Nalakath
Sainuddin Vs. Koorikadan Sulaiman [2002] Insc 280 (8 July 2002)
R.C.
Lahoti & B.N. Agrawal. R.C. Lahoti, J.
Appeal (civil) 3649 of 2002 Appeal (civil) 3650 of 2002
Appeal (civil) 3651 of 2002
Leave
to appeal granted in all the petitions.
The
suit property is a building situated within the jurisdiction of Rent Control
Court of Kozhikode. The plan of the property shows that it is a shop with
openings on two sides. Though the property is one, however, it has been
numbered by the local authority by assigning two Door Nos., i.e. Door No.6/481
and 6/482. The small corner of the shop situated between the openings on the
two sides has been assigned No. 6/482 while the remaining entire shop is
assigned Door No. 6/481. The property was owned by Kunhilakshmi alias Leelamma
and others and held on tenancy by Nalakath Sainuddin, the appellant, on a
monthly rent of Rs.65/-, the tenancy being a single tenancy for Doors Nos.
6/481 and 6/482. The tenancy had commenced in the year 1969. Sometime in the
year 1972, Door No.6/482 was sublet by the appellant to the respondent Koorikadan
Sulaiman on a monthly rent of Rs.100/-. On 12.9.1988, the respondent purchased
the entire property (i.e. including both the Doors) from the then owners of the
property. The respondent then served a notice on the appellant calling upon him
to surrender possession over the property in his possession. The notice was
followed by an application filed by the respondent in the Rent Control Court
for an order directing the tenant to put the landlord in possession of the
building on three grounds, viz.,
(i) that
the appellant was in arrears of rent,
(ii) that
the building was bona fide needed for his own occupation, and
(iii)
that the respondent occupying only a part of the building required additional
accommodation in occupation of the appellant for the landlord's personal use,
the grounds as contemplated respectively by Sections 11(2)(b), 11(3) and 11(8)
of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter, 'the
Act', for short).
The Rent Control Court negated the availability of grounds
under sub-Sections (3) and (8) of Section 11 of the Act but ordered the
eviction of the appellant on the ground of non-payment of arrears of rent under
Section 11(2)(b). Both the parties preferred their respective appeals before
the Rent Control Appellate Authority. The appeal preferred by the tenant was
dismissed. The appeal preferred by the landlord was allowed in part. The
eviction of the appellant was ordered under Section 11(8) of the Act in
addition to Section 11(2)(b), as directed by the Rent Control Court. The dismissal of claim for eviction under Section
11(3) by the Rent
Control Court was
upheld by the Appellate Authority. Feeling aggrieved by the decision of the
Appellate Authority, the tenant preferred a revision under Section 20 of the
Act before the High Court. The landlord did not prefer any revision against the
order of the Appellate Authority. In the revision preferred by the tenant, the
High Court has, by its impugned judgment, upheld the order of eviction under
Section 11(2)(b). As to availability of ground of eviction under Section 11(8),
the High Court has held that the same was not available to the landlord.
However, in the opinion of the High Court, the order for eviction could be
sustained under Section 11(3) of the Act. Accordingly, the High Court modified
the judgment of the Appellate Authority by holding that in addition to the
ground under Section 11(2)(b), the order for eviction would be sustainable
under Section 11(3) of the Act. The tenant has filed two petitions seeking
leave to file appeals by special leave. The landlord has also filed two
petitions seeking special leave to appeal against the judgment of the High
Court and praying for eviction of the tenant under Section 11(8) of the Act
also. However, in the narration of facts herein we have referred to the status
of the parties as they are arrayed in appeals arising out of SLP(C) Nos.1599-
1600/2001 filed by tenant.
In so
far as the order for eviction under Section 11(2)(b) of the Act is concerned,
the learned counsel for the tenant submitted that the tenant has, as
contemplated by Section 11(2)(c) of the Act, deposited the amount of arrears of
rent with interest and cost of proceedings within the time appointed thereunder,
and, therefore, the order for eviction on that ground is liable to be vacated
and that being the position of law the tenant does not wish to contest the
order for eviction on that ground as in view of the subsequent act of the
tenant the order has ceased to be effective and the dispute in appeal, to that
extent, is rendered academic merely. The validity of the order of the High
Court, in the light of the cross appeals, remains to be tested by finding out
whether the order of eviction can be sustained under Section 11(3) or 11(8) of
the Act.
