Jharkhand High Court
Binay Kumar Dokania vs Decorum Nirman Limited on 11 March, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 19 of 2019
Binay Kumar Dokania, aged about 51 years, son of Sri Raghunath
Dokania, Resident of Jamtara Bazar, P.O. & P.S. Jamtara, District
Jamtara ... ... Defendant/Appellant/Appellant
Versus
Decorum Nirman Limited, a company limited by shares incorporated
under the Companies Act, 1956 (No. 1 of 1956) having its registered
office at 23A, Netaji Subhash Road, 6th Floor, Room No. 19, P.O. + P.S.
Park Street, Kolkata - 700001, represented through Mr. Shib Kumar
Parsuramka, Son of late Shankarlal Parsuramka, resident of Jamtara
Bazar, Jamtara, P.O., P.S., Subdivision & Sub registration office Jamtara,
District Jamtara as Director
... ... Plaintiff/Respondent/Respondent
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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Appellant : Mr. Rahul Kumar Gupta, Advocate
For the Respondent : Mr. Nipun Bakshi, Advocate
Mr. Shubham Sinha, Advocate
Lastly heard on 23rd January, 2025
---
th
13/11 March 2025
1. This appeal has been filed challenging the judgment and decree
dated 18.12.2018 (decree signed on 03.01.2019) passed by the learned
District Judge-I, Jamtara in Civil Appeal No. 26/2017 whereby the learned
lower appellate court has been pleased to dismissed the appeal and has
affirmed the judgment dated 14.06.2017 (decree signed on 30.06.2017)
passed by the learned Civil Judge (Sr. Division) II, Jamtara in Title
Eviction Suit No. 03/2012 whereby the learned trial court has decreed the
plaintiff’s suit.
2. This appeal was admitted for final hearing vide order dated
31.03.2022 on the following substantial questions of law: –
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1) Whether certified copy of the registered sale deed No. 428
of 2008 dated 17.7.2008 could have been exhibited on the
date of the judgment as a public document?
2) Whether courts below could have concluded on the basis
of the aforesaid sale deed that the plaintiff is the land lord of
the defendant(s)?
3) Whether in view of the sale deed, the plaintiff can claim
that he has become land lord of the property by virtue of
aforesaid?
4) Whether in view of the fact that the sale deed which
covers total area of 21.95 decimal of land, the decree could
have been passed for eviction in respect of 34 decimal, which
is beyond the area covered by the sale deed?.
Arguments of the Appellant
3. While referring to the substantial question No. 1, the learned
counsel for the appellant has submitted that the registered sale deed No.
428 of 2008 dated 17.07.2008 (Exhibit-6) has been wrongly admitted in
evidence on the date of judgment. He has referred to the Order VII Rule
14 of CPC to submit that the sale deed, which was the basis of the claim
of the plaintiff, was required to be produced while filing the plaint and
anything subsequently can be introduced only with the leave of the Court.
He has also submitted that as per Order XIII Rule 1 of CPC, the original
document is also required to be filed. The learned counsel submits that the
manner in which the sale deed was admitted into evidence is unknown to
the provisions of CPC. He has also submitted that if the sale deed is
excluded, then the basis of the plaintiff fails and consequently the appeal
is to be allowed.
4. The learned counsel has also submitted that merely because the sale
deed is a registered document, the same cannot be adduced in evidence in
the manner which has been done, inasmuch as, there was no occasion for
the appellant-tenant to cross-examine the witnesses of the plaintiff with
regard to the nature and the extent of land involved in the sale deed. He
has also submitted that the sale deed in the present case cannot be said to
be an admitted document. The learned counsel submits that in case, the
sale deed is excluded from the evidence, then none of the parties can rely
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upon the same for any purpose whatsoever. The learned counsel has also
submitted that merely because the sale deed is registered that by itself
does not become a public document. However, he submits that he shall
provide a copy of a judgment in support of this argument within a period
of two days from today.
5. During the course of hearing, while referring to substantial question
No. 4 which relates to area covered under the aforesaid sale deed, it
transpired that apart from the said sale deed, there is no other material or
evidence on record to substantiate as to what was the area of the property
covered under the sale deed.
6. The learned counsel has submitted that in case, the sale deed is
excluded, then the matter has to be considered on the basis of materials
available on record.
7. The learned counsel has further submitted that the appellant never
acknowledged the respondent as the landlord and was remitting rent to the
previous landlord and never paid rent to the respondent. He has also
submitted that the previous landlord has not deposed before the court to
deny the remittance of rent by the appellant to the previous landlord
through money orders. He has also submitted that it was the case of the
appellant that the previous landlord at times used to refuse acceptance of
the rent through money order.
Arguments of the Respondent
8. Learned counsel appearing on behalf of the respondent has
submitted that the sale deed is not in dispute. He has also submitted that
the appellant was only disputing that the sale deed could not have been
executed as there was a lease deed in favour of the appellant. He has also
submitted that the sale deed being admitted document could have been
taken into evidence even at the stage of argument as the execution of the
sale deed was not in dispute. The learned counsel has further submitted
that the appellant has been a rank defaulter. No evidence has been placed
on record by the appellant regarding remittance of rent to the previous
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landlord as the appellant has claimed that he continued to pay rent to the
previous landlord till the expiry of the lease in the year 2011.
