Gopi @ Goverdhannath (Dead) By Lrs. vs Ballabh Vyas

CIVIL APPEAL NO. OF 2022 (@ Special Leave Petition (C) No. 27679 of 2018)

Gopi @ Goverdhannath (d) by LRs. & Ors. …Appellants

Versus

Sri Ballabh Vyas …Respondent

J U D G M E N T

C.T. RAVIKUMAR, J.

1. Leave granted.

2. In this appeal by Special Leave the appellants

assail the judgment and order dated 10.07.2018 in Civil

Revision Petition No. 2752 of 2018 of the High Court

of Judicature at Hyderabad for the State of Telangana

and the State of Andhra Pradesh. It arises out of R.C.

No. 262 of 2008 brought by the respondent herein under

Section 10(2)(i), 10(2)(vi) and 10(3)(a) of the Andhra Signature Not Verified

Pradesh Buildings (Lease, Rent and Eviction) Control Digitally signed by DEEPAK SINGH Date: 2022.09.22 15:11:48 IST Reason:

Act, 1960 (for short “the Act”), for the eviction of

Page 1 of 31 appellant Nos. 2 & 3 herein and the other respondents

therein, who are all the successors-in-interest of the

original tenant Shri Balraj, being his wife and

children, from the petition schedule property. The

petition schedule property is a Mulgi (small shop),

admeasuring 29 square yards, abutting main road of

Mangalhat, Hyderabad. They were sought to be evicted

on three-fold grounds viz., non-payment/default in

payment of rent, [(S.10(2)(i)], tenant’s denial of the

title of the landlord not being bonafide [(S.10(2)(vi)]

and landlord’s right to be put in the possession of

property for his own business use [(S.10(3)(a)].

3. As per the order in R.C. No.262 of 2008 dated

07.11.2015, it was allowed and the respondents therein

were directed to vacate the petition schedule property

and to handover its vacant physical possession to the

petitioner therein (the respondent herein) within 3

months from the date of the order. The unsuccessful

respondents therein took up the matter before the

Appellate Authority, viz., Court of Chief Judge, City

Small Causes Court at Hyderabad, as Rent Appeal No.57

of 2016. The Appellate Authority considered the grounds Page 2 of 31 of attack and found them meritless and consequently,

dismissed the appeal. It is aggrieved by the same that

the stated Civil Revision Petition was filed before the

High Court, which ultimately culminated in the impugned

judgment.

4. As a matter of fact, pending the proceedings before

the rent controller, the wife and two sons of Late

Balraj, who were also arrayed as respondents along with

the appellant Nos.2 and 3 herein, died. Later, during

the pendency of the present SLP the original petitioner

No.1, the other son of Late Balraj also died and

subsequently, his legal heirs were brought on record

as petitioner Nos. 1.1 and 1.2. The proforma

respondents viz., respondents 2 to 4 were deleted from

the array of parties, at the instance of the

appellants, as per order dated 11.10.2015 passed in

I.A. No. 147594 of 2018. Thus, the present proceedings

are being pressed into and pursued by the original

petitioner Nos. 2 & 3 and the other petitioner Nos.1.1

and 1.2, who are the legal heirs of original petitioner

No.1, in the present SLP. Hence, hereinafter, in this

Page 3 of 31 appeal they would be referred to as ‘the appellants’

and the petitioner in R.C. No.262 of 2008, who is the

respondent in this appeal, would be referred to as ‘the

respondent’, unless otherwise mentioned specifically.

5. Succinctly stated the case of the respondent (the

petitioner in RC No. 262 of 2008) is as follows: -

The petition schedule property is a small shop

(Mulgi) bearing Municipal D. No. 14-1-22 as described

hereinbefore. One Smt. Phool Kumari was its owner. She

was the original landlord and late Shri Bhandari Balraj

(the predecessor-in-interest of the appellants) was the

tenant, of the said shop. In the year 1985, the father

of the respondent by name Vasudev Vyas purchased the

petition schedule property from the aforesaid Smt.

