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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3391    OF 2015 (arising out of S.L.P.(C) NO.19487 of 2014)

Dr. Ambica Prasad …..Appellant(s)

Versus

Md. Alam and another ..Respondent(s)

JUDGMENT

M. Y. EQBAL, J.  

Leave granted.

2. This  appeal  by  special  leave  is  directed  against  the  

judgment and order dated 04.04.2014 of the Gauhati High  

Court whereby the revision petition filed by the respondents  

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was allowed and the eviction suit filed by the appellant was  

dismissed.   

3. The  litigation  between  the  parties  commenced  when  

the appellant filed an eviction suit against Abdul Karim, the  

father of the respondents.  The case of the appellant was  

that he had became the owner of the suit property by virtue  

of  two  exchange  deeds  executed  on  23.04.1975  with  his  

brother  PW3 Ranjeet  Prasad,  the  original  owner.  In  1968,  

before  the  execution  of  the  said  exchange  deed,  PW3  

Ranjeet Prasad was said to have let one of the rooms in the  

building in the suit property to Rahim Baksh, the father of  

Abdul  Karim  and  the  grandfather  of  the  respondents.  

However,  even after the execution of the exchange deed,  

PW3 Ranjeet Prasad was stated to have continued collecting  

rent from the tenants of the suit property including Rahim  

Baksh  and  on  Rahim’s  death,  his  son  Abdul  Karim  till  

February, 2007 with the consent of the appellant. In 2007,  

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the appellant was stated to have taken over the affairs of  

the  suit  property,  mutated  his  name  as  the  owner  and  

requested Abdul Karim to execute a fresh agreement with  

him. The appellant contended that Abdul Karim had not only  

failed to execute a fresh agreement but also failed to pay  

the rent except for the electricity bills.  The appellant also  

cited bonafide need of the suit property for the purpose of  

opening  a  medical  clinic  being  a  retired  surgeon.  The  

appellant hence prayed for the eviction of Abdul Karim.  

4. Defendant Abdul Karim filed written statement denying  

all the allegations and alleged that PW3 Ranjeet Prasad had  

executed tenancy agreement dated 28.12.1968 in favour of  

Rahim  Baksh  and  later  on  executed  tenancy  agreement  

dated 20.05.2006 in his favour. He denied being informed of  

the exchange deed dated 23.04.1975 and contended that  

Ranjeet Prasad was his landlord and not the appellant. The  

defendant  Abdul  Karim alleged that  since they refused to  

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accept the rent  from him from March,  2007 onwards,  the  

defendant deposited the rent in court. The defendant prayed  

for the dismissal of the suit.   

5. The  trial  court  noted  that  PW3  Ranjeet  Prasad  had  

represented  himself  to  be  the  landlord  in  the  agreement  

dated 20.05.2006 and in the rent receipts and also filed a  

suit  for  eviction  against  one  of  the  tenants  in  the  suit  

property in  the capacity  of  a  landlord.  PW3 was noted to  

have never stated being the representative of the appellant  

or there being a property exchange. Even if it was assumed  

that he had received the electricity charges, the appellant  

was held to have failed to prove himself as the landlord as  

the  appellant  had  not  produced  any  evidence  of  having  

received rent from any of tenants.  The mutation entry in his  

name was held to be not proof of title in the suit property.  

Considering the deposition of Abdul Karim as DW1, wherein  

he stated that the appellant had refused to accept the rent  

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from him, the trial court held that the appellant had waived  

his right to be called a landlord. The trial court held that PW3  

Ranjeet Prasad was the landlord of the suit property under  

section  2(c)  of  the  Assam Urban  Areas  Rent  Control  Act,  

1972 (in short,  “Rent Act”).   The trial  court dismissed the  

suit,  rejecting  plaintiff-appellant’s  contention  that  Abdul  

Karim had  defaulted  in  the  payment  of  rent  and  that  he  

needed the suit property for  bonafide use on the grounds  

that the appellant was not the landlord of the suit property  

and Abdul Karim had been admittedly depositing the rent in  

the court.  

