Sunday, 1 July 2018

Whether eviction decree can be passed against tenant for non payment of arrears of rent due prior to transfer of tenanted premises?

It is to be seen here that in so far as the decree passed on the ground of arrears of rent is concerned, the Court has observed that the demand notice was issued by the landlords to the tenant on 3rd November, 1976, demanding the arrears of rent from 1-4-1976. The sale deed in favour of the landlords is dated 16th November, 1976. The Appellate Court has held that the landlords were claiming their entitlement to recover the rent from 1-4-1976 on the basis of the agreement of sale and copy of that agreement of sale has never been produced on record. The Appellate Court has held that in the absence of copy of the agreement of sale being placed on record, the landlords cannot be held to be entitled to the rent from 1-4-1976. The Appellate Court has further relying on the provisions of section 109 of the Transfer of Property Act, held that a transferee does not become entitle to arrears of rent due before the date of transfer and therefore, the landlords could not have claimed the arrears of rent for the period before 16-11-1976.

4. The learned Counsel appearing for the petitioners urged before me that as in the sale deed, there is a recital that by agreement of sale, right to recover the rent from 1-4-1976 was given to the landlords, the landlords were entitled to recover the rent from 1-4-1976. It is however, to be seen here that firstly the document of agreement of sale is not produced on record and secondly, in view of the provision of section 109 of the Transfer of Properly Act, it is crystal clear that a transferee is not entitled to arrears of rent due before the date of transfer and therefore, the amount of rent due from the tenant for the period before the date of transfer cannot be recovered as an arrears of rent and therefore a decree of eviction cannot be passed against the tenant under section 12 of the Bombay Rent Act, for non payment of those dues. I find no fault with the findings recorded by the Appellate Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 4600 & 4599 of 1986

Decided On: 05.02.1998

Sukhlal Chunilal Ghagani Vs. Harish Suvarne & another

Hon'ble Judges/Coram:
D.K. Deshmukh, J.
Citation: 1998(3) ALLMR 761





1. Both these petitions arise out of two civil suits filed by the petitioners and both the suits had been tried together, therefore, both these petitions can be conveniently disposed of by common order.

2. These petitions are directed against the orders passed by the Joint Judge, Pune, dated 18th March, 1985, in Civil Appeal Nos. 450 of 1983 and 451 of 1983. These appeals were filed by the respondents in these petitions challenging the judgment and decrees passed by the 4th Addl. Small Causes Judge, Pune dated 24-9-1982 in Suit No. 224 of 1977 and Suit No. 220 of 1977. These suits were filed by the petitioners claiming to be owners of house on plot No. 428 Guitekadi Pune and further claiming that the respondents are their tenants, who have been let out the premises for residence. The landlords sought decree of eviction against the tenants mainly on the ground that the tenants are not ready and willing to pay the rent and that the tenants have made permanent alterations in the suit premises. The trial Court found in favour of the landlords on both these grounds and therefore, decreed the suits for possession in favour of the landlords and directed the tenants to vacate the suit premises. In the appeals filed by the tenants, however, Appellate Court reversed the findings recorded by the trial Court and allowed the appeals, set aside the judgment and decrees passed by the trial Court and dismissed the suits. In these petitions by landlords, therefore, the orders passed by the Appellate Court are challenged.

3. It is to be seen here that in so far as the decree passed on the ground of arrears of rent is concerned, the Court has observed that the demand notice was issued by the landlords to the tenant on 3rd November, 1976, demanding the arrears of rent from 1-4-1976. The sale deed in favour of the landlords is dated 16th November, 1976. The Appellate Court has held that the landlords were claiming their entitlement to recover the rent from 1-4-1976 on the basis of the agreement of sale and copy of that agreement of sale has never been produced on record. The Appellate Court has held that in the absence of copy of the agreement of sale being placed on record, the landlords cannot be held to be entitled to the rent from 1-4-1976. The Appellate Court has further relying on the provisions of section 109 of the Transfer of Property Act, held that a transferee does not become entitle to arrears of rent due before the date of transfer and therefore, the landlords could not have claimed the arrears of rent for the period before 16-11-1976.

4. The learned Counsel appearing for the petitioners urged before me that as in the sale deed, there is a recital that by agreement of sale, right to recover the rent from 1-4-1976 was given to the landlords, the landlords were entitled to recover the rent from 1-4-1976. It is however, to be seen here that firstly the document of agreement of sale is not produced on record and secondly, in view of the provision of section 109 of the Transfer of Properly Act, it is crystal clear that a transferee is not entitled to arrears of rent due before the date of transfer and therefore, the amount of rent due from the tenant for the period before the date of transfer cannot be recovered as an arrears of rent and therefore a decree of eviction cannot be passed against the tenant under section 12 of the Bombay Rent Act, for non payment of those dues. I find no fault with the findings recorded by the Appellate Court.

5. In so far as the other ground viz. raising of permanent structure is concerned it was the case of tenants that as one block was divided into two blocks and was let out to two tenants, suitable alterations were made by the previous landlord and that they have not made any alterations in the suit premises. The Appellate Court has set aside the findings recorded by the trial Court in this regard by observing that the trial Court has cast burden of proof wrongly on the defendants. The Appellate Court has observed that as the plaintiff had come to the Court with a specific case that it is the tenants who have done these alterations, it was for the landlord to lead evidence to establish that it is the tenants who have done alterations. However, the landlord has not led any evidence in this regards as even according to the landlord, the alterations were made before November, 1976, when he purchased the property, obviously, the landlord does not have personal knowledge therefore, it is for the landlord to lead evidence and the Appellate Court has held that the landlord has not led any evidence adequate to establish that the alterations were made by the tenants, it is further to be seen here that even if it is assumed that alterations were made by the tenants in the suit premises, does not entitle the landlord to decree of eviction against the tenant. As observed by the Supreme Court in its judgment in the case of Venkatlal G. Pitti and another v. M/s. Bright Bros. Pvt. Ltd. MANU/SC/0824/1987 : [1987]3SCR593 the landlord has further to establish that because of the alterations, damage is caused to the building itself. The observations of the Supreme Court in paragraph 21 read as under:

"There are numerous authorities dealing with how the question whether the structure is a permanent structure or not should be judged. It is not necessary to deal with all these. One must look to the nature of the structure, the purpose for which it was intended and take a whole perspective as to how it affects the enjoyment, the durability of the building etc. and other relevant factors and come to a conclusion."
In the present case, it is not even the allegation of the landlord that because of the alleged alterations, any damage is caused to the building or its utility is impaired in any way. In these circumstances, therefore, in my opinion no fault can be found with the findings recorded by the Appellate Court in this regard also.

6. In the result, the petitions fail and are dismissed. Rule in both these petitions are discharged with no order as to costs.

7. Petitions dismissed.




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