- (1.) THIS is a second appeal by the defendant against the judgment and decree of the learned Senior Civil Judge, Jodhpur dated the 21st December, 1957, reversing the decree of the Munsif, Jodhpur dated the 31st May, 1947.
(2.) THE facts giving rise to this appeal are that in the City of Jodhpur there is a house near Gulabsagar whose boundaries are given in the plaint. This house once belonged to Mangilal and Ballabhdas. THEy rented it out to the defendant-appellant on a rent of Rs. 3/- p. m. This rent was,later on,raised to Rs. 3/8. THE exact dates on which the house was leased out by Mangilal Ballabhdas or the date on which the rent was increased have not been clarified by either party. Mangilal and Ballabhdas brought a suit against the appellant for ejectment, but it was dismissed. The plaintiff's case is that Mangilal and Ballabhdas sold their house to him on 4. 7. 50. He therefore, brought a suit against the appellant for his eviction treating him as a trespasser, because the defendant did not attorn to him and he also questioned the validity of the house sale in the plaintiff's favour. In that suit, the defendant's contention was that he was a tenant from Mangilal and Ballabhdas and therefore the plaintiff could not treat him as trespasser. The trial court decreed the suit in the plaintiff's favour, but on appeal by the defendant the decree was reversed by the first appellate court and the plaintiff's suit was dismissed with costs. The plaintiff's then brought the present suit for ejectment of the defendant on the basis of tenancy. It was averred by him that the defendant had become his tenant from 4. 7. 50,i. e. , the date on which the plaintiff purchased the property from Mangilal Ballabhdas,that the defendant thereafter did not pay him monthly rent, that an amount of Rs. 126/- was outstanding against the defendant on account of rent upto the date of the suit and therefore it was prayed that a decree for arrears of rent and ejectment should be passed against the defendant. It was also stated by the plaintiff that the defendant was not entitled to protection under sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, (No. 17 of 1950) because he was defaulter and also because the plaintiff, who was upto this time living in a rented house, needed the house in dispute for his own personal use and occupation. The defendant contested the suit on several grounds. In the first instance, it was urged by him that the house was not sold by Mangilal Ballabhdas to the plaintiff for Rs. 4000/-as asserted by the plaintiff and that the sale was fictitious and it was effected only for ousting the defendant from the possession of the disputed house. He also denied that the plaintiff wanted the house for his own use or that the defendant had become a defaulter. In view of the pleading of the parties, the trial court framed the following issues; (1) Whether the defendant was barred from raising the plea that the plaintiff was not the defendant's landlord on account of the decision of the District Court, Jodhpur dated 30. 4. 54, according to which the relationship of landlord and tenant was held as established. (2) (a) Whether the defendant's objection that Mangilal Ballabhdas did not sell the house in dispute to the plaintiff on 4. 7. 50 for Rs. 4000/- was barred by the principle of res judicata and could not be raised. (2) (b) If that objection is not barred by the principle of res judicata, then whether the plaintiff had purchased the house in dispute on 4. 7. 50 for Rs. 4000/- from Mangilal Ballabhdas. (3) Whether the present suit was barred on the principles of res judicata, because the former suit for possession by the plaintiff were dismissed. (4) Whether the plaintiff requires the house in dispute reasonably and bonafide for his own occupation? (5) Whether the notice dated 23. 12. 54 given by the plaintiff to the defendant was not in accordance with sec. 106, Transfer of property Act. ? (6) Whether the defendant has not paid rent to the plaintiff from 4. 7. 50 and has become a defaulter and so the plaintiff is entitled to evict the defendant from the house. After recording evidence of both the parties, the trial court decided issues Nos. (1) and (2) (a) against the plaintiff. Issues Nos. 2 (b) and (3) were decided in the plaintiff's favour, but then issues Nos. 4, 5 and 6 were again decided against the plaintiff and therefore his suit was dismissed. Aggrieved by this decision, the plaintiff went in appeal which was heard by the Senior Civil Judge, Jodhpur, since it was transferred to him by the learned District Judge. The first appellate court has decided all the issues. against the defendant. It may be mentioned here that on the first day of hearing, the defendant had stated in the trial court that he was always willing to pay the rent and that the court should decide what he was liable to pay. The trial court proceeded under sec. 13 (4) of the Rajasthan Premises) Control of Rent and Eviction) Act and found that the defendant was liable to pay Rs. 160/- for arrears of Rent together