Phool Kumari in the name of the respondent Ballabh

Vyas, then a minor aged 10 years, under Ex.P-3

registered sale deed dated 27.06.1985. The pre-existing

tenancy created between late Sh. Balraj and the said

original landlord was oral in nature and the rent

initially fixed was enhanced from time to time. On

27.06.1985 itself Ext. P-1 rental deed was executed

Page 4 of 31 between Late Sh. Balraj and the respondent, represented

by his natural father and guardian Vasudev Vyas, on a

monthly rent of Rs.300/-per month exclusive of

municipal property tax and electricity charges. It was

enhanced from time to time and finally fixed at Rs.

2,000/-. The original tenant Shri Balraj died on

15.05.1996 and thereafter the tenancy was being

continued by his wife and children and the original

respondent No.1 was paying rent initially. But, they

failed to pay rent from May, 2006 to April, 2008.

Prior to the filing of R.C. No.262 of 2008, the

respondent issued Ex.P-4 legal notice dated 30.05.2008

requesting the tenants to pay the arrears of rent and

to vacate and handover vacant possession of the

petition schedule property. It was also stated therein

that he is unemployed and requires the petition

schedule property for running his own business. On its

receipt, the respondents therein caused Ex. P-5 reply

disputing the very title of the petitioner therein

(respondent herein) over the petition schedule

property. It is thereafter R.C. No. 262 of 2008 was

filed.

Page 5 of 31

6. Obviously, the stated R.C. was defended on a number

of grounds by the respondents therein viz., appellant

Nos. 2 & 3 herein and the predecessors-in-interest of

the other appellants herein, inter alia, contending

that they are the owners of the petition schedule

property. As a matter of fact, they have not only

denied the title of the respondent over it but also

claimed its title contending that late Shri Balraj had

purchased the petition schedule property as per a sale

deed executed in the year 1985. The case put forth on

their behalf before the rent controller was that one

Phool Kumari was the original owner of the petition

schedule property (Mulgi) and she had leased it out to

Shri Balraj, he had been the tenant from 1960 to 1985

and then, Phool Kumari offered to sell it to him and

late Shri Balraj purchased the same for a valid

consideration in the year 1985.

7. The further contentions of the respondents in R.C.

No. 262 of 2008 viz., the appellant Nos. 2 & 3 herein

and the predecessors-in-interest of the other

appellants were as follows: -

Page 6 of 31

“That late Shri Balraj obtained Rs.15,000/-

from Vasudev Vyas, the father of the respondent, as loan for paying sale

consideration to Phool Kumari, that the father of the respondent put forth a condition for payment of loan and accordingly, on his insistence sale deed was registered in the name of the respondent as security, though late Shri Balraj had subsequently repaid the loan amount of Rs.15,000/- the father of the respondent had failed to return the petition schedule property to late Shri Balraj, and that in the year 2003 the said Mulgi was dismantled and it was renovated and therefore, in view of Section 32 (b) of the Act its provisions are inapplicable.

Raising all such contentions the Rent Control Petition was sought to be dismissed. However, as noticed

hereinbefore, the Rent Controller allowed R.C.No.262 of 2008. The appeal preferred before the Court of Chief Judge, City Small Causes Court at Hyderabad as Rent Appeal No.57/2016 was dismissed and the Revision filed against the same, viz., Civil Revision Petition No.2752 of 2018 was then, dismissed by the High Court as per the impugned judgment.”

Page 7 of 31

8. On 11.10.2018, this Court issued notice and ordered

that the status quo, as on that date be maintained. As

per the order dated 12.1.2022, it was ordered thus:

“Needless to mention that it will be open to the respondent landlord to urge of questions including the dis-entitlement of the heirs to claim any tenancy interest in the property in question.”

9. Heard Mr. Abhijit Basu, learned counsel for the

appellants and also Mr. K. Parameshwar, learned counsel

for the respondent. Virtually, the learned counsel for

the parties reiterated the contentions raised before

the Courts below with some additional points. We will

refer to the rival contentions, a little later after

looking into the real scope of consideration of the

instant appeal.