Shri
T.L.V. Iyer, learned senior counsel for the tenant-appellant has submitted that
the Appellate Authority had negated availability of ground under Section 11(3)
of the Act and in view of the landlord having not preferred any revision to the
High Court under Section 20 of the Act disputing the order of the Appellate
Authority to the extent to which the claim under Section 11(3) of the Act was
disallowed, the same had achieved a finality and the High Court did not have
jurisdiction to pass an order for eviction under Section 11(3) of the Act once
the availability of ground under Section 11(8) was also negated by the High
Court. The decree under Section 11(3) of the Act passed by the High Court
deserves to be set aside for this short reason.
Shri P.Krishnamurthy,
the learned senior counsel for the landlord has disputed the correctness of the
submission made by Shri T.L.V. Iyer and urged that a landlord in his capacity
as respondent, in a revision before the High Court preferred by the tenant
under Section 20 of the Act, can support the decree by urging availability of a
ground for eviction though decided against him by the order impugned before the
High Court. He also submitted that even otherwise, the High Court was not
justified in holding non-availability of ground under Section 11(8) of the Act
to the landlord and the High Court ought to have sustained the decree for
eviction under Section 11(8) itself for which purpose the landlord has filed
appeal by special leave before this Court. In his reply Shri T.L.V. Iyer, the
learned senior counsel for the tenant submitted that ground under Section 11(8)
of the Act was not available to the landlord as the part of the building which
he was occupying was in his capacity as sub-tenant and not as a landlord. He
submitted that in as much as the landlord was holding shop No.6/482 as
sub-tenant while shop No. 6/481 and 6/482 were both held by the tenant under a
single tenancy, in spite of purchase by the landlord from the previous owner
the tenant remains a tenant in shop No. 6/481 and sub-tenancy of the landlord
over shop No. 6/482 did not come to an end by applying the doctrine of merger.
Shri
P. Krishnamurthy, Senior Advocate, appearing for the landlord, has disputed the
correctness of the submissions made by Shri Iyer.
In
these cross-appeals two questions arise for decision:-
(i)
when an order for eviction is passed on one of the several grounds urged by the
landlord, can the landlord-respondent in a revision filed by tenant under
Section 20 of the Act, support the order for eviction by disputing correctness
of finding, adverse to him, on another ground for eviction and urging before
the revisional court to uphold the availability of such ground so as to sustain
the order for eviction?
(ii)
whether on the facts and in the circumstances of the case, the High Court was
justified in holding non-availability of ground for eviction under Section
11(8) of the Act? The relevant provisions of the Act are sub-Sections (3) and
(8) of Section 11 and Section 20. The same are reproduced hereunder:- "11.
(3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in
possession of the building if he bona fide needs the building for his own
occupation or for the occupation by any member of his family dependent on him.
Provided
that the Rent Control Court shall not give any such direction if the landlord
has another building of his own in his possession in the same city, town or
village except where the Rent Control Court is satisfied that for special
reasons, in any particular case it will be just and proper to do so:
Provided
further that the Rent Control Court shall not give any direction to a tenant to
put the landlord in possession, if such tenant is depending for his livelihood
mainly on the income derived from any trade or business carried on in such
building and there is no other suitable building available in the locality for
such person to carry on such trade or business:
xxx xxx
xxx
11.
(8) A landlord who is occupying only a part of a building, may apply to the
Rent Control Court for an order directing any tenant occupying the whole or any
portion of the remaining part of the building to put the landlord in possession
thereof, if he requires additional accommodation for his personal use.
20.
(1) In cases where the appellate authority empowered under section 18 is a
Subordinate judge, the District Court, and in other cases the High Court, may,
at any time, on the application of any aggrieved party, call for and examine
the records relating to any order passed or proceedings taken under this Act by
such authority for the purpose of satisfying itself as to the legality,
regularity or propriety of such order or proceedings, and may pass such order
in reference thereto as it thinks fit.