9. The learned counsel has relied upon the judgment passed by the
Hon’ble Supreme Court reported in (2015) 13 SCC 13 (Ambica Prasad
Vs. Mohd. Alam and Anr.) paragraph 12, 14, 15 and 16 to submit that
there is no need for the tenant to attorn to the sale. He has submitted that
by Exhibit-2, the previous landlord had intimated the appellant regarding
the sale of the property and both the courts have come to a conclusion that
the appellant was defaulter with respect to the payment of rent to the
respondent who was the purchaser of the property and stepped into the
shoes of the original landlord. He has also submitted that the appellant had
paid rent to the respondent to some extent, but subsequently he stopped
payment of rent. He has also submitted that the appellant, under Section
19 of the Jharkhand Building (Lease, Rent and Eviction) Control Act,
could have deposited the rent before the rent controller in case of any
confusion as to who is the real landlord of the property, but no such steps
were taken.
10. He has also submitted that the appellant had also issued a letter to
the respondent seeking renewal of lease. The learned counsel has also
relied upon the judgment passed by the Hon’ble Supreme Court reported
in 2023 SCC OnLine 1183 (Appaiya Vs. Andimuthu alias Thangapandi
and Ors.) to submit that the registered sale deed is a public document.
11. The learned counsel has submitted that the appellant is enjoying the
property without paying rent at all.
12. The learned counsel has also submitted that the definition of
landlord is wide. The previous landlord had informed the appellant that
the entire property has been transferred to the respondent, and therefore,
there is no question of not remitting rent of the entire property to the
respondent. He has also submitted that there are concurrent findings
recorded by both the courts that the appellant is a defaulter in the matter of
payment of rent.
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Findings of this Court.
13. The plaintiff filed the suit seeking decree for the eviction of
defendant from the suit premises and for delivery of possession along with
arrears of rent and cost of the suit.
Case of the plaintiff.
14. The case of the plaintiff in nutshell was that the suit lands bearing
Plot No. 324/B, 325/B, 326/B having its area 10 decimals, 18 decimals
and 6 decimals respectively with structure thereon originally belong to
Bhagwati Prasad Parsuramka. The defendant obtained the aforesaid land
covering 75′ x 45′ corrugated thatched shed and surrounded by brick-built
compound wall by registered Deed of Lease bearing No. 1281 of 1996
dated 01.11.1996 for fixed period of 15 years i.e. from 01.11.1996 to
31.10.2011 from its original owner Sri Bhagwati Prasad Parsuramka on
monthly rent of Rs. 2000/- per month. As per the terms and conditions of
the said Deed, the rent of the leasehold property was to increase @ 10%
on expiry of every three years and accordingly, the rent of the premises
became Rs. 2928/- per month from 01.11.2008.
As per the plaint, the original Lessor and owner Bhagwati Prasad
Parsuramka sold the said Lease Hold Property to the plaintiff vide
Registered Deed of Sale bearing No. 428 of 2008 dated 17.07.2008 and
since then, the plaintiff became the owner of the suit properties. It has
been further stated that Bhagwati Prasad Parsuramka issued a Notice
dated 17.10.2008 intimating the defendant to pay the rent of the Leasehold
property/suit property to the plaintiff from July, 2008. The defendant
received the Notice on 17.10.2008 and thereafter, started paying rent of
the suit property to the plaintiff and paid till October, 2010. Since
01.11.2010, the defendant defaulted in payment of rent consecutively for
19 months and arrears of rent had become Rs. 2,928/- x 19 = Rs. 55,632/-
only, which was due. The plaintiff gave legal notice dated 22.10.2011 to
vacate the suit premises on 31.10.2011 as the period of lease was going to
expire on 31.10.2011 and also to pay the arrears of rent. The defendant
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gave an evasive reply dated 08.11.2011 and denied to quit and vacate the
house. It has been further stated that the plaintiff needed the suit premises
for his own use and occupation to start his own business. Thus, the
defendant was liable to be evicted under the provisions of Sec. 11(a), (c),
(d) and (e) of the Jharkhand Buildings (Lease, Rent and Eviction) Control
Act, 2000 and pay arrears of rent.
Case of the Defendant
15. Defendant appeared and filed his written statement alleging that the
suit was not maintainable and there was no cause of action and the suit
was bad for non-joinder of necessary party namely the original landlord
Bhagwati Prasad Parsuramka and that the plaintiff had no locus standi to
file this suit. As per Clause 11 of the Lease Deed on expiry of the period
of tenancy if the defendant was willing to continue the tenancy for further
period, the defendant could enter into a fresh agreement/Kirayanama with
the landlord Bhagwati Prasad Parsuramka or his successor. It was asserted
that there was also an oral agreement between the defendant and Bhagwati
Prasad Parsuramka in or about June, 2008, when Bhagwati Prasad
Parsuramka was expressing his willingness to sell the suit property and it
was agreed that as and when the landlord would sell the suit property, the
landlord would give preference to the defendant for purchasing the same
provided both agree on the price. It was alleged that the plaintiff was a
known land Mafia having sole business is to purchase and sell lands and
properties for profit; the plaintiff had already purchased a large number of
properties and had sold at higher price. Defendant has given several
descriptions of sale deed numbers of the year 2007 to 2012 regarding
transaction of plaintiff and pleaded that the oral agreement between the
defendant and original landlord became known to the plaintiff and then
the plaintiff wanted to purchase the property for selling the same later on
at higher price. It was asserted that by giving some allurement to the
original landlord, the plaintiff secretly got the Deed executed for the suit
property.