10. There can be no doubt with respect to the scope of

an appeal under Section 136 of the Constitution of

India by special leave against the concurrent findings.

In such matters, re-appreciation of evidence is not the

normal rule and the power thereunder would be sparingly

Page 8 of 31 exercised where the findings are absolutely perverse.

A finding can be said to be perverse if it is founded

on no evidence to support the same or totally against

the weight of evidence. So also, it can be said to be

perverse if material evidence was missed out for

consideration or a totally irrelevant and immaterial

aspect formed the foundation for such a finding.

11. A four-Judge Bench of this Court considered the

scope of appeal under Section 136 of the Constitution

by special leave, against the concurrent findings in

Kurapati Venkata Mallayyaand Anr. v. Thondepu Ramaswami

And Co. & Anr.1 In paragraph 9 herein it was held:

“9. The first point urged before us by Mr. Ranganadham Chetty on behalf of the appellant firm is that the High Court, as well as the Subordinate Judge were in error in holding that the bales in question had been purchased by the appellant firm from the respondent firm. This, however, is a question of fact and since the two courts below have found against the appellant firm on this point this Court would not ordinarily interfere with such a finding.

1 (AIR 1964 SC 818)

Page 9 of 31 Mr. Ranganadham Chetty, however, contended on the authority of the decision in

Bibhabati Devi V. Kumar Ramendra Narayan Roy that the practice of the court in appeals by special leave is not a cast iron one and that it would, therefore, be open to this Court to depart from it in an appropriate case. The aforesaid decision was referred to by this Court in Srinivas Ram Kumar V. Mahabir Prasad and it was pointed out that when the courts below have given concurrent findings on pure questions of fact, this Court would not ordinarily interfere with them and review the evidence for the third time unless there are exceptional circumstances justifying a departure from the normal practice.”

12. We do not find any reason to make a further survey

of the authorities on the said point as the same is the

view which is being followed consistently.

13. Now, we will revert to the case on hand. A scanning

of the rival pleadings would reveal the common

contention of the parties. They would reveal that Smt.

Phool Kumari was the original owner of the petition

schedule property (Mulgi) and she had leased it out to Page 10 of 31 late Shri Balraj, the predecessor-in-interest of the

appellants. It is also the admitted case of the

appellants that Smt. Phool Kumari was the landlord and

late Shri Balraj had been paying rent to her. The

diversion in pleadings occurs thereafter. According to

the respondent, his father Vasudev Vyas purchased the

petition schedule property from Smt. Phool Kumari as

per Ext.P3 registered sale deed dated 27.6.1985 in his

name when he was a minor aged 10 years and according

to the appellants Shri Balraj, their predecessor-in-

interest purchased it from Smt. Phool Kumari for a

valid consideration of Rs.15,000/-, in the year 1985.

14. Evidently, the respondents in R.C. No. 262 of 2008

viz., appellants 2 and 3 and the predecessors-in-

interest of the other appellants not only denied the

title of the respondent but also claimed the title over

the petition schedule property (Mulgi) contending that

the same was purchased from Smt. Phool Kumari by late

Shri Balraj, their predecessor-in-interest in the year

1985 for a valid consideration. Late Shri Balraj

obtained Rs. 15,000/- from the father of the petitioner

Page 11 of 31 therein (the respondent in this appeal) for effecting

payment to Smt. Phool Kumari and only on the demand of

the petitioner’s father, the sale deed in respect of

the petition schedule property was got registered by

Shri Balraj in the name of the petitioner therein

(respondent in this appeal) as a security.

15. Based on the rival pleadings the Rent Controller

framed the following points for consideration: -

1. Whether the respondents malafidely denying the title of the petitioner?

2. Whether this Court lacks inherent jurisdiction?

3. Whether there is jural relationship?

4. Whether the respondents are liable for eviction from the petition schedule property?

5. To what relief?

16. Obviously, all the points were decided in favour

of the petitioner therein (the respondent herein) and

accordingly, the R.C. No.262 of 2008 was allowed.