with interest. The defendant deposited this amount and thereafter there was no dispute between the parties so far as the question of arrears or rent was concerned. There was no appeal about the arrears of rent in the first appellate court, nor that question has been raised in this second appeal. The main contentions raised by learned counsel for the appellant in this Court are that the sale between Mangilal Ballabhdas and the plaintiff was fictitious and the decision of the first appellate court on that point is erroneous. It is next urged that the notice given by the plaintiff was invalid under the provision of sec. 106 of the Transfer of Property Act and on that account also the suit ought to have been dismissed. Thirdly, it is urged that the plaintiff did not require the house in dispute reasonably and bonafide for his own use or occupation. The fourth contention is that the defendant was not a defaulter, that he had tendered the rent to the plaintiff by money order and that it was the plaintiff who was at fault in refusing to accept the same. It is therefore prayed that the decree of the appellate court should be set aside and that of the trial court be restored. It is obvious from the objections raised by the learned counsel for the appellant that they are covered by issues Nos. 2 (a), 4, 5 & 6. Now to begin with issue No. 2 (a) it may be pointed out that not only the appellate court but even the trial court has decided the same against the defendant. It appears from the record of the trial court that the plaintiff has produced a registered sale deed Ex. 1 dated 4-7. 50. The plaintiff has appeared in the witness box and stated on oath that he had certainly given the amount of Rs. 4000/-mentioned in that document to Mangilal Ballabhdas and that the sale is not fictitious. One of the vendors namely Mangilal has also appeared in the witness box on behalf of plaintiff and has stated that he and Ballabhdas had together sold away the house in dispute to the plaintiff and that there was no fiction in that sale. He has also stated that Ballabhdas is dead and that his signatures are also present on the document. In the face of the statements of P. W. Mangilal and the plaintiff and the registered document, there seems no reason to think that the sale was fictitious. No reliable evidence has been led on behalf of the defendant on this point. Learned counsel for the appellant has referred to the evidence of D. Ws. Bhagwati Prasad, Jahanvi Sharan and Radhe Charan. Bhagwati Prasad has stated that Mangilal had told the defendant in his presence that he should increase the rent to Rs. 80/- p. m. and that if he did not do so, he would sell away the house fictitiously to somebody else and get it vacated. Jahanvi Sharan has stated that Mangilal had asked him to convey it to Baburam that if he would not vacate the house, or increase the rent, he would sell the property to somebody else fictitiously. Radhe Charan has given his statement to the same effect. The evidence of these three witnesses has not been relied upon by the trial court and a perusal of their statements shows that they are really not worthy of any credence. It is not easy to understand that if Mangilal Ballabhdas wanted to make a fictitious sale in favour of plaintiff, they would make a broadcast of that before these three witnesses at different times. It may be that Mangilal Ballabhdas might have sold the property out of sheer disgust, because they are unable to eject the defendant. But it cannot be said for that reason that the sale was fictitious. There is a note on the sale deed that Mangilal had admitted before the Sub-Registrar that he had received the amount of the sale. Then, as pointed out above, Mangilal has himself come in the witness box and it is not easy to understand that he would create title in the plaintiff fictitiously and cast a clot on his own title to the property simply to get the defendant ejected. In my opinion, the courts below have committed no mistake in holding that the sale was not fictitious. I see no force in this argument and it is fit to be dismissed. Now coming to issue No. 4 it would be proper to decide issue No. 5 first, because if the plaintiff's case fails on that point, then even the decision of issues No. 4 & 6 in his favour would not be of any help to him. Learned counsel for the appellant has urged that it was incumbent upon the plaintiff to prove that the notice dated 23. 12. 54 given by him was in accordance with sec. 105 of the Transfer of Property Act, that he had failed to prove this issue and that the first appellate court has taken an erroneous view. It is pointed that even though it be assumed that the plaintiff had purchased the property on 4. 7. 50, a new tenancy was not created on that date and it was not correct on the part of the plaintiff to give a notice requiring the defendant to vacate the property on 4. 2. 