6. Aggrieved  by  the  decision  of  the  trial  court,  the  

appellant preferred an appeal before the District Court. The  

appellate court noted that the ownership of the suit property  

has been proved in the light of the exchange deed, which  

remained unchallenged by the defendant and supported by  

PW3 Ranjeet Prasad. The appellate court further noted that  

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the plaintiff served notice requesting Abdul Karim to attorn  

the appellant as the landlord and pay the rent to him. The  

appellate  court,  therefore,  held  that  the  appellant  is  the  

landlord of the suit  property considering the deposition of  

Abdul  Karim that  the appellant  had refused to accept the  

rent from him, the deposition of PW3 Ranjeet Prasad that he  

had directed all the tenants to pay the rent to the appellant  

from  March,  2007  onwards  and  the  admission  of  the  

respondent no.  1 (DW2) son of  Abdul  Karim,  that  he was  

paying the electricity charges to the appellant. Abdul Karim  

was  held  to  have  defaulted  in  the  payment  of  rent  from  

March, 2007 onwards as he was depositing rent in the court  

in the name of PW3 Ranjeet Prasad and not the appellant  

despite  knowing that  the  appellant  was  the  landlord.  The  

appellant also proved the need for bonafide use as he and  

his wife were medical practitioners wanting to open a clinic  

in the rented premises and as the defendant Abdul Karim  

owns  another  premises  and  would  not  hence  be  facing  

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difficulty. Allowing the appeal, the appellate court directed  

the defendant Abdul Karim to vacate the suit property.   

7. Aggrieved respondents, therefore, preferred a revision  

petition before the High Court. The High Court observed that  

the  appellate  court  has  not  considered  the  tenancy  

agreements dated 20.12.1968 and 20.05.2006, which were  

also not mentioned in the depositions of the appellant (PW1)  

and Ranjeet  Prasad (PW3)  and the plaint.  The High Court  

upheld  the  trial  court  findings  regarding  the  various  

instances  when  PW3 represented  himself  as  the  landlord.  

Observing that there was no conveyance of title after  the  

execution  of  the  agreement  dated  20.05.2006,  the  High  

Court opined that the appellant could not be held to be the  

owner or landlord of the suit property on the basis of the  

exchange deed dated 23.04.1975.  The High Court observed  

that the definitions of the terms ‘tenant’ and ‘landlord’ were  

not related to ownership of the suit property. PW3 Ranjeet  

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Prasad was held to be the landlord of defendant Abdul Karim  

considering  the  agreements  dated  20.12.1968  and  

20.05.2006 and that Ranjeet Prasad had filed eviction suits  

as  a  landlord.  Once  landlord-tenant  relationship  existed  

between the PW3 Ranjeet Prasad and the defendant Abdul  

Karim, the same should have been determined only as per  

the provisions of  the Rent Control  Act.  Holding that  there  

was  no  need  to  give  a  finding  regarding  default  in  the  

payment of rent or bonafide requirement when there was no  

landlord-tenant relationship between the appellant and the  

defendant Abdul Karim, the High Court allowed the revision  

petition filed by the respondents-tenants and dismissed the  

suit for eviction filed by the appellant.

8.  Hence,  the  present  appeal  by  special  leave  by  the  

plaintiff.

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9.  While reversing the appellate court judgment, the High  

Court in paragraph nos. 11 and 13 of the impugned order  

held as under:-

“11. This revision petition arises out of a claim  of relief under Section 5 of the Assam Urban  Areas Rent  Control  Act,  1972.  Unlike general  law  governing  tenancy,  this  Act  confers  a  statutory status on tenant and on attainment  of  such  status  a  tenant  earns  protection  guaranteed  under  Section  5  of  this  Act.  No  tenant under this Act can be evicted without a  decree of Court. The landlord, therefore, is duty  bound  to  obtain  a  decree  from  court  by  establishing  the  conditions  precedent  laid  down under Section 5 referred to above. The  foundation  of  such  a  suit  is  relationship  of  landlord and tenant. The fact that there exists  a relationship of landlord and tenant between  the parties is the starting point for conferring  jurisdiction on a court to entertain and decide  the  dispute.  Such  fact  constituting  landlord- tenant relationship, therefore, is a jurisdictional  fact  and  not  a  mere  fact  and  as  such  High  Court,  in  exercise  of  revisional  jurisdiction  under  Section  115  of  the  Code  of  Civil  Procedure,  is  duty  bound  to  examine  as  to  whether  such  a  finding  arrived  at  by  the  learned Court or Courts below is tenable and/or  based on materials on record.

