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Ram Prasad Rai vs Raghunath Prasad And Anr.

High Court Of Judicature at Allahabad|17 May, 1973


JUDGMENT J.S. Trivedi, J.
1. This defendant's Second Civil Appeal is directed against the judgment and decree of the Civil Judge Mohanlalganj, Lucknow dismissing the appeal. The defendant-appellant had been in occupation of a house under an allotment order of the year 1953. The owner of the house at that time was Jamuna Prasad. Subsequently sometime in the year 1961 the heirs of Jamuna Prasad transferred the house to Sri Sampat and Smt. Makhana. On the death of Sampat, Smt, Makhana continued to be the owner of the house. On 7-6-1965 Smt. Makhana executed a will in favour of Raj Dei. Smt. Makhana died on 25-6-65. Raj Dei sold the house to the plaintiffs in November 1966. Thereafter in May 1967 plaintiff-respondent sent a notice under Section 106 of the Transfer of Property Act demanding rent and terminating the tenancy. The defendant-appellant replied to the notice and disputed the title of the plaintiff and contended that after the death of Smt. Makhana he nas been the tenant of Rameshwar, a nephew of Smt. Makhana. The suit out of which this appeal arises was then filed for ejectment on the ground of default and for failure of tenancy on the ground that the appellant had denied the title of the landlord. The trial Court decreed the suit and the decree of the trial Court was confirmed by the lower appellate Court, hence this appeal.
2. Learned counsel for the appellant has contended that a suit for forfeiture of tenancy on the ground of denial of the landlord's title could not be filed without a notice intimating the intention of determining the lease. The contention of the learned counsel for the appellant on that point is right. Section 111(g) Transfer of Property Act expressly provides that the forfeiture can only be effected after the landlord gives notice in writing to the lessee of his intention to determine the lease.
3. It has next been contended by the learned counsel for the appellant that the Courts below were wrong in holding that the appellant committed default in payment of rent. Reliance has been placed by him on Nonbay Mian v. Shaikh Mohd. Yusuf, (1965 All LJ 321), wherein it was laid down that:--
"If the landlord transfers the property in the accommodation without informing the tenant and the transferee demands rent from him, the tenant is entitled to demand clear proof of title from the transferee before he can be asked to stop paying rent to the old landlord. A mere assertion by the transferee that he is the landlord creates no obligation on the tenant to recognise him and repudiate his obligations to the old landlord, the tenant is entitled to ignore a bare assertion without proof as it would expose him to the risk of paying the wrong person and refusing to pay the right person. The position is different when the old landlord himself informs the tenant that he has transferred his rights to another person and requires him to pay the rent to the transferee, for then the tenant is bound to recognise the status of the transferee and pay rent to him. When no proof of title is submitted by the transferee in response to tenant's bona fide request, and the tenant does not pay the rent, he cannot be adjudged a defaulter."
4. The proposition laid down in the above case cannot be disputed. It is true that in the instant case there is nothing on record to show that Smt. Makhana or Smt. Raj Dei had ever informed the appellant about the transfer of the house to the plaintiffs. It has, however, to be borne in mind that the tenant appellant did not put the plaintiff to proof of his title. What he stated in his reply was that after the death of Smt. Makhana, her nephew Rameshwar had been in possession and he has been paying rent to Rameshwar. Had he paid rent to Rameshwar, then also there could be some substance in his submissions. The Courts below have given concurrent findings of fact that no rent was paid to Rameshwar and the plea raised by him was false. Plaintiff having proved his title was in law entitled the rent. The liability of the defendant for ejectment could be escaped only if he in bona fide belief had either paid rent to the old landlord or had bona fide doubted the plaintiff's title. Both the Courts have negatived the defendant-appellant's assertion of bona fide payment. The defendant cannot escape the liability of ejectment on his failure to make the payment or deposit in Court under Section 7(c) of the Rent Control and Eviction Act. Prem Chand v. Onkar Dutt Sharma, 1972 All LJ 440 = (AIR 1972 All 415), on which the learned counsel for the respondent placed reliance does not lay down that bona fide payment to the original landlord will in no case absolve the defendant from the liability of the ejectment on the suit of a landlord transferee.
5. Lastly it has been contended by the learned counsel for the appellant that under Section 114 of the Transfer of Property Act the plaintiff landlord was not entitled to the relief of forfeiture for non-payment of rent because the decretal amount together with all arrears stands deposited in the trial Court.
6. Section 114 of the Transfer of Property Act reads as under:--
"Where a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred."
7. The section contemplates tender or payment at the hearing of the suit i.e., in the trial Court before the suit is commenced. The deposit of the decretal amount and payments made in pursuance of the stay order of this Court cannot be taken into account for the purpose of Section 114 nor can the tender or payment at the appellate stage be availed for a relief contemplated under Section 114 of the Transfer of Property Act. The section also contemplates that there should be an express covenant of re-entry or non-payment of rent. Lastly the discretion exercised under Section 114 of the Transfer of Property Act is equitable discretion and as laid down in Namdeo Lokman v. Narmadabai, AIR 1953 SC 228, that:
"It is a maxim of equity that a person who comes in equity must do equity and must come with clean hands and if the conduct of the tenant is such that it disentitled him to relief in equity, then Court's hands are not tied to exercise it in his favour."
8. In the instant case not only the money was not tendered at any stage, but the false plea of payment to Sri Rameshwar Prasad, a nephew of Smt. Makhana was alleged. The appellant, therefore cannot be permitted at this stage in Second Appeal for the first time to claim a relief under Section 114 of the Transfer of Properly Act.
9. This appeal, therefore, has no force and is accordingly dismissed. Costs in the circumstances of this case shall be on parties. Two months are allowed to the appellant to vacate the premises, within which period the decree for ejectment shall not be executed.
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Ram Prasad Rai vs Raghunath Prasad And Anr.


High Court Of Judicature at Allahabad

17 May, 1973
  • J Trivedi