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Since the Lease was to expire on 31.10.2011, renewal of lease before the
original landlord was claimed as stipulated in the Lease Deed and this
demand was made orally as well as by written notice sent by registered
post on 17.08.2011 but the original landlord did not give any reply. It was
alleged that the Deed of Sale bearing No. 428 of 2008 dated 17.07.2008
was an illegal instrument by which original landlord could not legally
convey the suit property to the plaintiff. It was asserted that there was a
condition attached to the Lease Deed which ought to have been complied
with by the original landlord and without complying the same, the original
landlord had no right to transfer the property to the plaintiff. It was
asserted that the Defendant never paid rent to the plaintiff since he did not
recognize the plaintiff as the landlord of the suit premises. The defendant
all along paid rent to the original landlord but when the original landlord
started refusing to accept rent at the instance of the plaintiff, the rent was
being sent to him by postal money order. Sometimes, the original landlord
used to accept the rent and sometime he used to refuse. Defendant has
stated that on getting notice, the defendant sent a written reply on
08.11.2011 making it clear that if the plaintiff claimed that he has
succeeded the suit property by purchasing the same from the original
landlord and has stepped into the shoes of the original landlord, then the
plaintiff was bound to comply with conditions of Lease and the defendant
had put forth his claim of renewal of lease but the plaintiff did not reply to
said demand of the defendant. The defendant prayed that the plaintiff was
not entitled to any relief and the suit was liable to be dismissed.
16. The learned Trial Court framed the following issues for
consideration: –
(i) Is the suit maintainable in its present form ?
(ii) Is there any valid cause of action for the suit ?
(iii) Is there any relationship of landlord and tenant existing
between the parties ?
(iv) Is the plaintiff liable for eviction being defaulter in payment
of rent ?
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(v) Is the suit premises required for the bona fide personal use
of the plaintiff ?
(vi) Will partial eviction suffice the need of the parties ?
(vii) To what relief or reliefs the plaintiff are entitled for ?
17. Both the parties led oral and documentary evidences.
18. The learned Trial Court has given its findings with regard to issue
nos. (iii), (iv), (v), (vi) taken up together which is quoted as under:-
8. Perused the case record, exhibits, deposition of witnesses and
after hearing the argument as well as on the basis of evidence as
discussed above, I come to the conclusion that Ext.-1 (deed of lease),
Ext.-6 is Sale deed as well as Ext.-5 signature of Binay Dokania on
notice proved the facts that plaintiff has purchased the lease
property and all right and title of original lessor transferred to the
plaintiff. Defendant have full knowledge of the transfer and relying
on the principle laid down by Hon’ble Apex Court cited in A.I.R 2015
S.C. 2459, Ambica Prasad Vrs. Md. Alam and others. The
relationship of landlord and tenant is well established between
plaintiff and defendant. Accordingly issue No. (iii) is decided in
favour of the plaintiff.
Plaintiff has himself admitted in the deposition that he has not
paid any amount of rent after expiry of the lease ( D.W.-2, para-2).
Thus non-payment of rent by the defendant come under the ambit of
section 11 (e) of the Jharkhand Building ( L, R & E) Control Act
2000 and lease period has already expired and one year more has
also been elapsed, it is also violation of clause of lease. As per
deposition of plaintiff (P.W.-1) para-8 , plaintiff requires land for
personal necessity and it has not been rebutted by the defendant. On
the issue of partial eviction, defendant has not led any evidence and
this matter has not raised by the parties either during argument or in
evidence. So, issue No. (iv) , (v) are decided in favour of the plaintiff
and issue No. (vi) is dismissed as not pressed …….”
Issue nos.(i) and (ii) were decided in favour of the plaintiff by
observing that the suit was maintainable and the exhibits i.e.
lease of Deed and notice showed the fact that there was valid
cause of action for the suit. The plaintiff was held entitled to get
a decree of eviction as provided u/s 11 (1) (a), (c), (d) of
Jharkhand Buildings (Lease, Rent and Eviction) Control Act,
2000 and to get arrears of rent and directed that the defendant
8
will have to pay the rent at the rate of Rs. 2000/- per month till
eviction.
19. The learned Appellate Court has framed the following points
for determination: –
A. Whether there is relation of landlord and tenant between
the parties and the learned lower court was justified in
deciding the same in favour of plaintiff?
B. Whether the learned lower court was justified in deciding
the issue of personal need of plaintiff of the suit premises
and the defendant/appellant was defaulter in payment of
rent and he is liable to be evicted from the suit premises?
C. Whether the learned lower court was justified in decreeing
the suit of plaintiff and the impugned judgment and decree
are liable to be sustainable?
20. While deciding the aforesaid point of determination no. (A), the
appellate court recorded that the defendant admitted in his pleading and
evidences that –
a. Bhagwati Prasad Parsuramka, was the owner of suit premises;
b. Bhagwati Prasad Parsuramka, leased out the suit premises over
Plot No. 324/B area 10 decimal, Plot No. 325/B area 18 decimal
and Plot No. 326/B area 6 decimals total area 34 decimals of
Mouza Dhandra, P.S. Jamtara on which he has constructed 75′ x
45′ shed with corrugated/iron shed, which was surrounded by
brick built pucca wall on monthly rent of Rs. 2000/-;
c. the Deed of Lease will be of a fixed period of 15 years from
01.11.1996 to 31.10.2011, which indicates that Defendant was
tenant in the suit premises till 31.10.2011;
d. it was not denied by the defendant that suit premise was not sold
by Bhagwati Prasad Parsuramka to plaintiff vide registered Deed
of Sale being Sale Deed No. 428/2008;
e. D.W.3 also admitted that the suit premise was transferred in
favour of the plaintiff.