Consequently, the respondents therein were directed to

vacate the petition schedule property and handover its

Page 12 of 31 vacant physical possession to the petitioner therein

(the respondent herein) within three months from the

date of the order. It is this order which was confirmed

concurrently by the Appellate Authority and the High

Court.

17. We have carefully scanned the order of the Rent

Controller and the judgments of the Appellate Authority

as also the High Court. The question is what is the

perversity that invites interference with the

concurrent findings. Since notice and status quo

ordered by this Court as per order dated 11.10.2018 was

followed by the order dated 12.01.2022 we will consider

that question in detail.

18. We have already referred to the pleadings of the

parties taken up before the Rent Controller. When the

petitioner (the respondent herein), as landlord,

claimed eviction on the ground of tenants’ denial of

his title over the petition schedule property and to

establish such denial as not being bonafide produced

its registered sale deed, whether the appellants and

their predecessors—in-interest could justify the

Page 13 of 31 denial merely by asserting that Shri Balraj, their

predecessor-in-interest, had purchased it for a valid

consideration of Rs.15,000/- in the year 1985, without

producing any supporting material(s) admissible in

evidence? Certainly, the answer can only be in the

negative. This is because in respect of the sale of

an immovable property, worth value which makes the sale

deed compulsorily registrable, the genuineness of the

denial of title cannot be decided based on presumptions

and oral assertations ignoring a valid registered

document. In the aforesaid context, it is only

worthwhile to refer to the decision of the Bombay High

Court in Mohanlal Sohanlal v. Pannalal Jankidas2 and

also Sections 9 and 54 of the Transfer of Property Act,

1882 (hereinafter for short, ‘the TP Act’) and Section

17 of the Indian Registration Act, 1908. In paragraph

17 of the decision in Mohanlal Sohanlal2 it was held:

“In my opinion this is a case in which what was

said by Lord Simonds in delivering the judgment of

the Judicial Committee in 49 Bom. L.R. 244 applies

with equal force (P.245):

2 AIR 1948 Bom 133

Page 14 of 31 Upon this apparently simple question oral evidence voluminous and bewildering has been given and their Lordships find themselves in agreement with Chagla J. who in the Appeal Court said: 'In a case where oral testimony is of such an unreliable and untrustworthy character, the safest policy would be to let the documents speak for themselves.' This does not mean that, when the question whether a transaction is a sale or a mortgage, form is to be preferred to substance. It is an inviolable rule that upon such a question the Court must find the substance behind the form. But where the oral evidence is unreliable and contradictory the Court cannot safely depart from the smitten evidence of the document.”

19. Section 9 of the TP Act states that a transfer of

property can be made without writing in every case in

which a writing is not expressly required by law. But

then, as per Section 54 of the TP Act, sale of immovable

property of a value of Rupees one hundred and upwards

can be made only under a registered instrument.

Section 17 of the Indian Registration Act, 1908 speaks

of documents of which registration is compulsory. As

per Clause (b) of sub-Section (1) thereof non- Page 15 of 31 testamentary instruments which purport or operate to

create, declare, assign, limit or extinguish, whether

in present or future, any right, title or interest,

whether vested or contingent, of the value of one

hundred rupees and upwards, to or in immovable

property, shall be compulsorily registered. In the

decision in Lachhman Dass v. Ram Lal & Anr.3 it was

held that the real purpose of the said Section is to

secure that every person dealing with the property,

where such documents require registration, may rely

with confidence upon statements contained in the

register as a full and complete account of all

transactions by which title may be affected.

20. In this case the oral evidence adduced by the

respondent is to the effect that his father had

purchased the petition schedule property from Smt.

Phool Kumari under Ext. P3, registered sale deed dated

27.06.1985, in his name when he was aged 10 years. Per

contra, on behalf of the appellants what is pleaded and

argued is that the petition schedule property was

purchased by their predecessors-in-interest, Shri

3 (1989) 3 SCC 99

Page 16 of 31 Balraj from the very same vendor viz., Smt. Phool

Kumari in the year 1985, for a valid consideration of

Rs. 15,000/-. It is in this context that Ext. P3 would

act as a sure and clear pointer to where the truth

lies.

