Khuman Singh v. Nathuram — 1990 DIGILAW 94 (MP)

JUDGMENT S. Awasthy, J. -- 1. This appeal arises against the judgment and decree dated 18.7.1986 passed in Civil Appeal No. 62-A of 1983 by th6 4th Additional Judge to the Court of the District Judge, Jabalpur arising out of the judgment and decree dated 18.8.1983 passed in Civil Suit No. 15-A of 1982 by the 11th Civil Judge, Class-II, Jabalpur. 2. The plaintiff-respondent pleaded that he purchased house No. 221, Gokalpur from one Umashankar Pandey vide registered sale-deed dated 5.3.1976. He claimed rent at the rate of Rs. 15/- per month from the date of purchase vide notice dated 21.4.76 which was served on the appellant on 3.8.76. The rent was not paid within 2 months of the service of notice, hence a ground under section 12(1)(a) of the M.P. Accommodation Control Act (hereinafter referred to as 'the Act') accrued to him. He had purchased the house for the purpose of residence of himself and his family members. He has no other suitable residential accommodation in Jabalpur town, hence a ground under section 12(1)(e) of the Act accrued in his favour. The defendant has denied the title of the plaintiff in his written statement, hence ground under section 12(1)(c) of the Act also accrued in his favour. It was also pleaded that the defendant has two more houses in his possession, hence a ground under section 12(1)(i) of the Act for eviction of the tenant is available to the plaintiff-landlord. Since the defendant did not vacate the house, the suit was filed on 20.10.76 for his ejectment and arrears of rent amounting to Rs. 92.50 p. 3. The defendant-appellant stated in his written statement that Rameshwar Dayal and Parmeshwar Dayal were his landlords. Both of them are now dead. Rameshwar Dayal is survived by his two sons viz., Umashankar and Shivshankar while Parmeshwar Dayal is survived by his widow and sons. The suit house is purchased from Umashankar only. Therefore, by virtue of purchase of the house the plaintiff-respondent alone is not his landlord and the owner of the house. It is admitted that the defendant is a tenant in the suit house on Rs. 15/- monthly rent. The alleged purchase by the plaintiff-respondent was also denied. It is also denied that any notice of demand was served on the appellant. It is averred that the plaintiff-respondent alone is not entitled to recover the entire rent from the appellant-defendant. It is admitted that the defendant is a tenant in the suit house on Rs. 15/- monthly rent. The alleged purchase by the plaintiff-respondent was also denied. It is also denied that any notice of demand was served on the appellant. It is averred that the plaintiff-respondent alone is not entitled to recover the entire rent from the appellant-defendant. The alleged need of the plaintiff was also denied. It was stated by the defendant that the suit has been filed within one year of the alleged purchase, hence not maintainable under section 12(4) of the Act. It is also pleaded that the defendant has no house belonging to him, hence no decree under section 12(1)(i) of the Act could be passed against him. It was pleaded that the rent upto the month of June, 1976 was paid to the widow of Parmeshwar Dayal, Shivshankar and Umashankar Pandey; hence the rent of the premises is due only since July, 1976. The defendant has spent Rs. 250/- in the repairs of the house which amount is liable to be adjusted in the arrears of rent. It is also pleaded that there was an agreement entered by the wife of the appellant for purchasing the suit house with the owners and an amount of Rs. 1,000/- has been paid as earnest money for which a suit is pending in the Court of 3rd Civil Judge, Class-II, Jabalpur. Till the disposal of that suit the proceedings in this suit should be stayed. 4. The learned Judge of the lower appellate Court came to the conclusion that the appellant is the tenant of the respondent from 5.3.76 when he purchased the suit house from Umashankar Pandey, who was his landlord as he was collecting rent. Since Nathuram-respondent has stated that he has purchased the house for his residential purposes and he is living in the house of one Girjabai as her tenant and since there is no other alternative residential accommodation available to him, hence he is entitled to a decree under section 12(1)(e) of the Act. 5. The learned Judge of the lower appellate Court has held that the bar of one year of maintainability of the suit, after purchase of the premises would not be applicable, if the plaint though filed within one year is amended after lapse of the statutory period of one year from the date of purchase. 