(2) The
costs of and incident to all proceedings before the High Court or District
Court under sub-section (1) shall be in its discretion." As to the first
question, Shri Iyer, the learned senior counsel for the tenant submitted that
the revisional jurisdiction can be invoked by an aggrieved party by putting in
issue 'any order' and the jurisdiction conferred on the revisional Court is to
test the legality, regularity or propriety of 'such order' and then to pass a
just order 'in reference thereto'. Emphasizing the words 'such order' and 'in
reference thereto', Shri Iyer submitted that the revisional jurisdiction is
invoked by the person aggrieved by such order putting in issue that part of the
order with which he feels aggrieved and, therefore, the revisional Court can
exercise jurisdiction by making a just order touching only that part of the
impugned order which has been put in issue by the revision-petitioner and that
is determinative of the scope of hearing in revision as also of the subject
matter with reference to which the revisional jurisdiction can be exercised. He
further submitted that it was open for the landlord-respondent to file a
revision against that part of the order with which he felt aggrieved and in the
absence of the respondent having not done so the High Court could not have, in
a revision preferred by the tenant-appellant, interfered with and reversed that
part of the order which was adverse to the respondent.
We do
not find ourselves persuaded to agree with the learned senior counsel for the
tenant-appellant. Bapat, 1969 (2) SCC 74, it has been held that revisional
jurisdiction partakes the appellate jurisdiction of a superior Court. The right
of appeal is one of entering a superior Court and invoking its aid and
interposition to redress the error of the Court below. Two things which are
required to constitute appellate jurisdiction are : the existence of the
relation of superior and inferior Court and the power on the part of the former
to review decisions of the latter. When the aid of the High Court is invoked on
the revisional side it is done because it is a superior Court and it can
interfere for the purpose of rectifying the error of the Court below. Subject
to limitations placed on the exercise of revisional jurisdiction, it remains a
part of the general appellate jurisdiction of a superior Court in a wider and
larger sense.
409,
this Court held that when revisional jurisdiction is exercised in relation to a
'case' it can also be exercised in relation to a part of a case. Hidayatullah,
J. (as His Lordship then was), in his separate concurring opinion, compared the
revisional jurisdiction of the High Court with the jurisdiction to issue a writ
of Certiorari and held that the revisional jurisdiction is clearly in the
nature of a proceeding on a writ of Certiorari though His Lordship also pointed
out the essential differences between the two powers. However, His Lordship
clearly opined that the revisional jurisdiction is conferred to keep the
subordinate Courts within the bounds of their jurisdiction and once a flaw of
jurisdiction is found the High Court exercising revisional jurisdiction need
not quash and remit as is the practice in English Law under the writ of
Certiorari but can itself pass such order as it thinks fit.
(1984)
Suppl. SCC 128, it was held that once a jurisdiction is conferred to examine
the propriety or impropriety of the order, the jurisdiction is wide. One
meaning assigned to the expression 'propriety' is 'justice'. A jurisdiction to
examine the propriety of the order or decision carries with it the same
jurisdiction as the original authority to come to a different conclusion on the
said set of facts. If any other view is taken the expression 'propriety' would
lose its significance.
Tax, Central Bombay, (1967) 1 SCR 463, Section 33(4) of
the Income Tax Act, 1922 came up for the consideration of this Court.
The
provision conferred the Appellate Tribunal with power to 'pass such orders
thereon as it thinks fit'. It was urged that the word 'thereon' restricts the
jurisdiction of the Tribunal to the subject matter of the appeal. This Court
held that the Tribunal was conferred with power to pass such orders as could be
passed by the Appellate Assistant Commissioner whose order was impugned before
the Tribunal. It was further held that in an appeal preferred by the assessee
it was certainly open to the Department to support the finding of the Appellate
Assistant Commissioner on any of the grounds decided against it.
(1974)
2 SCC 393 __ 'no appeal can lie against a mere finding' and, if filed, shall be
liable to be dismissed as not maintainable. In Seetaram Bench consisting of M. Hidayatullah,
CJ and P.K. Tare, J., (as their Lordships were then), considered Clause 21 of
the C.P. and Berar Letting of Houses and Rent Control Order, 1949 which
provides for an appeal being preferred by 'any person aggrieved by an order' of
the Controller to the Deputy Commissioner who shall decide the appeal.
Eviction
was sought for on three grounds but was allowed by the Controller only on one
ground. In an appeal preferred by the tenant the landlord was not permitted by
the Deputy Commissioner to establish that the other two grounds on which
permission was asked for were wrongly decided. The Deputy Commissioner formed
an opinion that the order of Controller could not be allowed to be supported by
the landlord-respondent before him on any ground which had been decided against
him by the Controller unless an appeal was filed by the landlord-respondent.