21. Evidently, the respondent herein (the petitioner

in R.C. No. 262 of 2008) brought on record Ext. P3, a

registered sale deed executed in his favour in respect

of the petition schedule property. While considering

the question of evidence produced on behalf of the

appellants herein in the said proceedings it is

relevant to refer to the following recital from the

order of the Rent Controller:

“On careful perusal of the entire record, this

Tribunal could not find any document to show the title

of the respondent over the petition schedule property.

As such this Court has to infer that without any valid

document, the respondents are denying the ownership of

the petitioner in spite of that petitioner exhibited

Ext.P3 in his favour.” Obviously in the above extracted

recital the reference ‘the respondents’ was with

respect to the appellants 2 and 3 and the predecessors-

Page 17 of 31 in-interest of the other appellants in this appeal and

the reference “the petitioner” was with reference to

the respondent herein.

22. What is the evidence adduced by the respondents in

R.C. No.262 of 2008 to deny the title of the petitioner

therein (the respondent)? Juxtaposed with Ext. P3 sale

deed, whether the oral assertation of appellants 2 and

3 and the predecessors-in-interest of appellants 1.1

and 1.2 would be sufficient to outweigh Ext. P3 in the

matter of consideration of their bonafides behind

denial of the title of the respondent? The indisputable

and undisputed fact is that except the oral assertation

of purchase of the petition schedule property by Shri

Balraj not even a scrap of paper to support the same

was produced on behalf of the appellants, either before

the Rent Controller or before the Appellate Authority.

In this context, it is relevant to refer to the oral

testimony of late Bhandari Goverdhan Nath, who was the

first respondent in R.C. No.262 of 2008 and the

original first petitioner in the SLP from which this

appeal arises. During his cross-examination as RW1 he

would depose that there was no registered sale deed in

Page 18 of 31 favour of his father as relating to the petition

schedule property. Taking note of the amount of

‘consideration’ of the alleged sale, it is evident that

transfer/conveyance of the said immovable property

could have been effected legally and lawfully only

through a registered deed of conveyance. Thus, the

indisputable position obtained in this case is that the

respondent herein/the petitioner therein, had adduced

documentary evidence of outright purchase of the

petition schedule property under Ext. P3 registered

sale deed. On the other hand, on behalf of the

respondents therein no admissible evidence to outweigh

the same to establish their bonafides in the denial of

title of the respondent herein, was adduced. It is a

fact that the predecessors-in-interest of the

appellants herein filed O.S.No.1210 of 2008 before the

Court of Senior Civil Judge, Hyderabad and the said

fact and also the factum of its dismissal as per Ext.R3

was brought out in evidence by RW1 as well, while being

in his examination-in-chief. In fact, the petitioner

therein/respondent herein has brought on record the

judgment in O.S. No.1210 of 2008, which document was

Page 19 of 31 brought on the side of the appellants also as Ext.R3,

and the decree passed thereon as Exts.P7 and P8.

Obviously, RW1 then deposed that as against Ext.R3 an

appeal was preferred as A.S. No.123 of 2014 and it is

pending on the files of the Court of Additional Chief

Judge, City Civil Court, Hyderabad. It is not

inappropriate to state at this juncture that now in the

written submission filed on behalf of the appellants

it is stated that the said appeal was also dismissed

subsequently and in the second Appeal filed against it

notice before admission was ordered. The institution

and dismissal of the said original suit brought out in

evidence was considered by the Rent Controller Court

only to answer the point as to whether the respondent

was malafidely denying the title of the respondent

herein/the petitioner therein. After such

consideration based on the oral and documentary

evidence before it, the Rent Controller came to the

conclusion that the respondents therein were denying

the title of the respondent herein malafidely.