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f. Defendant (D.W.2) has admitted in his deposition that on
17.10.2008 Bhagwati Prasad Parsuramka had informed him
regarding the transfer of land and building in favour of plaintiff.
Defendant has admitted his signature on notice given by
Bhagwati Prasad Parsuramka regarding transfer of suit premises
in favour of plaintiff, which has been marked as Ext. 5.
21. After recording the aforesaid admitted facts, the learned first
appellate court held as under: –
“The admission of defendant regarding information of
transfer of suit premise given by original owner Bhagwati
Prasad Parsuramka in favour of plaintiff itself shows that
defendant/appellant had got knowledge on 17.10.2008
regarding the transfer of suit land in favour of plaintiff and
this fact supports the case of plaintiff. Further the
plaintiff/respondent has also proved by his oral and
documentary evidence that the suit premise was transferred in
favour of plaintiff by the original owner Sri Bhagwati Prasad
Parsuramka through Registered Deed of Sale (Ext. 6). So far
the contention of learned counsel for appellant is that the
defendant was inducted as tenant in the suit premises in total
area of 34 decimals as per lease deed but the plaintiff has
purchased total area of 21.95 decimals. In this regard, on
perusal of Registered Sale Deed (Ext. 6), it is apparent that
plaintiff has purchased the land of area 21.95 decimals along
with old structure as described in schedule of Ext. 6 and he
has acquired the right, title and interest over the said area
along with old structure, which has been shown as suit
premise for which the plaintiff is entitled for.
It further appears that the plaintiff has also proved that
the original owner of suit premise informed to defendant on
17.10.2008 through Ext. 2 regarding the transfer of suit
premise with request to pay the rent to the plaintiff and Ext. 5
which is the admitted signature of defendant Binay Kumar
Dokania on notice dated 17.10.2008 itself shows that
defendant had full knowledge of the content of that letter,
which has been admitted by Defendant himself in his
testimony. The plaintiff/respondent has also proved that after
acquiring the right and interest of suit premises by way of10
registered sale deed, a legal notice was issued to
defendant/appellant Binay Dokania on 22.10.2011 for
vacation of the suit premises as the defendant defaulted in
payment of rent since 01.11.2010 till October, 2011. The said
notice has been proved as Ext. 4. The appellant has contended
that he issued notice for renewal of lease to original owner
Bhagwati Prasad Parsuramka on 21.08.2011, which was not
received by him and subsequently in response to the notice
(Ext.4) of plaintiff, a reply notice dated 08.11.2011 (Ext. A/3)
was sent by him to plaintiff for extension of lease as per
Clause 11 of Lease Deed but no reply was given by plaintiff. It
appears that defendant/appellant has admitted in his testimony
that on 17.10.2008, he was informed by original owner
Bhagwati Prasad Parsuramka regarding transfer of suit
premises in favour of plaintiff but initially he did not send any
request letter to the plaintiff for extension of lease of suit
premise rather he has admitted that he has not paid any
amount of rent after expiry of the lease. Further it appears
that the defendant/appellant by issuing reply letter (Ext. A/3)
clearly admitted the plaintiff, as landlord. Thus, all these
documents including the oral as well as documentary
evidences, clearly show that plaintiff Decorum Nirman Pvt.
Ltd. represented through Sri Shib Kumar Parsuramka had
acquired all the rights and interest in the suit property, which
has been transferred to plaintiff through registered Sale Deed
dated 17.07.2008 (Ext. 6) and the plaintiff had stepped into the
shoes and possessed all the right in the suit premise which the
transferrer had. It is settled by the Hon’ble Apex Court in AIR
2015 SC 2459 that “after the transfer of lessor’s right in
favour of the transferee, the letter gets all the rights and
liabilities of the lessor in respect of the subsisting tenancy and
attornment by the tenant is not necessary to confer validity of
the transfer of the landlord’s right.” Thus, it is clear to
mention here that where the landlord transfers his interest, an
attornment by the tenant in favour of transferree is not
necessary to create a relationship of landlord and tenant. Here
in this case, the transfer of suit premises through sale deed
(Ext. 6) by the original owner in favour of plaintiff has not
been denied and the plaintiff/respondent acquired the suit
premises as mentioned in the schedule of registered sale deed
dated 17.07.2008 and thereafter, the plaintiff has admitted that
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he used to receive the monthly rent from defendant and in this
regard he has proved the A/c book as Ext. 3 by which plaintiff
has admitted that he received rent from October, 2008 to
October, 2010 and the plaintiff has further proved that after
October, 2010, the defendant did not pay any rent, which the
defendant has admitted in his deposition. Thus, in view of
evidences, it is crystal clear that there is relationship of
landlord and tenant between the plaintiff and defendant and
on perusal of impugned judgment, it appears that learned
lower court has rightly come to the conclusion in holding that
there is relationship of landlord and tenant between the
parties and learned lower court has rightly discussed and
decided the issue in favour of plaintiff.”
22. While deciding the issue raised through Point of determination nos.
B and C, it has been held as under: –
“…….. In view of the evidences, it is clear that plaintiff has
purchased the suit premises through registered sale deed (Ext.