13.  These aspects are no doubt relevant for  the purpose of adjudicating a jurisdictional fact  as  to  landlord  tenant  relationship  in  a  

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proceeding  under  Section  5  of  the  Assam  Urban  Areas  Rent  Control  Act,  1972.  Apparently,  these  relevant  aspects  were  not  considered by the learned appellate court. The  finding  of  the  learned  appellate  court,  therefore,  on  issue  No.4  is  vitiated  by  non- consideration  of  relevant  aspect  and  non- consideration of exhibits Ka, Kha and Gha. The  finding of the first appellate court that there is  a landlord and tenant relationship between the  plaintiff and the defendant is liable to be held  as perverse, inasmuch as, plaintiff has failed to  meet the challenges thrown by the defendant  by bringing on record exhibits Ka, Kha and Gha  and  claiming  that  plaintiff  never  derived  the  title  from  Ranjeet  Prasad  subsequent  to  creation  of  tenancy  in  2006.  The  decision  of  appellate  court,  on  issue  No.4,  therefore,  is  liable to be interfered with. Once it is held that  there  is  no  landlord  and  tenant  relationship  between the plaintiff and the defendant, there  is  no  question  of  giving  any decision  on  the  issue  of  default  or  bona-fide  requirement.  Consequently,  findings  of  the  first  appellate  court on these 2 (two) issues are also set aside.  In  the result,  civil  revision petition is  allowed  and  the  impugned  appellate  judgment  is  set  aside  restoring  the  judgment  of  the  learned  Trial court.”

10. We  have  heard  learned  counsel  appearing  for  the  

parties.  Before coming to the conclusion, we would like to  

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refer  to  the  relevant  provisions  of  the  Assam Urban Area  

Rent Control Act, 1972.

11. The expression “landlord” has been defined in Section  

2(c) of the Rent Act which reads as under:-

“(c)  Landlord”  means  any person who is,  for  the time being receiving, or entitled to receive  rent  in  respect  of  any house whether  on his  own account, or on account, or on behalf, or for  the benefit of any other person, or as a trustee,  guardian, or receiver for any other person; and  includes, in respect of his subtenant, a tenant  who has sub-let any house and includes every  person not  being a  tenant  who from time to  time derives title under a landlord.”

12. Section 5 of the Act creates a bar against the passing or  

execution of a decree or order for ejection.  Section 5 reads  

as under:-

“5. (1) No order or decree for the recovery of  possession  of  any  house  shall  be  made  or  executed by any Court so long as the tenant  pays rent to the full extent allowable under this  Act  and  performs  the  conditions  of  the  tenancy:

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Provided that nothing in this sub-section shall  apply in  a suit  or  proceedings for  eviction  of  the tenant from the house:—

(a)  Where  the  tenant  has  done  anything  contrary to the provisions of clause (m), clause  (o) or clause (p) of Section 108 of the Transfer  of  Property  Act,  1882  or  to  the  spirit  of  the  aforesaid  clause in  areas where  the said  Act  does not apply, or

(b)  Where  the  tenant  has  been  guilty  of  conduct which is a nuisance of an annoyance  to  the  occupiers  of  the  adjoining  or  neighbouring houses, or

(c)  Where  the  house is  bonafide  required  by  the landlord either for  purposes of  repairs  or  rebuilding, or for his own occupation or for the  occupation of any person for whose benefit the  house  is  held,  or  whether  the  landlord  can  show any other cause which may be deemed  satisfactory by the Court, or

(d) Where the tenant sublets the house or any  part thereof or otherwise transfers his interest  in  the  house  or  any  part  thereof  without  permission in writing from the landlord, or

(e)  Where  the  tenant  has  not  paid  the  rent  lawfully due from him in respect of the house  within a fortnight of its falling due, or

(f) Where the tenant has built, acquired or  been allotted a suitable residence.”

