KAJODIMAL VIJAYLAL MAHAJAN Vs. DARBARILAL DEVILAL AGARWAL

JUDGEMENT

(1.) This suit for recovery of mesne profits was brought by plaintiff Darbarilal against defendant Kajodimal on the allegations that the plaintiff had purchased a portion of the house in occupation of the defendant from its previous owner Madanlal Patwari. The other portion in occupation of the defendant was sold to one Gulabchand. The plaintiff considered the occupation of the defendant as amounting to trespass and has brought the suit for recovery of mesne profits and damages for use and occupation of the premises in question by the defendant.

(2.) The defendant denied the plaintiffs allegations that he was in occupation of the premises in question as a trespasser. He also denied his liability for payment of the mesne profits. He assailed the jurisdiction of the Small Cause Court, before whom the suit was filed, to try the same.

(3.) It appears clear from the pleadings that the entire house at one time belonged to one Madanlal and the defendant was his tenant in respect of a portion of that house. Madanlal sold the house in two different portions, one portion being sold to the plaintiff and the other portion in the occupation of the defendant to one Gulabchand. The result of such sale in different portions was that the defendant's premises now are owned in parts by two different owners. The exact proportion at which he should now pay rent to the respective owners has so far not been determined or agreed to by mutual agreement between the parties. Section 109 of the Transfer of Property Act which deals with such a situation provides as follows: "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, it 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 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".