23. All these aspects were given due consideration by

the Appellate Authority as also by the High Court while Page 20 of 31 considering the case of the appellants herein in their

respective jurisdiction. It is to be noted that even

before this Court the appellants got no case that their

predecessor-in-interest Shri Balraj purchased the

petition schedule property from Smt. Phool Kumari as

per a registered sale deed. In the light of the

indisputable position thus obtained and in view of

Ext.P3, which is a registered sale deed executed in

favour of the respondent herein/the petitioner therein

by none other than Smt. Phool Kumari on 27.6.1985, the

denial of the title of the respondent herein over the

petition schedule property by the respondents in R.C.

No.262 of 2008 and now, by the appellants herein can

only be taken as one sans bonafide. In other words,

it is malafide.

Curiously, the respondents in R.C. No.262 of 2008

had also canvassed the position that ‘the Act’ is not

applicable by virtue of the provision under Section 32

(b) thereof, before the stated proceedings. It was so

raised contending that the petition schedule property

(Mulgi) was dismantled and in its place a new building

was constructed. A careful scanning of the judgment of Page 21 of 31 the Rent Control Court, the Appellate Authority and the

High Court would reveal that the tenability of the said

contention was carefully considered and rejected.

24. It is to be noted that the Rent Controller observed

that no evidence to establish the factum of dismantling

of the petition schedule property was produced and

proved before it. That apart, the Appellate Authority

observed that no document revealing obtainment of

necessary permission for demolition and construction

of the petition schedule property was brought on

evidence on behalf of the appellants. Obviously, the

appellants took up a contention that the petition

schedule property being a very small shop does not

require any such permission. At the same time, the

fact is that they had not brought out any provision

under any law in support of the said contention.

Explanation 1 to Section 32 (b) of the Act would reveal

that in order to hold that a building was substantially

renovated not less than 75 per cent of the premises was

to be built new in accordance with the criteria

prescribed for determining the extent of renovation.

No evidence to establish such requirement is available Page 22 of 31 on record. According to us, the hollowness of the said

contention would be revealed if a reference is made to

the definition of the term “building” given under

Section 2 of the Act, which is an inclusive definition.

Going by its definition it takes in its fold any house

or hut or part of a house or hut. For the purposes of

the Act when a hut or even part of a hut falls within

the definition of building, in the absence of any

provision under any law supporting the said contention

of the appellants that the petition schedule property

being a small shop will not attract the provisions of

the Act, is only to be rejected. In fact, it was

rightly rejected by the Courts below.

25. Obviously, upon perusing Ext. R3 (Ext. P7) judgment

the Appellate Authority has also found that on the side

of the appellants herein adverse possession was also

raised in O.S. No.1210 of 2008 to establish the claim

of title. Consequently, the Appellate Authority made

an observation that the claim of the title based on the

sale deed and a contention based on adverse possession

could not co-exist, evidently, for the purpose of

considering the question whether the denial of title Page 23 of 31 of the respondent herein was made malafidely. In this

context it is worthy to refer to a three-Judge Bench

decision of this Court in Narasamma & Ors. v. A.

Krishnappa (Dead) Thr. LRs.4 In the said decision it

is held that independent claim of title and adverse

possession simultaneously in respect of the same

property on the same date would amount to taking

contradictory pleas. It is also held therein that when

a plea of adverse possession is projected it is

inherent in the nature of it that someone else is the

owner of the property and therefore the plea on the

title and adverse possession are mutually inconsistent

and the latter can begin to operate only when the former

is renounced. When once it is found that a plea of

adverse possession in its inherent nature projects that

someone, other than who took up the said contention is

the owner of the property concerned; when it is

indisputable that the case of the appellants and their

predecessors-in-interest is that their predecessor-in-

interest late Sh. Balraj had purchased the petition

schedule property as per a registered deed in the year

4 (2020) 15 SCC 218

Page 24 of 31 1985 and when it is proved before the rent controller

that the said property was purchased in the name of the

petitioner therein viz., the respondent herein, then

aged only 10 years, by his father as per Ext. P3

registered sale deed dated 27.06.1985 we cannot find

fault with the Appellate Authority in taking into

account the factum of raising the plea of adverse

possession by the appellants and/or their predecessors-

in-interest in O.S. No. 1210 of 2008 for the limited

purpose of looking into the question of malafides in

the denial of title of the respondent herein over the

petition schedule property. Indeed, it was so noted

to support and sustain the finding of the rent

controller that the respondents in R.C. No.262 of 2008

were denying the title of the respondent without

bonafides.