13. From the  definition  of  ‘landlord’,  it  is  clear  that  the  

definition is couched in a very wide language, according to  

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which not only the owner but also any person receiving rent,  

whether on his own account or on behalf of or for the benefit  

of any other person or as a trustee, guardian, or receiver for  

any other person, is also the landlord.  

14. However, for the purpose of eviction of a tenant on the  

ground  of  personal  need  or  reasonable  requirement,  one  

must show that he is the owner of the building.

15. A  similar  question  came  for  consideration  before  a  

three  Judges  Bench  of  this  Court  in  the  case  of  M.M.  

Quasim vs. Manohar Lal Sharma & Ors.,  AIR 1981 SC  

113. The matter related to the Bihar Building (Lease, Rent  

and Eviction) Control Act, 1947. In the Bihar Rent Act, the  

definition of expression ‘landlord’ is similar as that of Assam  

Rent  Act.  Further  the  ground  for  eviction  of  personal  

necessity  is  also  similar  to  that  of  the  Assam  Act.  

Considering  these provisions, this Court held:-

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“14…Therefore, while taking advantage of the  enabling provision, enacted in Section 11(1)(c),  the person claiming possession on the ground  of  his  reasonable  requirement  of  the  leased  building must show that he is a landlord in the  sense that he is owner of the building and has  a right to occupy the same in his own right. A  mere rent collector, though may be included in  the expression “landlord” in its wide amplitude,  cannot  be  treated  as  a  landlord  for  the  purposes  of  Section  11(1)(c).  This  becomes  manifestly  clear  from  the  explanation  appended  to  the  clause.  By  restricting  the  meaning  of  expression  “landlord”  for  the  purpose  of  Section  11(1)(c),  the  legislature  manifested its  intention  namely  that  landlord  alone can seek eviction on the ground of his  personal  requirement if  he is  one who has a  right  against  the  whole  world  to  occupy  the  building himself and exclude any one holding a  title lesser than his own. Such landlord who is  an  owner  and  who  would  have  a  right  to  occupy the building in his own right, can seek  possession for his own use. The latter part of  the  section  envisages  a  situation  where  the  landlord is holding the building for the benefit  of some other person but in that case landlord  can seek to evict  tenant not for his  personal  use but  for  the personal  requirement of  that  person for whose benefit he holds the building.  The second clause contemplates a situation of  trustees and cesti que trust but when the case  is  governed by the first  part  of  clause (c)  of  sub-section  (1)  of  Section  11,  the  person  claiming  possession  for  personal  requirement  must be such a landlord who wants possession  for  his  own occupation  and  this  would  imply  that he must be a person who has a right to   remain in occupation against the whole world  and  not  someone  who  has  no  subsisting  interest in the property and is  merely  a rent  collector  such  as  an  agent,  executor,  administrator or a receiver of the property. For  

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the purposes of Section 11(1)(c) the expression  ‘landlord’ could, therefore, mean a person who  is the owner of the building and who has a right  to remain in occupation and actual possession  of  the  building  to  the  exclusion  of  everyone  else. It is such a person who can seek to evict  the  tenant  on  the  ground  that  he  requires  possession  in  good  faith  for  his  own  occupation. A rent collector or an agent is not  entitled to occupy the house in his own right.  Even  if  such  a  person  be  a  lessor  and,  therefore,  a  landlord  within  the  expanded  inclusive definition of the expression landlord,  nonetheless he cannot seek to evict the tenant  on  the  ground  that  he  wants  to  personally  occupy the house. He cannot claim such a right  against  the  real  owner  and  as  a  necessary  corollary he cannot seek to evict the tenant on  the  ground  that  he  wants  possession  of  the  premises for his own occupation. That can be  the only reasonable interpretation one can put  on the ingredients of clause (c) of Section 11(1)  which reads: “Where the building is reasonably  and in good faith required by the landlord for  his  own  occupation  ...”  Assuming  that  the  expression  “landlord”  has  to  be  understood  with the same connotation as is spelt out by  the definition clause, even a rent collector or a  receiver of the property appointed by the court  in  bankruptcy  proceedings  would  be  able  to  evict  the  tenant  alleging  that  he  wants  the  building for his own occupation, a right which  he  could  not  have  claimed  against  the  real  owner. Therefore, the explanation to clause (c)  which  cuts  down  the  wide  amplitude  of  the  expression  “landlord”  would  unmistakably  show that for the purposes of clause (c) such  landlord  who in the sense in which the word  ‘owner’ is understood can claim as of right to  the  exclusion  of  everyone,  to  occupy  the  house, would be entitled to evict the tenant for  his own occupation.”

