liable for ejectment. The explanation offered by the appellant for sending a reduced amount and not full rent claimed in the notice was that the transferees were not entitled to recover the rent due for the period prior to the transfer inasmuch as the plaintiffs had not purchased from the previous landlady the arrears of rent due to her. The question, therefore, which arises for determination in this case is as to whether this arrear had, in fact, been transferred to the plaintiffs. The trial court came to the conclusion that there had been no assignment in favour of the transferees of that amount and, therefore, they could not recover it. In that view of the matter the trial court held that no default had been committed so far as the arrears of rent for the period prior to the transfer was concerned. It only decreed the suit of the plaintiffs for arrears of rent for the period after the transfer i. e. from 9-10-1967 to 31-12-1967. The relief of ejectment claimed by the plaintiffs was refused. On appeal the lower appellate court disagreed with the view of the lower court and came to the conclusion that the plaintiffs were entitled to recover the previous rent also and consequently the appellant had committed default and had incurred the liability for ejectment.

(3.) In my opinion the trial court misinterpreted the evidence and did not correctly apply the law to the facts of this case and hence its finding that the plaintiffs were not entitled to recover past arrears of rent from the appellant was erroneous and illegal. The matter would largely depend on a proper construction of the main document in the case, namely, the sale deed (Exhibit 5) dated 9-10-1967. It is to be noted that the sale deed expressly recites that the appellant Bhola Nath owed a sum of Rs. 304.00 to Smt. Kapoori Devi on account of arrears of rent at the rate of Rs. 8/- per month for the period 16-8-1964 to 9-10-1967. The sale deed proceeds to mention the details of the property conveyed and says that this was done together with all rights, title and interests therein to the present plaintiffs for a consideration of Rs. 2,500.00. There was, however, one more significant indication in the sale deed .which concluded with the recital that the property was being transferred "Mai Jamiya Haq Naquq Mutalika Uske" which means together with all, the rights, title and interests therein. In my opinion this would include the arrears of rent also. In fact, the whole tenor of the sale deed indicates that the intention of the vendor was to transfer the entire property lock, stock and barrel, because the tenant according to the recitals in the sale deed had become an unmitigated nuisance to the landlady. Apart from this, the notice Exhibit 7 signed by the vendor, even though its service was not proved, expressly contained the allegation that the property had been transferred to the plaintiffs and the appellant was directed to pay the arrears of rent to the transferees. As I have already mentioned, this was followed by a composite notice of demand of arrears given by the plaintiffs themselves where the same allegations were repeated. This notice was admittedly served on the appellant personally and no reply thereto had been given by him. The respondents adduced the best possible evidence by examining Bhajan Lal, husband of the previous owner Smt. Kapoori Devi, who deposed that his wife did not manage the property and that he used to manage it on her behalf. He further deposed that at the time of the transfer of the property the existing arrears of rent had also been sold. Surely it was not the appellants case that he had paid the arrears of the pre-transfer rent either to the erstwhile landlady or to the plaintiffs. Thus, there was clear evidence to prove that the liability of the defendant for arrears of rent relating to the property before the transfer had also been transferred to the present plaintiffs and the finding recorded by the trial court was erroneous and illegal. I, therefore, affirm the finding recorded by the lower appellate court that the past arrears had also been transferred to the plaintiffs.