6) and the plaintiff represented through Shib Kumar
Parsuramka has pleaded that the suit premise is necessary for
the business purpose and defendant/appellant has not been
able to properly
rebut the bonafide need of plaintiff and in spite of notice to
defendant/appellant, he did not vacate the same but since the
plaintiff is in bonafide need of the suit premise for running
the business for its own, hence, the defendant is liable to be
evicted from the suit premises to the portion as described in
the registered sale deed of plaintiff/respondent, for which the
plaintiff is entitled for.
13. On perusal of pleading and entire evidences, it also
transpires that defendant/appellant has admitted that he was
inducted as tenant in the suit premises by the original land
owner and he has also admitted that the transferee of the suit
premises had issued notice, which was replied by him. The
plaintiff has proved by its oral as well as documentary
evidences that defendant has deposited rent from October,
2008 to October, 2010 and he has proved his A/c Slip, which
has been marked as Ext. 3. He has further claimed that
defendant has stopped payment of rent since 01.11.2010 and
when he did not pay rent till 22.10.2011, he issued legal notice
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through his advocate for vacating the land, which has been
marked as Ext. 4. Although the defendant has stated that he
tendered rent for some months to the original owner of suit
premise of Sri Bhagwati Prasad Parsuramka, but it is
apparent from Ext. 2 and Ext 5 as well as from the admission
of defendant in his testimony that he had knowledge of
transfer of suit premises in favour of plaintiff by the original
owner Bhagwati Prasad Parsuramka and further he has
admitted that suit premises was transferred in favour of
plaintiff and plaintiff issued legal notice and he accepted him
as landlord and he has also admitted that he stopped payment
of rent after expiry of lease. Thus, it appears that knowing
very well the fact that plaintiff is the transferee by virtue of
registered sale deed executed by the land owner Sri Bhagwati
Prasad Parsuramka, he refused the pay the monthly rent to
the plaintiff and when the monthly rent was not paid to
plaintiff from 01.11.2010 till October, 2011, the instant
Eviction Suit filed by plaintiff on the ground of default in
payment of rent also. All these facts have been proved by the
plaintiff by adducing the evidences. The denial of payment of
rent by defendant/appellant to plaintiff itself make the
defendant defaulter and learned lower court has rightly come
to the conclusion that plaintiff/respondent is entitled to receive
the arrear of rent as claimed by plaintiff and is also entitled to
receive the rent at the rate of Rs. 2000/- per month till eviction.
………………………….. Thus, in view of aforesaid
discussion and ongoing through the pleadings and evidences
of the parties, I am of the considered view that the plaintiff
has fully proved the fact that there is relationship of landlord
and tenant between the parties and the plaintiff has personal
necessity of the suit premise as per the property described in
the Sale Deed and has also proved that defendant/appellant
has been defaulter in payment of rent, which had not been
disproved by the defendant/appellant by any material in the
instant case.
14. Thus, considering the entire materials available on record
I find that learned lower court has considered all the evidence
and has rightly decreed the suit of plaintiff directing the
defendant to vacate the suit premises as per the property
described in the Sale Deed of plaintiff (Ext.6) along with
arrear of rent.”
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Substantial question of law nos.1 and 4
23. These two substantial questions are taken up together. The
substantial question no.1 relates to introduction of the sale deed (Exhibit-
6) as additional document on the date of the judgement and substantial
question no.4 is with regard to the contents of the Exhibit-6. In case, it is
held that Exhibit – 6 was wrongly introduced, the same will have to be
excluded from the records and in such a case its contents also cannot be
looked into. Thus, if substantial question no.1 is decided in favour of the
appellant, the substantial question no.4 would become redundant as
Exhibit-6 will have to be excluded for all purposes. However, the
appellate court has referred to the description of property in the sale deed
and compared it with the suit premises and decided the same in favour of
the respondent by observing that the area mentioned in the sale deed was
in addition to the shed area.
24. The records of the eviction suit reveal that on 19.05.2017, the
plaintiff had completed their arguments, and the matter was posted on
29.05.2017 for arguments of the defendant. On 29.05.2017, the arguments
were concluded and it was directed to be posted for judgement on
14.06.2017 and it was also mentioned that the parties could file their
written arguments. However, on 13.06.2017, a petition was moved by the
plaintiff under Order VII Rule 14 (3) read with section 151 CPC,
annexing the registered sale deed no.428 of 2008, and the defendant was
asked to respond to the petition. The matter was taken up on the pre-fixed
date i.e. 14.06.2017, and the plaintiff pressed the application filed under
Order VII Rule 14 (3) read with Section 151 of CPC, to which leave was
granted and the registered sale deed no.428 of 2008 was marked as
Exhibit – 6 by stating that the registered sale deed was a public document
and the objection of the defendant to the petition was rejected and on
14.06.2017 itself which was the day on which the judgement was also
pronounced and was said to have been kept in the record running into 16
pages.
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25. The plaint of the case reveals that the plaintiff claimed in paragraph
6 of the plaint that the original lessor and owner Sri Bhagwati Prasad
Parsuramka sold the lease hold properly to the plaintiff by registered deed
of sale bearing no.428 of 2008 and then the plaintiff became the owner of
the suit property. However, the said registered sale deed was not enclosed
with the plaint.
