P L D 1952 Lahore 36 (PLP)

S. A. RAHMAN, J.‑Sheikh Rahmat Din applied to the Rent Controller, Rawalpindi, for ejectment of Ghulam Sarwar from a shop, under section 13 of the West Punjab Urban Rent Restriction Act, 1949. He alleged that the defendant was his tenant liable to pay Rs. 12 per mensem, but had made default in payment and had allowed arrears to the extent of Rs. 203 to accumulate. Ghulam Sarwar denied that he was a tenant under the petitioner and the matter was put in issue. The learned Rent Controller found that he was a tenant under the petitioner liable to pay Rs. 12 per mensem as rent. As the rent had not been paid, he ordered his ejectment. The decision was affirmed on appeal by the learned District Judge, Rawalpindi. A revision petition has been preferred on behalf of Ghulam Sarwar in this Court. Mr. Muhammad Shafi, on behalf of the petitioner, has contended before me that, on the findings arrived at by the learned District judge, it should have been held that the relation ship of landlord and ‑tenant did not subsist between the peti tioner and the respondent. The learned District judge found that the original owner of the shop in question was one, Nihal Chand, who sold it to Feroze Din, a uterine brother of the respondent, by a regular sale‑deed, and subsequently, Feroz Din sold it to the respondent, by another sale deed. He further held it proved that Ghulam Sarwar petitioner was in occupation of the premises as a tenant under Feroze Din. The argument of Mr. Muhammad Shafi is that the fact that the petitioner was a tenant under the predecessor‑in‑title of the respondent, did not automatically make him a tenant under the respondent, unless the petitioner had attorned to the latter. In support of this proposition, learned counsel has cited Deo Nandan pershad v. Meghu Mahton (I L R 34 Cal. 57). In that case, the plaintiffs were transferees of certain lands and the defendants, who set themselves up as tenants in the land, had really been inducted into the property by the previous owners, on a date subsequent to the sale in favour of the plaintiffs. It was held that, in those circumstances, the defendants were no better than trespassers. The defendants further pleaded that they had been recognized as tenants by the plaintiffs subsequently. While. discussing this aspect of the case, Mookerjee J. remarked that a mere demand for rent was not sufficient to create the relationship of landlord and tenant, which was a matter of contract assented to by both parties. That observation must be understood as confined to the facts of that case. It was held by the learned judges in that case that, in fact, no demand for rent as such, had been made by the plaintiffs from the defen dants. The observation in question clearly was meant to refer to a case where occupation of the property by a person, was, in its inception, without any legal right. The authority, there fore, does not afford much assistance to the contention raised by Mr. Muhammad Shafi. Mr. Jamil Hussain Rizvi, on behalf of the respondent, has invoked the principle underlying section 109 of the Transfer of Property Act. The material part of this section provides that 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 right, 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. The principle of this section must be held applicable as a rule of justice, equity and good conscience, even if the Transfer of Property Act is not in force in this province as a whole. Surely, one of the rights of the previous owner, who was the landlord of the petitioner, was to demand rent from him as a tenant. This right must be held to have been transfer red to the respondent who became the owner by purchase from the previous landlord. I find that Sir D.F. Mulla has expressed a similar view in his commentary on this section at page 704 of his third edition of the Transfer of Property Act. He has remarked as follows :‑ " At common law, an assignment was‑not complete with out attornment by the lessee to the assignee, except when the assignment was by will. But the necessity for attornment was done away with by sections 9 and 10 of the Statute 45 Anne c. 3, (now repealed and re‑enacted in section 151 (1) of the Law of Property Act, 1925), and attornment is not necessary under the Transfer of Property Act. Before the Act there is only one reported case in which it was said that the lessor's assignee could not sue for rent, without the lessee attorning to him. A fresh attornment by the lessee to the lessor's assignee is not necessary under this Act. In practice, however, attornment is generally insisted upon as it is useful as an acknowledgment of the tenancy." The learned author further goes on to observe that the assignee takes the benefit of the lessee's covenants, e.g., to pay rent, etc. The reference to the single authority which took the contrary view, concerns Ram Lal Misser v. Chundrabullee (1870) 13 W. R. 228. A number of authorities, however, are cited by the learned author in support of the proposition that a fresh attornment by the lessee to the lessor's assignee is not under the Act Reference may be made inter alia to Daulat Ram v. Haveli Shah, 41 P L R 346 and Parhupati Nath Pal v. Durgodhan Ray Chaudhri I L R (1942) 2 Cal. 546. This interpretation is in accord with the decisions in Prabhu Ram v. Tek Chand (I L R 1 Lah. 241) and Bhola Nath v. Supper A I R 1923 Lah. 389 (1) In the first case, the plaintiff. who was a lessee from the owner of the premises, was held to be a transferee of a part of the lessor's interest in the property and to be possessed of all the rights of the lessor as to the property transferred, under section 109 of the Transfer of Property Act. The previous tenant had taken the objection that the notice of ejectment given by the transferee was invalid on the ground that the landlord had not informed the defendant that he had leased the house to the plaintiff. It was held by a learned Single judge that such a notice was not necessary. In the second case, a similar view was taken. It was held that section 105 (of the Transfer of Property Act provides no penalty for want of a notice of the transfer to the tenant except that the transferee may lose any rent which the lessee may have paid to the original lessor in ignorance of the transaction. Mr. Muhammad Shafi incited my attention to the fact that his client may be estopped from denying the title of his landlord who had introduced him into the premises but that no such estoppel could operate against him vis‑a‑vis the trans feree of his landlord. This may be conceded as correct but does not touch the point in issue in the present case. The tenant may dispute the title of the transferee, and, perhaps successfully, if he can show that the transfer was invalid due to some legal defect in the form of transfer or any other sub stantial ground. He is after all a stranger to the contract of sale. But this is far from saying that the transferee has no right to demand rent from the tenant of the transferor, even in the transfer is valid. Mr. Muhammad Shafi also pointed out that the word 'rent' was not defined in the West Punjab Urban Rent Restriction Act, 1949 and that the expressions 'landlord' and `tenant' were defined with reference to rent" only. According to the learned counsel, the transferee of the landlord was only entitled to compensation for use and occupation of the premises by the tenant of his transferor, unless the tenant chooses to attorn to the new owner. For this proposition, he has been unable to cite any direct authority in point. If this contention were allowed to prevail, it might lead to startling results. It would imply that as soon as a premises was transferred by one owner to another, the tenants of the first owner would be absolved from liability to pay rent to the new owner, unless they choose to attorn to him. It would this depend on the sweet will of the tenants whether the venture on which the transferee has embarked, is to be one of purchase of property and a reasonably safe investment or a mere purchase of expensive litigation. I am unable to assent to this proposition as sound. On principle, as well as on authority, there is no reason why the transferee of a landlord should not have the right to demand rent from the tenant of his own alienor. There is no force in this petition which is hereby dismissed with cots. A. H. Petition dismissed.