The Division Bench held that 'a person aggrieved' must be a man against whom a
decision has been pronounced which has wrongfully refused him something which
he had a right to demand. In spite of a ground for an order having been decided
against the landlord, if the operative part of the order is in his favour, the
landlord though a 'person aggrieved' is not a 'person aggrieved by an order of
the Controller'. The landlord could have felt satisfied therewith and there is
no reason why he should have appealed. Even if a person has a grievance against
the finding he cannot come by way of appeal unless he challenges the order
itself and wants to get it interfered with. Such an interpretation of the
provision is warranted otherwise even if the order is in favour of a party he
would be required to file an appeal against a finding. The Division Bench held
that, in an appeal, the party who has an order in its favour is entitled to
show that the order is justified on some ground which was decided against it in
the Court below and this position of law is supportable on general principles
without having recourse to Order 41 Rule 22 of the Code of Civil Procedure.
Krishnaswami
Ayyangar, J. in his opinion, in Gaddem Chinna 1943 Madras 698, which is a Full
Bench decision, held, interpreting Order 41 Rule 22 of the CPC, that a party
who has succeeded in the result of a decision in spite of one or more of
several grounds urged by him having been negated, he cannot and need not appeal
as regards the latter grounds however erroneous the decision because there is
no right of appeal to a party who has succeeded. The distinction lies in
supporting or sustaining the decree in one's favour and in obtaining an
alteration which would give him a further advantage. The latter can be secured
only by an appeal or cross objection.
A
Single Bench decision of Madras High Court in K. directly in point dealing with
pari materia provision contained in Section 25 of the Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960. It was held that where an order for eviction
is based on one of the several grounds, in an appeal preferred by the tenant,
the ultimate decision in favour of the landlord can be supported by the
landlord without filing an appeal by disputing the correctness of findings on a
ground decided against him and submitting that the order of eviction should
have been rested on that ground as well.
What
is true of the appellate jurisdiction is also true of the revisional
jurisdiction under Section 25. The Division Bench decision of Madhya Pradesh
High Court in Seetaram & ors.'s case (supra) was followed.
We
agree with the view taken by the High Courts of Madhya Pradesh and Madras. We are of the opinion that __
(i)
There is no reason to read and interpret Section 20 of the Kerala Buildings
(Lease and Rent Control) Act, 1965 narrowly and limit the scope of revisional
jurisdiction conferred on the High Court thereby;
(ii)
Once a revision petition is entertained by the High Court, whichever be the
party invoking the revisional jurisdiction, the High Court acquires
jurisdiction to call for and examine the records of the authority subordinate
to it. The records relating to 'any order' and/or any proceedings, are
available to be examined by the High Court for the purpose of satisfying itself
as to the
(a) legality,
(b) regularity,
or
(c) propriety
of the impugned order, including any part of the order, or proceedings. The
only limitation on the scope of High Court's jurisdiction is that the order or
proceedings sought to be scrutinized must be of the subordinate authority. Any
illegality, irregularity or impropriety coming to its notice is capable of
being corrected by the High Court by passing such appropriate order or
direction as the law requires and justice demands;
(iii)
'Any aggrieved party', the expression employed in Section 20(1), means a person
feeling aggrieved by the ultimate decision, that is, the operative part of the
order. A party to the proceedings, who has succeeded in securing the relief
prayed for, is not a party aggrieved though the order contains a finding or two
adverse to him. The respondent can support the order and pray for the ultimate
decision being sustained, without filing a revision of his own, and for
achieving such end he may seek reversal of any findings recorded against him.
However, if the non-petitioning party feels entitled to a more beneficial or
larger order in his favour but was allowed a lesser or smaller relief then to
the extent of claiming the more beneficial or larger relief he should have
filed a revision petition of his own as he was 'an aggrieved party' to that
extent.
There
is, therefore, no doubt in the present case that in a revision preferred under
Section 20 of the Act by the tenant laying challenge to the propriety of the
decision of the Appellate Authority under Section 11(8) of the Act, the
landlord could have urged that the order for eviction could be sustained under
Section 11(3) of the Act also. The High Court has not erred in permitting the
landlord to urge such a plea in the revision filed by the tenant though the
landlord did not file any revision of his own. A landlord who has succeeded in
securing an order of eviction on one of the several grounds urged by him cannot
be said to be a person aggrieved by such order. He cannot file a revision
rather he can feel satisfied with the order. The person aggrieved is the tenant
and in a revision preferred by the tenant it is only just and equitable that
the landlord should be permitted to support the order of eviction by disputing
correctness of the finding recorded in the impugned order whereby the
availability of additional ground for eviction was negatived. Such a right has
to be necessarily spelled out in favour of the landlord who has succeeded from
the court below else there would be grave injustice.