5. The learned Judge of the lower appellate Court has held that the bar of one year of maintainability of the suit, after purchase of the premises would not be applicable, if the plaint though filed within one year is amended after lapse of the statutory period of one year from the date of purchase. For this, the learned Judge of the lower appellate Court has relied on the cases of Chhotelal v. Akbarali 1983 JLJ 107 = AIR 1983 MP 50 (MB) and Sunderlal v. Har Prasad 1980 JLJ 475 = 1980 MPLJ 182. His view is that the suit in spite of the statutory bar under section 12(4) of the Act would become maintainable after the lapse of one year from the date of purchase, if an amendment to that effect is incorporated in the plaint. 6. The learned Judge of the lower appellate Court thus decreed the suit on the grounds under sections 12(1)(a), 12(1)(c) and 12(1)(e) of the Act. 7. So far as the decree on the ground under section 12(1)(a) of the Act is concerned, the entire arrears of rent have been paid by the appellant and since under section 13(2) of the Act the dispute pertaining to the amount of rent was not decided by the Court below, I have condoned the delay, if any, vide order dated 7.2.1990 and the plaintiff's claim under that ground has been rejected. 8. As regards the decree under section 12(1)(c) of the Act: It is no longer in dispute that a denial of the landlords title affects him adversely and it also affects him substantially. It is to be seen as to what 'disclaimer of title' means. The defendant when he asserts his own title in respect of the tenanted premises, it is undoubtedly disclaimer of the landlord's title, but if he denies derivative title of the landlord, it is not a ground for his eviction. Chandabai v. Ramchandra 1985 MPRCJ (N) 93. In a case where tenant setting up title in a third person denies the title of the plaintiff landlord to the suit property, it amounts to the disclaimer of the plaintiff's title. 9. Chandabai v. Ramchandra 1985 MPRCJ (N) 93. In a case where tenant setting up title in a third person denies the title of the plaintiff landlord to the suit property, it amounts to the disclaimer of the plaintiff's title. 9. The principle that a tenant cannot deny the title of his landlord is one which applies only to a suit brought by the landlord against his tenant whom he had inducted in possession of the demised premises, but challenging the derivative title is not a ground available under section 12(1)(c) of the Act. (Purshottam Das v. Firm Gangaram Bhagwan Das 1982 MPRCJ (N) 156). 10. In the case of Krishan Prasad v. Baraboni Coal AIR 1937 PC 251, it has been observed:- "........ the section applies against the lessee, any assignee of the term and any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who 'let the tenant in' as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end" .........'The tenancy' under section 116 does not begin afresh every time the interest of the tenant or of the landlord devolves upon a new individual by succession or assignment .......". In the case of Pandit Ramjilal v. Vijai Kumar 1970 JLJ 20 = 1970 MPLJ 50 (DB) this Court observed:- "......the contention that the defendant No.1 could not deny the title of his landlord is a principle which applies only to a suit brought by the landlord against his tenant who had inducted him in possession of the demised premises .......". Another Division Bench of this Court in the case of Mirkhan v. Kutub Ali 1979 JLJ 126 = 1979 MPLJ 155 relied on the case of Krishna Prasad v. Baraboni Coal Concern (supra) and held: "It is now settled law that the doctrine of estoppel under section 116 of the Evidence Act applies where the tenant has been let into possession by the landlord. But where the landlord himself did not induct the tenant into property but claims his position under a derivative title, such as assignee, donee, lessee, heir etc., there is no estoppel against tenant. So a tenant already in possession is entitled to show that the plaintiff does not possess the derivative title he claims, but it is in some other person". 11. The doctrine of estoppel under section 116, Evidence Act does not apply where the landlord himself did not induct the tenant but claims a derivative title. A tenant already in possession is entitled to show that plaintiff does not possess the derivative title he claims but it is in some other person. For challenging such derivative title defendant tenant does not come within the mischief of section 12(1)(c), M.P. Accommodation Control Act and it is not liable to be evicted on that ground. 12. It is always open to the defendant to plead that the plaintiff alone is not the owner of the property and so the suit is not maintainable. This does not amount to disclaimer of title. (Satya Narayan Mukheljee v. Singhai Amritlal 1979 MPRCJ 102). 