BABU LAL Vs. KANHAIYA LAL

JUDGEMENT

(1.) THIS is a defendants' second appeal arising out of a suit for arrears of rent and ejectment.

(2.) THE plaintiff-respondent's case as set out in the plaint is that the premises in question which consist of a shop and a Medi, situated in village Deoli were rented out to the defendant Chiranjilal (who is now dead and represented by his legal representatives Babulal and others - appellants) by one Gadmal receiver of the firm Daulatram Chandanmal on Kartik Sudi 1, S. 1998 on a monthly rent of Rs. 5/4/ -. It is further alleged that the partition commissioner of Ladha's estate, appointed by the Calcutta High Court sold the premises in question to Chhajulal Banshi Lal by a registered sale deed dated 6-2 1947 and Chiranjilal attorned in favour of the vendees Chhajulal Banshilal. THE plaintiff goes on to state that since Chiranjilal did not pay rent to Chhajulal Banshi Lal, the latter filed a suit in the Court of Sub Judge, Kekri for arrears of rent amounting to Rs. 172/10/- and the same was decreed on 9 8 1955. THE prayer for ejectment was, however, disallowed on the ground that the notice of termination of tenancy dated 25-7-1949 served on the tenant was not legal and valid. It is further alleged that the heirs of Chhajulal, viz. Smt. Vidhyadevi and Banshilal sold the property in question through their attorney Kapurchand in favour of the plaintiff by a registered sale deed dated 21-9 1962. It may be stated at this stage that Smt. Vidhyadevi and Banshilal had also filed a suit for arrears of rent and ejectment against Chiranjilal but the same was dismissed in default under O. 9, r. 8 C. P. C. and the application for restoration was also dismissed. THE present suit has thus been filed by the plaintiff on the basis of derivative title.

(3.) THE next point urged on behalf of the appellant is that no rent was paid either to Gadmal or to his successor in title Chhajulal nor to the present plaintiff, and consequently there was no attornment in favour of the plaintiff. In this connection it may be pointed out that in the written statement dated 18-3-1950 in suit No 84 of 1949: Chhajulal Banshilal vs. Chiranjilal the defendants' father Chiranjilal denied his position as a tenant, but his contention was over-ruled and a decree for arrears of rent was passed against him on 9-8-1955 though the suit for ejectment was dismissed on account of defect in the notice of termination of tenancy. This judgment, in my opinion, operates as resjudicata against the appellants who are sons of Chiranjilal (defendant in that case), and are claiming under him. THE defendant is therefore debarred from disputing his status as a tenant of the plaintiff who is successor-in-title of Chhaju-lal Banshilal in respect of the premises in question. Moreover, it is not necessary for the plaintiff to prove that rent had actually been paid to him or his predecessor-in-title or that there had been attornment in his favour or for the matter of that in favour of his predecessor-in-title, in case he is able to establish that he is the transferee of the lessor. In this connection reference may be made to S. 109 of the Transfer of Property Act which provides that 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, with certain provisos which obviously have no application to the present case. It has already been held that Shrimati Vidhyadevi and Banshilal sold the property in question to the plaintiff through their attorney Kapurchand by the sale deed dated 21-9-1962. Sec. 116 of the Transfer of Property Act which is being relied upon by the learned counsel for the appellant has obviously no application to the facts and circumstances of the present case. I, therefore, over rule this contention also.