The
next question is as to the availability of ground for eviction under Section
11(8) of the Act for the landlord. Section 11(8) of the Act provides for a
landlord occupying (as landlord) only a part of a building seeking ejectment of
the tenant occupying the remaining part of the building subject to his proving
his requirement of additional accommodation for his personal use. Obviously, if
the respondent is in occupation of part of the building as sub-tenant he cannot
have recourse to Section 11(8) of the Act. However, if his occupation though
having originated as sub-tenant stands enlarged into that of an owner, and
hence a landlord, by virtue of his purchase dated 12.9.1988 he would be
entitled to eviction of the tenant under Section 11(8) of the Act. Answer would
depend on the question whether the purchase of interest of the owner in the
part of the premises held by the respondent as sub-tenant results in merger so
as to wipe out the sub-tenancy and convert the nature of occupation of the
respondent into that of an owner. Section 111 (relevant part thereof) and
Section 109 of the Transfer of Property Act are relevant for the purpose and
are reproduced hereunder:- "111. Determination of lease.___A lease of
immovable property determines___ xxx xxx xxx xxx (d) in case the interests of
the lessee and the lessor in the whole of the property become vested at the
same time in one person in the same right;
xxx xxx
xxx xxx 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 shall not be liable to pay such rent over
again to the transferee.
The lessor,
the transferee and the lessee may determine what proportion of the premium or
rent reserved by the lease is payable in respect of the part 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." Merger is largely a question of intention, dependent on circumstances,
and courts will presume against it when it operates to disadvantage of a party.
"Merger" generally is defined as the absorption of a thing of less
importance by a greater whereby the lesser ceases to exist but the greater is
not increased, and rights are said to be merged when the same person who is
bound to pay is also entitled to receive. Pacific States Savings & Loan Co.
v. Strobeck, 33 P.2d 1063, 1066, 139 Cal.App.427. [See, Words and Phrases,
Permanent Edition, Vol.27, at page 124] A merger, at law, is defined to be
where a greater estate and a less coincide and meet in one and the same person,
in one and the same right, without any intermediate estate. The less estate is
immediately annihilated, or, in the law phrase, is said to be merged___that is,
sunk or drowned___in the greater.
Thus,
if there be a tenant for years, and the reversion in fee simple descends to or
is purchased by him, the term of years is merged in the inheritance. The rule
in equity is the same as at law, with this modification: that at law it is
invariable and inflexible; in equity it is controlled by the expressed or
implied intention of the party in whom the interest or estates unite. (See,
Words and Phrases, ibid, p.138).
Merger
is founded on the principle that two estates one larger and one smaller cannot
and need not co-exist, if the smaller estate can in equity, and must in law,
sink or merge into the larger estate.
The
Transfer of Property Act, 1882 embodies mostly the principles of justice,
equity and good conscience. In view of codification of such principles in India, the principles of equity shall
stand modified to the extent of provision otherwise in the Transfer of Property
Act. The learned senior counsel for the tenant-appellant submitted that a
merger would not result because out of the property purchased by the
respondent, the then sub-tenant, part is held by the appellant-tenant as tenant
and part is held by the respondent as sub- tenant and in view of the different
nature of the two parts of the estate there is no coalescence. Secondly, the
estate existing in favour of the appellant-tenant is an intervening estate
which would prevent the union and fusion of estates held by the then owners and
the respondent. The submission, though attractive, does not hold water on a
deeper probe. As we have already stated, the doctrine of merger stands
statutorily incorporated in Clause (d) of Section 111 of the Act and has to be
read along with Section 109 of the Transfer of Property Act and not in
isolation.
The
common law rule that a landlord cannot split the unity and integrity of the
tenancy so as to result in possession over a part of the demised premises being
recovered from the tenant does not have applicability in India because of
Section 109 of the T.P. Act which provides a statutory exception to the rule
and enables an assignee of a part of the reversion to exercise all the rights
of the landlord in respect of the portion respecting which the reversion is so
assigned subject, of course, to the other covenant running with the land. This
position of law stands settled with the decision of this Court in Mohar Singh
M.N. Venkatachaliah, J. (as His Lordship then was) speaking for the Bench
consisting of R.S. Pathak, Chief Justice and himself, held that Section 109 of
T.P. Act does away with the need for a consensual attornment. The attornment is
brought about by operation of law.