Order VII Rule 14 reads as follows:
14. Production of document on which plaintiff sues or relies.–(1)
Where a plaintiff sues upon a document or relies upon document in
his possession or power in support of his claim, he shall enter such
documents in a list, and shall produce it in Court when the plaint is
presented by him and shall, at the same time deliver the document
and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of
the plaintiff, he shall, wherever possible, state in whose possession
or power it is.
[(3) A document which ought to be produced in Court by the
plaintiff when the plaint is presented, or to be entered in the list to
be added or annexed to the plaint but is not produced or entered
accordingly, shall not, without the leave of the Court, be received in
evidence on his behalf at the hearing of the suit.]
(4) Nothing in this rule shall apply to document produced for the
cross-examination of the plaintiffs witnesses, or handed over to a
witness merely to refresh his memory.
Order XIII Rule 1 is quoted as under:
(1) Original documents to be produced at or before the settlement of
issues. — (1) The parties or their pleader shall produce on or
before the settlement of issues, all the documentary evidence in
original where the copies thereof have been filed along with
plaint or written statement.
(2) The Court shall receive the documents so produced: Provided
that they are accompanied by an accurate list thereof prepared
in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents– (a) produced
for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory.
15
26. Upon perusal of the aforesaid provisions, it is clear that when a
plaintiff sues upon a document or relies upon a document in his
possession or power to support his claim, then he is required to enter such
document in a list and is required to be produced in the court when the
plaint is presented by him. It also provides that whenever such document
is not in possession or power of the plaintiff, he shall state in whose
possession or power it is. However, order VII Rule 14(3) provides that a
document which ought to be produced in court by the plaintiff when the
plaint is presented or to be entered in the list to be added or annexed to the
plaint but is not produced or entered accordingly shall not without the
leave of the court be received in evidence on his behalf at the hearing of
the suit. Rule 14(3) is an exception permitting the introduction of
additional documents with the leave of the court but non-compliance of
Rule 14(1) does not automatically invalidate the proceedings and
therefore, the court has to see while granting leave to file document at
later stage as to whether the document is disputed or the document
introduces a new cause of action and as to whether the defendant had
ample opportunity to address any objection to the document and its
relevance in the suit. The discretion of the court to grant leave to file
document under Rule 14(3) has to be exercised judiciously and the court
should ensure that such additional document must not prejudice the other
party and the court has to ensure a fair trial and facilitating justice.
Additional document under Rule 14(3) can be admitted only when its non-
production along with the plaint is explained by the plaintiff and such
explanation is accepted by the court and/or the court is satisfied that the
document is necessary to decide the real dispute between the parties.
27. So far as the present case is concerned, there is no doubt that the
case of the plaintiff was based on the plea that the plaintiff had purchased
the suit property from the original landlord of the defendant and the
plaintiff claimed to be the landlord after purchase. Admittedly, the sale
deed was not filed with the plaint and the certified copy of the sale deed
16
was sought to be introduced as additional document after conclusion of
arguments and the petition seeking introduction of the certified copy of
the registered sale deed was filed just one day prior to the judgement and
was allowed on the date of the judgement by stating that it was a public
document. The order simply says that the sale deed is a public document
and hence introduction of the sale deed as additional document was
allowed. The order does not reveal as to why such last-minute
introduction of the additional document was necessary for deciding the
case or to facilitate justice particularly when the sale of the property
through the sale deed was an admitted fact even from the side of the
defendant in the written statement.
28. This Court is of the considered view that merely because the sale
deed was registered and in view of the trial court, it was a public
document, the same was not enough to allow its introduction as additional
document on the date of the judgement without citing any further reason
to exercise such a discretion. In view of the aforesaid discussions
regarding the manner and the stage, the additional document was
introduced on the date of the judgement, this Court is of the considered
view that such introduction of additional document cannot be sustained in
the eyes of law. Accordingly, the 1st substantial question of law is
answered in favour of the appellant and against the respondent and it is
held that the certified copy of the registered sale deed No. 428 of 2008
dated 17.07.2008 could not have been exhibited on the date of the
judgment merely by stating that it was a public document without citing
any further reason to exercise such a discretion that too on the date of
the judgement.
29. Having held as aforesaid with respect to the substantial question
no.1, the matter has to be examined considering the consequences of
excluding Exhibit 6 i.e. registered sale deed no.428 of 2008 dated
17.07.2008.
17
30. From perusal of the entire written statement, this Court finds that
execution of the registered deed of sale in connection with the suit
property by the original landlord in favour of the plaintiff is not in dispute
but the defendant had the objection that the lease was yet to expire in the
year 2011 and the defendant had the right of renewal of the lease, and
therefore, it was asserted that the suit property could not have been sold to
the plaintiff. It was also asserted that the defendant never paid rent to the
plaintiff and the rent was being paid to the original landlord, who at times
use to accept and at times use to refuse the same. Thus, neither the
execution of the sale deed in connection with the suit property nor the
area/boundaries of the suit property was in dispute from the side of the
defendant and consequently non-production of certified copy of the sale
deed is not fatal to case of the plaintiff. Since, the certified copy of the
sale deed produced on the date of the judgement has to be excluded, the
description of the property mentioned in the sale deed is also required to
be excluded. However, the learned appellate court has dealt with the
contention of the appellant that the defendant was inducted as tenant in the
suit premises in total area of 34 decimals as per lease deed but the plaintiff
has purchased total area of 21.95 decimals and held that on perusal of
Registered Sale Deed (Ext. 6), it was apparent that plaintiff has purchased
the land of area 21.95 decimals along with old structure as described in
schedule of Ext. 6 and had acquired the right, title and interest over the
said area along with old structure, which has been shown as suit premise
for which the plaintiff is entitled for.