55. According to learned counsel the tenancy between his client and Mangilal Ballabhdas commenced from the 1st of the month according to the Gregorian calendar and therefore the notice should have been given terminating with the end of the tenancy. Learned counsel for the respondent has, on the other hand, tried to support the view of the first appellate court to the effect that the tenancy between the present plaintiff and the defendant commenced from 4. 7. 50 on which date the plaintiff purchased the property from Mangilal Ballabhdas. I have given due consideration to these arguments and in my opinion the view expressed by the first appellate court cannot be maintained. It is common ground between the parties that the defendant was a tenant of Mangilal Ballabhdas. The plaintiff has merely entered into the shoes of Mangilal Ballabhdas and he has not got a right more than what was possessed by his predecessors-in-interest. If the tenancy between the appellant and Mangilal Ballabhdas commenced on the 1st of the calendar month, a new tenancy in favour of the respondent could not be created on 4. 7. 50 simply because the property was transferred to him on that date. Sec. 109 of the Transfer of Property Act clearly lays down that if the lessor transfers the property leased, or any part of 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 transferred. It further lays down that 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. It is quite clear from the provisions of this section that the plaintiff after the transfer of the property in his favour possessed only those rights which were possessed earlier by Mangilal Ballabhdas and he was subject to all those liabilities to which Mangilal Ballabhdas were subject before the transfer. Therefore if the plaintiff wanted to terminate the tenancy, he should have given a notice expiring with the end of the month of the tenancy according to the contract between Mangilal Ballabhdas on the one hand and the defendant on the other. Unfortunately, this case was fought out very badly by both the parties!. The only objection raised by the defendant in his written statement was that the notice given by the plaintiff was not valid. It was not clarified why the notice was invalid. The trial court also did not clarify this point before framing the issues. It seems that it was only at the time of the arguments that it was urged before the trial court that the notice was invalid, because it did not expire with the end of the month of the tenancy. Neither the plaintiff made it clear before joining issue that there was a fresh contract between him and the defendant that the tenancy would begin on 4. 7. 50, nor did the defendant make it clear that the tenancy with Mangilal Ballabhdas commenced from the first of the month and it expired with the end of the calendar month. Learned counsel for the respondent has urged that there was a written contract between Mangilal and the defendant and it was agreed by the defendant in that document that he would only require three months notice. It is contended that there was thus a contract between the parties to the contrary and therefore the provisions of sec. 106 did not apply in terms about the validity of notice. He says that when this matter was raised at the time of arguments in the trial court, he presented an application requesting that the court should allow him to produce that document which was already presented before the court in the suit filed by Mangilal Ballabhdas, but the permission required was not given by the trial court. He has presented an application requesting this Court to allow him to produce additional evidence on this point. I would have allow this application in order to avoid further litigation between the parties, but learned counsel for the respondent has raised another point on account of which this evidence becomes unnecessary. It has been urged by him that the tenancy between the appellant and Mangilal Ballabhdas on which the stand has been taken by learned counsel for the appellant had commenced at a time when the Transfer of Property Act was not in force and therefore the appellant is not entitled to a notice strictly in terms of sec. 106 of the Transfer of Property Act. In this connection he has referred to the statement of P. W. Mangilal who has stated that the defendant was living in his house as a tenant for the last 15 or 16 years. This statement was given on 3. 11. 55 and this would show that the tenancy had commenced some time in 1939 or 1940. The Transfer of Property Act came into force in Marwar. i. e. the former Jodhpur State on 29th March, 1949, and therefore the provisions of sec. 106 of the Transfer of Property Act are not attracted in this case. Learned counsel for the appellant has admitted that the Transfer of Property Act was not in force in Jodhpur State before 29 March, 1949, but it is contended by him that Mangilal himself has admitted that the rent which was initially settled at Rs. 3/-p. m. was later on increased to Rs. 3/8/- p. m. and therefore a fresh tenancy was created between the parties. According to learned it is likely that this tenancy might have come into existence after 1949, but this new argument cannot prevail because there is nothing on record to show that the increase in rent was affected after 29. 