26. A reference to Section 101 of the Indian Evidence

Act will not be inapposite in the context of the

aforesaid contentions. Though, on behalf of the

appellants herein a consistent case, raised to resist

the case of the respondent herein based on Ext. P3

registered sale deed, is that late Shri Balraj

Page 25 of 31 purchased the petition schedule property in the year

1985 for a valid consideration of Rs.15,000/-, no

documentary evidence was produced before the Rent

Control Court, before the Appellate Court or even

before the High Court. It is to be noted that no such

document is produced even before this Court. Thus, it

is obvious that despite asserting a specific fact that

Shri Balraj had purchased the property as per sale deed

in the year 1985 the appellants and their predecessors

had failed to prove the same, though, in the light of

Section 101 of the Evidence Act, the burden was upon

them. The burden of proof is of importance where by

reason of not discharging the burden which was put upon

him, a party must eventually fail. (See the decision

in C. Abdul Shukoor v. Arji Papa Rao5).

The long and short of all aforesaid discussions is

that the concurrent findings of the courts below on the

issue that the title of the respondent was malafidely

denied by the appellants is the rightful conclusion on

appreciation of the facts and evidence obtained in this

5 AIR 1963 SC 1150

Page 26 of 31 case and is not infected with perversity. It calls for

no interference.

27. 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, Section 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 Section 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 Section 109 of

the Transfer of Property Act it is clear that Page 27 of 31 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

property by the landlord 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 circumstances, the findings of the courts below

that there exists 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.

28. Now, we will move on to consider the next question

as to whether the direction for eviction of the

appellants from the petition schedule property calls

for interference on the ground of perversity in

finding. The Rent Controller, the Appellate Authority

and the High Court considered the question whether the

requirement of the respondent to get vacant possession

Page 28 of 31 of the petition schedule property is bonafide and

acceptable as a ground for eviction. The pleadings and

the evidence of the respondent herein as PW-1 is to the

effect that he is unemployed and requires the petition

schedule property for establishing his own business to

eke out his livelihood. Though, the respondent herein

was cross-examined nothing could be elicited to

establish that his requirement for personal occupation

for the aforesaid purpose is not genuine and that it

is only a ruse for evicting the appellants. So also,

nothing could be elicited to establish that the

respondent possesses other vacant premises of his own

to establish his business. RW1, who was the original

first petitioner in the SLP from which this appeal

arises, while being examined-in-chief in R.C. No. 262

of 2008 would say that he did not file any document to

show that the petitioner therein viz., the respondent

herein got other non-residential building(s) or mulgies

in Feelkhana. Nothing was brought to our attention

that would establish non-consideration of any material

or consideration of irrelevant material, to arrive at

the finding that the requirement to get vacant

Page 29 of 31 possession of the petition schedule property of the

respondent is malafide. In short, on a careful

scanning of the concurrent findings on all issues, as

above, we find no reason to hold that such findings are

infected with perversity or manifest injustice. In the

said case, this appeal must fail. Accordingly, it is

dismissed. No order as to costs.

29. Though, the appellants, by virtue of their denial

of title of the respondent do not really deserve grant

of time to vacate the petition schedule property, we

are inclined to grant two months’ time from the date

of the judgment to the appellants to handover vacant

possession of the petition schedule property to the

respondent, in the interest of justice. To get the

benefit of the extended time thus granted, the

appellants shall file the usual undertaking before this

court within a period of two weeks that they would give

vacant possession of the petition schedule property

without any demur to the respondent and also that they

would pay Rs. 3000/- to as monthly rent during the

extended period of two months.

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30. The appeal stands dismissed subject to the above.

All pending applications are disposed of.

................,J.

(Indira Banerjee)

................,J.

(C.T. RAVIKUMAR) NEW DELHI;

September 22, 2022

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