The
severance of the reversion and assignment of the part so severed do not need
the consent of the tenant.
Division
Bench of the High Court of Madhya Pradesh consisting of Chief Justice P.K. Tare
and Justice Shiv Dayal (later, Chief Justice), took the view on an illuminating
survey of judicial opinion that a transferee of a part of leased property
acquires "all the rights" of the lessor in respect of that part as if
it alone had comprised the lease and a new relationship is created between the
transferee and the lessee.
The
section creates a statutory attornment substituting, but retaining the same
effect of, the contractual attornment. Title of the assignee is complete on
execution of the deed of assignment and is not postponed till the notice of the
assignment. The Division Bench repelled the submission that since the lessor
could not have terminated the tenancy of a part of the demised premises by a
notice to quit, he cannot transfer the premises in part and confer such a right
on the transferee.
The
Division Bench held that the right of ejectment is inherent in ownership.
Therefore, by virtue of Section 109 of T.P. Act such transferee is entitled to
evict the tenant from the part transferred to him not only when the lease had
been determined before the transfer but also if it is determined after the
transfer in any of the circumstances mentioned in Section 111. Thus he can
terminate by a quit notice the lease in respect of the property transferred to
him.
The
Division Bench decision came up for consideration by a 1980 MP 8. Chief Justice
G.P. Singh, speaking for the Full Bench, approved the statement of law in B.P. Pathak's
case and held that Section 109 of T.P. Act confers a right on the owner to
effect a severance of a lease by his unilateral act and tenancy over a part of
the property leased can be determined by the transferee.
It is,
thus, clear that in a lease governed by the provisions of the T.P. Act or the
principles emerging therefrom as applicable in India, the transfer of a part of
leased premises by the owner in favour of the sub-tenant, holding sub-lease
from the tenant, would result in merger.
It
will be a strange proposition to urge or to accept that although the respondent
has purchased the reversion in the entire estate consisting of Doors No.6/482
and 6/483 and the appellant has become the respondent's tenant as to both the
doors still the respondent continues to be a sub-tenant of appellant in respect
of Door No.6/482. The respondent cannot be an owner and sub-lessee both and at
the same time. The smaller estate of sub-tenancy shall sink or drown into the
larger estate of ownership as the two cannot co-exist. The sub-tenant, i.e. the
respondent, has not acquired only a share of the landlord owner's estate nor an
ownership in part confined to sub-tenancy premises; what he has acquired under
the deed dated 12.9.1988 is the full ownership in the entire premises. The
right of reversion vesting in the then owners, so far as the appellant is
concerned, stands fully and entirely vested in the respondent. There is nothing
to hold that the intention of the parties to the deed dated 12.9.1988 was not
to effect a merger and confer the estate of owner on the sub-tenant (the
respondent). Undoubtedly, on 12.9.1988, the appellant's estate did intervene
but that is of no consequence in view of Section 109 of the Transfer of
Property Act. The sale deed is not under challenge. There is nothing to prevent
the splitting up of tenancy and resulting in statutory attornment by the
tenant-appellant in favour of the sub- tenant-respondent on the factum of
transfer of full ownership, including reversion, under the deed dated 12.9.1988
being brought to his notice which would take effect from the date of the deed.
We are, therefore, of the opinion that on 12.9.1988 the sub-tenancy of the
respondent held under the appellant to the extent of sub-leased premises
terminated by merger and the respondent became the owner- landlord of the
entire premises consisting of two Doors. So far as the apportionment of rent is
concerned, that would depend on consensus between the owner and the respondent.
In the absence of consent or a dispute arising, the same would be determined by
a competent forum whether the Rent Controller or the Civil Court. The
applicability of Section 11(8) of the Act is squarely attracted and the
respondent could have availed the benefit thereof for evicting the appellant.
For
all the foregoing reasons we do not find the decree for eviction liable to be
interfere with. The appeals filed by the tenant are dismissed. The appeals
filed by the landlord are allowed. However, the appellant is granted four
months' time from today for vacating the suit premises subject to his clearing
all the arrears of rent and filing an usual undertaking, both within three
weeks from today, in the executing court. No order as to the costs.
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