3. 49 and therefore the provisions of sec. 106 of the Transfer of Property Act cannot be invoked. Learned counsel for the appellant has referred to Rattan Sen Sacchar vs. Smt. Krishna Kaur (1) to support his argument to the effect that even if the Transfer of Property Act was not applicable, its principles did apply and his client was entitled to a notice according to sec. 105 of the Transfer of Property Act. I have gone through this case and in my opinion can be easily distinguished on facts. It appears in that case the first notice given by the landlord was of one week's duration while the second notice gave 11 days' time to the defendant to vacate the premises. It is thus clear that even 15 days' notice was not given to the defendant to vacate the premises and therefore the revision application was allowed and it was held that notices were not valid. In the present case, it is common ground between the parties that the notice was given on 23. 12. 54 and the defendant was required to vacate the premises on 4. 2. 55. It is thus clear that the defendant was given more than a month's time to vacate the premises and no possible prejudice could occasion to him. The provision of sec. 106 of the Transfer of Property Act requiring the notice to expire with the end of the month of the tenancy is of a very technical nature and this provision cannot be invoked to a case to which the Transfer of Property Act would not apply. Therefore although I do not agree with the reasons given by the learned Civil Judge, about the validity of the notice, I find that the notice given by the respondent cannot be said to be invalid as sec. 106 did not apply in terms and therefore objection raised by learned counsel cannot prevail. Now coming to issue No. 4 it is urged by the appellant's learned counsel that the respondent had mentioned in his plaint that he wanted, the house, because the house which was occupied by him at that time had insufficient accommodation and the landlord wanted him to quit that house, but these facts could not be proved by him. It is contended that under the circumstances the appellate court should have held that the house was required by the respondent reasonably and bonafide. Learned counsel for the respondent has urged on the other hand that the respondent was living in a rented house and when he had purchased one for himself, he should not be compelled to continue to live in a rented house. It is further pointed out by him that para 5 (2) of the plaint has not been correctly interpreted by learned counsel for the appellant, para 5 (2) of the plaint runs as follows : Ii eqnsbz dks bl edku dh futh jgokl ds fy;s bona fide necessity gs D;ksafd eqnsbz vhkh ftl edku esa 131 ekgokj ij fdjk;s ij jg jgk gs og dkqh Hkh ugha gs vksj mls Nqm+kus dk rdktk Hkh gsa According to learned counsel for the respondent, the plaintiff has used the word "hkh" twice in this paragraph and that makes it quite clear that he not only wanted it for his own occupation, but also because the house occupied by him was insufficient and the landlord thereof wanted him to quit the house. According to him, the use of the word "hkh" twice in this paragraph shows that these were additional grounds and that the use of the words "d;ksafd" was either redundant or used in the sense of 'and'. It would suffice to say that this paragraph was very unhappily drafted and it is clear that either the word "d;ksafd" should not have been used or the word "hkh" was redundant. It is not possible to reconcile the use of both the words in the same paragraph. This does not however weaken the plaintiffs case because it appears from the reply filed by the defendant that he did not contest the plaintiff's averment to the effect that he was living in a rented house and paying Rs. 13/8/-p. m. or that his landlord wanted him to quit the house. O. 8 R. 5 C. P. C. lays down that "every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. " when these two facts were not denied by the defendant it follows that they were impliedly admitted by him. Learned counsel for the appellant has drawn my attention to the proviso to this Rule which says that " (he court may in its discretion require any fact so admitted to be proved otherwise than by such admission. " It is pointed out by him that the trial court had framed issue No. 4 in its discretion and therefore the above argument was not available to the respondent. I have given due consideration to this argument and in my opinion it does not help the appellant much. Issue No. 4 is as follows: " Whether the plaintiff' requires the house in dispute reasonably and bonafide for his own occupation? It did not call upon the plaintiff to prove that he was living in a rented house or that he was paying Rs. 13/8/- P. m. as rent or that the landlord wanted him to quit the house. The plaintiff, therefore, confined himself to the argument that since he had purchased a house of his own and since he was living in a