31. This Court is of the considered view that since the sale deed
(Exhibit-6) has to be excluded from the evidence, the area mentioned in
the sale deed also becomes irrelevant and the fact remains that the
purchase of the suit premises by the plaintiff and the description of suit
premises/tenanted premises having not been disputed in the written
statement, the dispute with regard to area which has been raised by
referring to the description in the property in the sale deed, does not
18
survive any more in absence of Exhibit – 6. There being no such dispute in
the written statement of the defendant with regard to the area of the
tenanted property, the area/description of property in the sale deed has no
bearing in this case as the reference to the sale deed (Exhibit-6) has to be
excluded. It is just to put on record that even if sale deed (Exhibit-6) were
to be taken into consideration such plea has been rejected by the learned
appellate court as discussed above.
32. As a cumulative effect of the aforesaid findings and considering
the plaint and the written statement where no dispute was raised with
respect to the area of the tenanted premises and also the findings with
regard to substantial question no. (1) by which the sale deed (Exhibit-6)
is to be excluded, the substantial question no. 4 is answered against the
appellant and in favour of the respondent.
Substantial question nos.2 and 3
33. So far as the substantial question nos.2 and 3 are concerned, upon
perusal of the plaint and written statement, this Court finds that the
plaintiff has duly disclosed about the factum of purchase of the property
by the aforesaid registered sale deed in paragraph 6 which is quoted as
under:
“(6) That the original Lessor and Owner, Sri Bhagwati Prasad
Parsuramka sold the said Lease Hold Property to the Plaintiff by
Registered Deed of Sale bearing No 428 of 2008, dated 17/07/2008 of
Jamtara Sub Registry Office and since then, the plaintiff became the
Owner of the suit properties.”
34. The written statement reveals that the fact of purchase of the suit
property by the plaintiff is not in dispute from the side of the defendant.
However, a stand was taken by the defendant in paragraph 5 of the written
statement that there was an oral agreement between the defendant and the
original landlord in or about June 2008 when the landlord expressed his
willingness to sell the suit property and it was agreed that as and when the
landlord would sell the property, he would give preference to the
defendant for purchasing the same provided both agree on a price. Thus,
admittedly no deal was finalized between the ex-landlord and the
19
defendant with regard to the sale-purchase of the suit property. The
defendant has further taken a stand in paragraph 8 of the written statement
that the lease in favour of the defendant was yet to expire on 31.11.2011
and the defendant asserted his claim for renewal and asserted that the
property could not have been sold to the plaintiff during the subsistence of
the lease as there was a condition of renewal attached to the lease deed. It
was also asserted by the defendant that the defendant never paid rent to
the plaintiff and never recognized the plaintiff as landlord to the suit
property and the defendant all along paid the rent to the original landlord
and when he refused to accept the rent at the instant of the plaintiff, the
rent was being sent to him through postal money order and sometimes the
original landlord used to accept the said rent and sometimes refuse to
accept and the defendant took a stand he never paid rent to the plaintiff.
35. The learned court has held by appreciating the materials on record
that Defendant (D.W.2) has admitted in his deposition that on 17.10.2008
Bhagwati Prasad Parsuramka, had informed him regarding the transfer of
land and building in favour of plaintiff. Defendant has admitted his
signature on notice given by Bhagwati Prasad Parsuramka, regarding
transfer of suit premises in favour of plaintiff, which has been marked as
Ext. 5. The plaintiff/respondent has also proved that after acquiring the
right and interest of suit premises by way of registered sale deed, a legal
notice was issued to defendant/appellant Binay Dokania on 22.10.2011 for
vacation of the suit premises as the defendant defaulted in payment of rent
since 01.11.2010 till October, 2011. The appellant has contended that he
issued notice for renewal of lease to original owner Bhagwati Prasad
Parsuramka on 21.08.2011, which was not received by him and
subsequently in response to the notice (Ext.4) of plaintiff, a reply notice
dated 08.11.2011 (Ext. A/3) was sent by him to plaintiff for extension of
lease as per Clause 11 of Lease Deed but no reply was given by plaintiff.
The plaintiff has admitted that he used to receive the monthly rent from
defendant and in this regard, he has proved the A/c book as Ext. 3 by
20
which plaintiff has admitted that he received rent from October, 2008 to
October, 2010 and the plaintiff has further proved that after October,
2010, the defendant did not pay any rent, which the defendant has
admitted in his deposition. Thus, in view of evidences, it is crystal clear
that there is relationship of landlord and tenant between the plaintiff and
defendant. Thus, there is a clear finding of fact that the defendant was
informed that the suit property has been sold to the plaintiff and he has to
pay the rent to the plaintiff and the defendant had also paid rent to the
plaintiff for a few months and then defaulted and continued to default and
in the meantime, the lease period has also expired. The learned court have
also recorded a finding of personal necessity in favour of the respondent.
The learned courts have recorded concurrent findings that the default in
payment of rent was from 2010, and therefore, it has come on record that
the defendant had acknowledged the plaintiff as landlord and had also
paid rent for some time but subsequently discontinued to pay the rent.
36. The fact remains that the defendant was informed about the fact that
the plaintiff had purchased the suit property from the original landlord,
and consequently, the plaintiff enters into the shoes of the original
landlord, and the defendant was duly bound to pay rent to the plaintiff, but
having not been paid so, the courts have found the defendant as a
defaulter. The fact also remains that the period of lease has expired and no
application for renewal of lease was furnished by the defendant before the
plaintiff.