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16. The High Court appears to have taken a very narrow  

meaning and interpretation of the expression ‘landlord’  as  

defined in the Assam Rent Act.  The finding recorded on that  

score  to  the  effect  that  there  exists  no  relationship  of  

landlord  and  tenant  is  not  in  accordance  with  the  true  

meaning of the term ‘landlord’.  This aspect of the law has  

not been considered by the High Court.  On the contrary, the  

High Court proceeded on the basis that the relationship of  

‘landlord and tenant’ has not been established although the  

ownership of the appellant by virtue of the deed of exchange  

has  neither  been  denied  nor  been  disputed  by  the  

respondent-tenant.  Even assuming for the sake of argument  

that  the  elder  brother  of  the  appellant  was  acting  as  a  

landlord by receiving rent, it will not debar the original owner  

from  filing  a  suit  for  eviction  not  only  on  the  ground  of  

personal necessity but also on the ground of default when it  

has  come  in  evidence  that  the  respondent  on  many  

occasions went to the appellant to pay rent but the latter  

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refused  to  receive  the  rent.   Moreover,  admittedly,  the  

respondent-tenant was paying electricity and other charges  

of the tenanted premises to the appellant.

17. On the question of tenancy, both the trial court and the  

High Court have not considered the provision of Section 109  

of the Transfer of Property Act.

“109.  Rights of lessor’s transferee.—If the lessor  transfers the property leased, or any part thereof, or  any part of his 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 or  part transferred so long as he is the owner of it; but  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:  

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  

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part so 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.

18. From perusal  of  the  aforesaid  Section,  it  is  manifest  

that  after  the  transfer  of  lessor’s  right  in  favour  of  the  

transferee,  the  latter  gets  all  rights  and  liabilities  of  the  

lessor in respect of subsisting tenancy.  The Section does not  

insist  that  transfer  will  take  effect  only  when  the  tenant  

attorns.  It is well settled that a transferee of the landlord’s  

rights steps into the shoes of the landlord with all the rights  

and  liabilities  of  the  transferor  landlord  in  respect  of  the  

subsisting tenancy.  The section does not require that the  

transfer of the right of the landlord can take effect only if the  

tenant  attorns  to  him.   Attornment  by  the  tenant  is  not  

necessary to confer validity of the transfer of the landlord’s  

rights.   Since attornment by the tenant is  not  required,  a  

notice under Section 106 in terms of the old terms of lease  

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by the transferor landlord would be proper and so also the  

suit for ejectment.

19. As  noticed  above,  the  respondent-tenant  on  many  

occasions approached the appellant, the transferee, owner  

and the landlord to receive the rent.   Further, admittedly,  

the electricity charges of the tenanted premises were paid  

by the tenant to the present appellant. Non-consideration of  

subsequent  tenancy agreement  executed by the erstwhile  

owner namely the brother of the appellant will not come in  

the  way  of  the  present  appellant  to  seek  eviction  of  the  

tenant on the ground of personal necessity as also on the  

ground of non-payment of rent.  The approach of the High  

Court  reversing  the  appellate  court’s  finding  cannot  be  

sustained in law.

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20. For the aforesaid reasons,  this appeal  is  allowed and  

the impugned judgment and order passed by the High Court  

is set aside.  However, there shall be no order as to costs.

…………………………….J. (M.Y. Eqbal)

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…………………………….J. (S.A. Bobde)

New Delhi April 08, 2015

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