Shambhu Nath Saha Vs. Alfazuddin Ahmed & others, 41 DLR (AD) (1989) 27

Case No: Civil Aappeal No. 18 of 1987

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Md. Aftab Hossain,Mr. T. H. Khan,,

Citation: 41 DLR (AD) (1989) 27

Case Year: 1989

Appellant: Shambhu Nath Saha

Respondent: Alfazuddin Ahmed and others

Subject: Land Law,

Delivery Date: 1988-5-4

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
 
Shambhu Nath Saha
...........................Appellant
Vs.
Alfazuddin Ahmed & ors
..........................Respondents
 
Judgment
May 4, 1988.
 
The Transfer of Property Act, 1882
Section 109
Attornment
It is found that the question of attornment was not raised either in the pleading or in the proceeding at any time. As a matter of fact, the question of attornment does not arise at all because the defendant's case is that he was never a tenant under anybody including the plaintiff’s predecessors. He denied having paid any rent at all to the heirs of late Mr. Zakir Hussain. The plaintiffs having acquired good title from the heirs of late Mr. Zakir Hossain have stepped into the shoes of the landlord and in view of the findings made by the trial court that the defendant was a tenant under the plaintiff the defendant cannot evade ejectment as a tenant from the suit premises. Thus the appeal is dismissed…………(10&11)
 
Cases Referred to-
Amar Chandra Saha vs. Ajit Kumar Das, 33 DLR (AD) 37.
 
Lawyers Involved:
T. H. Khan, Senior Advocate, Lutfur Rahman Mondal, Advocate with him, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Appellant
Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record— For the Respondents.
 
C. A. No. 18 of 1987
 
JUDGMENT
A.T.M. Afzal, J.
 
The defendant in a suit for ejectment of monthly tenant is the appellant in this appeal by leave.
 
2. The suit being S.S.C. Suit No. 58 of 1979 I was decreed by the S.C.C. Judge (Sub-Judge, 3rd Court) Dhaka and on revision by the appellant a Single Bench of the High Court Division, Dhaka confirmed the said decree by judgement and order dated 17 March 1987 in Civil Revision No. 568 of 1985.
 
3. At the time of granting leave several question were raised on behalf of the appellant but at the 1 hearing of the appeal Mr.T.H. Khan, learned counsel for the appellant, confined his submission to 1 only one point i.e. whether the trial court and the High Court Division were correct in holding that there existed relationship of landlord and tenant between the plaintiffs and the defendant.
 
4. Plaintiffs case, briefly, is that the defendant has been occupying the suit premises as a tenant un­der one Begum Zohora Hossain at a rental of Tk. 150/- per month. The said Begum and her co-sharers Zahid Hussain and others transferred the suit holding along with other holdings, of the plaintiffs by registered sale deeds dated 28.2.1978 and thus the defendant be­came a tenant under the plaintiffs by operation of law. He did not pay any rent since 1968 and thus was a de­faulter. The plaintiff required the suit premises for re­building purposes and therefore wanted the defendant to vacate the same. On his failure to do so a notice under Section 106 of the Transfer of Property Act was served upon the defendant but even then he did not va­cate. Hence the suit.
 
5. The defendant denied the plaintiffs' case in­cluding their title and suited further that he was tenant neither under Begum Zohora Hossain nor under the plaintiffs. His case is that the suit holding originally belonged to one Raghu Nath Das and the defendant's great grand-father was permitted 1.0 use and occupies the suit premises since long before 1947. After indepen­dence of the country in 1947 one Abdul Kader Sarder demanded rent from the defendant upon occupying the entire holding and the defendant in order to avoid trou­ble paid him money in lump sum. After death of Ab­dul Kader Sarder in 1956 nobody claimed ownership of the suit holding. Thereafter somebody demanded rent as representative of the heirs of late Mr. Zakir Hossain, Ex-Governor of the then East Pakistan on the plea that they exchanged their property in India with the owner of the suit holding by exchange deed in 1949. Defendant's further case is that since they failed to show any valid document the defendant did not admit them as landlord nor paid any rent.
 
6. The S.C.C. Judge upon a consideration of both oral and documentary evidence found that from Ext. 5 series and Ext. 11 it was clear that the defen­dant had been a monthly tenant under Begum Zohora Hossain in respect of the suit premises at a rental of Tk. 150/- payable according to English Calendar month and since the plaintiffs became owner of the suit premises by purchase the defendant became a monthly tenant under them. It was also found that the defendant cannot deny the title of the plain­tiffs being a tenant and that he was a defaulter upon whom notice under Section 106 Transfer of Property Act was duly served.
 
7. It is found from the High Court Judgement that submission was mainly made on behalf of the defendant assailing the title deeds (Ext. 24 series) of the plaintiffs. The learned Judge upon a consideration of the submissions found that the plaintiffs have acquired valid title to the suit premises from the heirs of Mr. Zakir Hossain on the basis of Ext. 4 series. The learned Judge further observed in his judgment that the findings of fact made by the learned S.C.C. Judge were not challenged before him although the jurisdiction to decide the suit was challenged.
 
8. It is evident from the impugned judgment that the question as to existence of relationship of landlord and tenant between the parties was not spe­cifically raised in the High Court Division. Even then we heard submission on behalf of the appellant as to the said question as no other point was pressed save the same.
 
9. Ext. 5 certified copy of a petition under Sec­tion 19(1) of the Premises Rent Control. Ordinance 1963 shows that the defendant filed H.R. Case No. 229 of 1979 against Begum Zohora Hossain for de­positing rent of the suit premises and it was stated by the defendant in the said petition that Begum Zo­hora Hossain had been realizing rent from the defen­dant since 1957 at a monthly rental of Tk. 150/-. This house-rent case was dismissed on contest and the defendant preferred Misc appeal No. 77/83 but subsequently withdrew the same. From Ext. 11 it appears that the defendant filed title suit No. 266 of 1982 against one Haji Khabiruddin and others and in that suit he filed a petition for injunction slating that he had been a tenant in respect of the suit premises under the original owner Raghu Nath and thereafter he admitted Zakir Hossain as this landlord and upon his death paid rent to his daughter Zohora Hossain till 1957. Besides oral evidence these are the two documents on the basis of which the trial Court found that the defendant was tenant under the predecessor-in-interest of the plaintiffs.
 
10. Mr.T.H. Khan could hardly advance any submission in respect of the said documents relied on by the trial court for finding that the defendant was a tenant under Begum Zohora Hossain. Mr. Khan now tried to argue on the basis of a case re­ported in XXXIII DLR (AD) 37 (Amar Chandra Saha Vs. Ajit Kumar Das) that mere deposit of rent in the name of Begum Zohora Hossain did not ipso facto prove attornment by the defendant to the plaintiffs predecessors. This argument, evidently one of last resort, cannot be considered because it is found that the question of attornment was not raised either in the pleading or in the proceeding at any time. As a matter of fact, the question of attornment does not arise at all because the defendant's case is that he was never a tenant under anybody including the plaintiff’s predecessors. He denied having paid any rent at all to the heirs of late Mr. Zakir Hussain.
 
11. The plaintiffs having acquired good title from the heirs of late Mr. Zakir Hossain have stepped into the shoes of the landlord and in view of the findings made by the trial court the defendant cannot evade ejectment as a tenant from the suit pre­mises. We find no substance in the only contention raised on behalf of the appellant that there existed no relationship of landlord and tenant between the parties.
 
The appeal is, accordingly, dismissed without any order as to cost.
 
Ed.