rented house, he required the house purchased by him reasonably and bonafide for his own occupation. Learned counsel for the appellant has urged that simply because a person purchases a house it cannot be said that he needs it reasonably and bonafide for his own occupation, since there are many persons who prefer to live in a rented house and lease out their own property. Learned counsel is true in saying that there are quite a large number of people who prefer to live in a small rented house and give their own large buildings on rent in order to earn an income. But this does not mean that if a person living in a rented house purchases a house of his own and if he wants to occupy it, he does not need it bonafide and reasonably. In the present case, the appellant is paying only Rs. 3/8/- p. m. for the house purchases by the plaintiff. The plaintiff on his part is paying Rs. 13/8/- P. m. for the house which he has taken on rent. The plaintiff has produced P. W. Roop Raj who has stated that he is realising Rs. 13/8/- P. m. from him for rent. If the plaintiff has purchased his own house and if he wants to save Rs. 9/8/ -. , it cannot be said that he does not require it reasonably or bonafide. There is thus little force in this argument and it is fit to be dismissed.
(3.) NOW coming to the last issue No. 6 it is urged by appellant's learned counsel that his client had tendered rent for the first two months to the respondent after he had purchased the house and it was accepted by him. Thereafter, he sent the rent of the next 3 months by moneyorder, but it was not accepted by the respondent. It is urged that the respondent having refused to accept the moneyorder, it was no longer necessary for the appellant to continue to send him the rent by moneyorder every month and hence he was not a defaulter. It is further pointed out that when the appellant received notice for vacating the premises and paying arrears of rent, he sent a reply to the respondent by his notice Ex. A5 that he was always ready and willing to pay the rent. Under these circumstances, it was not proper on the part of the appellate court to hold that the appellant has been a defaulter. Learned counsel for the respondent has urged in reply that it was the duty of the appellant to tender the tent every 6 months, if not earlier, and that since he had committed 3 defaults within a period of 18 months, he was liable to eviction. It is also contended that the respondent never refused to accept the moneyorder. I have considered these arguments and it may be observed that the appellant has produced a postal receipt of the moneyorder sent by his client which is marked as Ex. A2. This document shows that an amount of Rs. 10/8/- was remitted by the appellant to the respondent but the moneyorder was returned to the appellant since it was not accepted by the respondent. Sec. 13, sub-sec. (3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, lays down that "for the purpose of clause (a) of sub-sec. (1) a tenant shall be deemed to have paid or tendered the amount of any rent due from him if he has remitted such amount to the landlord by postal moneyorder at his ordinary address. " The appellant having produced Ex. A2, a presumption arises in his favour that he had tendered the amount of Rs. 10/8/- as rent and it was for the respondent to rebut that the said moneyorder did not reach him. There being no such evidence, it must be deemed that the money was tendered to the respondent. In the case of Gauri Shanker Agrawal vs. Ganga Prasad (2), it was observed that clause 13 of the Bihar House Rent Control Order (1942) protected a tenant who was in the arrears of rent from ejectment so long as he was willing to pay rent. It was further held that it was not the intention of the law that the tenant should be forced to make useless offer and send money to the landlord by moneyorder which would without doubt be refused. The provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, are similar to the provisions of the law referred in the above case. In the view which was taken in the case cited above it would be difficult to hold that the appellant was a defaulter. Moreover,even if it be assumed for the sake of argument that he was a defaulter, he could not be evicted since he deposited the entire amount which was determined by the court on the first day of hearing under sec. 13 (4) of the said Act. In the case of Daulatram vs. Bhomraj (3) it was observed that sub-sec. (4) of sec. 13 makes it clear that inspite of the defaults on the part of tenant the court would still protect him if he pays the arrears of rent, the interest thereon and the costs of the suit as determined by the court under sub-sec. (4) on or before the date fixed in the order. The first appellate court's decree regarding the ejectment of the appellant cannot therefore be allowed to stand on the basis of its decision on issue No. 6 but since issue No. 4 and 5 have been decided in favour of the respondent, that decree must stand. The appeal is therefore dismissed with costs. .;