37. Consequently, this Court is of the considered view that the
pleadings of the respective parties and the materials placed on record were
sufficient to conclude that the plaintiff had acquired the suit property by
virtue of registered sale deed no.428 of 2008 dated 17.07.2008 and had
accordingly acquired the status of landlord of the defendant. This Court is
also of the view that there is no legal bar in sale of property which is
under tenancy and during the subsistence of lease and the defendant
having known about the execution of sale deed, never challenged the
21
same. Thus, the learned court recorded findings of landlord tenant
relationship between the parties on the basis of materials on record and
have taken into consideration the admitted position that the suit property
was sold by the original landlord in favour of the plaintiff.
38. Section 109 of the Transfer of Property Act, 1882 reads as under:
109. Rights of lessor’s transferee.–If the lessor transfer the
property leased, any part thereof, or any part of his interest
therein, the transderee, in the absence of a contract to the
contrary, shall possess all the rights, and, if the lessess 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, ny reason only of such transfer cease
to be subject to any of the liabilities imposed him by the lease,
unless the lessee elects to treat the transferre as the person
liable to him:
Provided that the transferee is not entitled to arrears of rent
due before the transfer, and that, if 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 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.”
39. Section 109 of the Transfer of Property Act contemplates that when
right, title and interest in immovable property stand transferred by
operation of law, the successor in interest would be entitled to the rights of
the predecessor. No material has been shown by the learned counsel for
the appellant that there was any contract to the contrary to disentitle the
respondent -plaintiff to seek eviction from the tenanted property.
40. The appellant in the present case is challenging the derivative of the
title of the plaintiff and not the title of the original landlord. However,
such a plea is not acceptable in view of Section 109 as the respondent
plaintiff, being the subsequent owner, will derive the title of the original
22
owner/landlord and will step into the shoes of the original owner/landlord.
Hence, the challenge as regards the derivative title of original
owner/landlord is of no consequence in the given background of this case.
Section 109 would apply in support of the respondent-plaintiff to seek
eviction of the defendant from the suit property on account of default in
payment of rent and expiry of the lease period. In terms of Section 109 of
the Transfer of Property Act, it is clear that attornment by the appellant –
defendant -tenant is not necessary for the transfer of property leased out to
the defendant by the original owner/landlord. As such, the appellant –
defendant -tenant became a tenant under the plaintiff by operation of law
under Section 109 of the Transfer of Property Act. The Hon’ble Apex
Court in the case of Gopi @ Govardhannath, Dead By LRs. v. Ballabh
Vyas reported in 2022 SCC OnLine SC 1279, held that attornment by
lessee is not necessary for transfer of property leased out to him under
Section 109 of the Transfer of Property Act, 1882. The Hon’ble Court has
held as under:
“29. In the light of the finding on the issue whether the
respondents in R.C. No. 262 of 2008 were malafidely denying the
title of the petitioner therein over the petition schedule property, S.
109 of the Transfer of Property Act would assume relevance in
regard to the right of the petitioner in R.C. No. 262 of 2008 to seek
eviction of the respondents therein, from the petition schedule
property. Admittedly, the predecessor-in-interest of the appellants
viz., late Shri Balraj, was the tenant in respect of the petition
schedule property under its original owner Smt Phool Kumari. A
bare perusal of S. 109 of the Transfer of Property Act would
reveal that if a landlord transfers the property leased out or any
part of it, the transferee, in the absence of any contract to the
contrary, shall possess all the rights of the landlord. Hence, the
impact of Ext. P3, in the absence of any contract to the contrary, is
that the respondent herein has stepped into the shoes of Smt Phool
Kumari. In terms of S. 109 of the Transfer of Property Act it is
clear that attornment by the lessee is not necessary for the transfer
of the property leased out to him. Thus, the inevitable consequence
of transfer of a leased-out in accordance with law to a third party,
in the absence of a contract to the contrary, is that the third party
concerned would not only become its owner having title but also
would step into the shoes of the vendor as the landlord in relation
to the lease holder at the relevant point of time. In such
23
circumstances, the findings of the courts below that there exits
jural relationship of landlord and tenant between the respondent
and the appellants can only be held as the correct and lawful
conclusion in the light of the evidence on record based on the
legal position.”
41. Accordingly, both the substantial question nos.2 and 3 are
answered against the appellant (tenant) and in favour of the respondent
(landlord). This Court is of the considered view that the learned courts
have rightly concluded on the basis of the aforesaid sale deed that the plaintiff
is the landlord of the defendant and in view of the sale deed, the plaintiff can
claim that he has become landlord of the property.
42. The fact remains that finding of default in payment of rent and also
the expiry of lease period is not under challenge.
43. Substantial Question of law No. 1 is answered in favour of the
appellant and against the respondent, while Substantial Questions No.2 to
4 are answered in favour of the respondent and against the appellant.
Considering the aforesaid discussions in the light of the facts and
circumstances of this case and in spite of Substantial Question of law No.
1 having been decided in favour of the appellant, this second appeal
stands dismissed. Consequently, the decree passed by the learned trial
court and affirmed by the learned appellate court does not call for any
interference.
44. Pending interlocutory application, if any, is dismissed as not
pressed.
(Anubha Rawat Choudhary, J.)
Saurav/
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