13. The plaintiff in para 2 of the plaint has mentioned that he had purchased the house from Umashankar Pandey who was the landlord of the defendant and a notice informing the defendant by the plaintiff and also by Umashankar Pandey was served on him, but he did not pay the rent and sent a false reply through his counsel. It was mentioned by way of amendment in para 5-A of the plaint that in the written statement, the defendant has denied the title of the plaintiff and he is liable to be evicted under section 12(1)(c) of the Act. It is no longer in dispute that the denial of the title in the written statement does not attract the provision of section 12(1)(c) of the Act. It is no longer in dispute that the denial of the title in the written statement does not attract the provision of section 12(1)(c) of the Act. However, in arguments it is submitted that prior to filing of the suit, in reply to the notice Ex.P.4, he has denied that the plaintiff has purchased the suit house from the ex-landlord of the defendant, Umashankar Pandey. It is though admitted that the defendant is in occupation of the suit house as a tenant. It is submitted at the bar that the title of the landlord was disclaimed by the defendant even in reply to notice Ex.P.4, hence the ground under section 12(1)(c) of the Act shall be available to him. 14. I do not agree with this submission. First of all, the plaintiff should have pleaded, giving an opportunity to the tenant, regarding the alleged disclaimer of title, in reply to the notice Ex.P.4. Secondly, denial in reply notice of all the allegations, does not amount to disclaimer especially when the defendant has pleaded that the plaintiff alone is not his landlord and he has demonstrated in para 12 of the written statement pleading the facts that who were his joint landlords, and the sale by one of the co-owners who was one of the joint landlords does not make him the sole landlord of the suit house. In my view the Courts below were not right in granting a decree under section 12(1)(c) of the Act. In view of the facts and pleadings shown above, I reject the ground under section 12(1)(c) of the Act for granting a decree of the ejectment. 15. Regarding ground under section 12(1)(e) of the Act:- The learned counsel for the appellant argued that in original para 5 of the plaint dated 20.10.1976, the plaintiff had pleaded that he has purchased the suit house for the need of his residence. The house is a residential accommodation which is suitable for the residence of the plaintiff and his family members and there is no other alternative accommodation available to him in the town for residence of the members of his family. At present he is occupying a tenanted premises. Therefore, he is entitle to eject the defendant from the suit premises. The house is a residential accommodation which is suitable for the residence of the plaintiff and his family members and there is no other alternative accommodation available to him in the town for residence of the members of his family. At present he is occupying a tenanted premises. Therefore, he is entitle to eject the defendant from the suit premises. By amendment incorporated on 14.12.77, the plaintiff has pleaded that he had purchased the house on 5.3.1976; period of one year has elapsed and, therefore, he is entitled to a decree under section 12(1)(e) of the Act. The defendant had in his written statement denied all those allegations and pleaded that the suit is not maintainable on the ground of section 12(1)(e) of the Act as barred under section 12(4) of the Act. In reply to the amendment, the same pleading has been repeated. 16. The argument of the learned counsel for the respondent is that though there was an averment in the plaint para 5 regarding the bona fide need and the suit was filed within one year of the purchase by the landlord, yet that pleading became available to him only after the lapse of one year from the date of the purchase. The amendment has been allowed by the Court which was legal, hence in view of Full Bench decision rendered in Chhotelal v. Akbarali (supra) and Sunderlal v. Har Prasad (supra) the amended ground would he available to him from the date of amendment was allowed. The said ground has been found in favour of the landlord plaintiff. He is, therefore, entitled to a decree under section 12(1)(e) of the Act. He further argued that by driving the plaintiff to another suit on the ground which was available to him after the lapse of one year of the purchase of the house, there would be multiplicity of the proceedings and in order to save the time and also multiplicity of suits, it should be held that due to the amendment in the plaint the plaintiff had acquired a right to eject the tenant during the pendency of the suit. It is a subsequent event and, therefore, decree passed in his favour is according to law. He relied on the ease of Avnash Kaur v. Avinash Nayyar AIR 1975 Delhi 46 (FB). It is a subsequent event and, therefore, decree passed in his favour is according to law. He relied on the ease of Avnash Kaur v. Avinash Nayyar AIR 1975 Delhi 46 (FB). He further argued that such a relief could be granted under order VII, rule 7 of the Code of Civil Procedure and relied on the cases of Rameshwar v. Jot Ram AIR 1976 SC 49 , P. Venkateswarlu v. Motor & General Traders AIR 1975 SC 1409 , A.N. Shah v. Annapuranamma AIR 1959 AP 9 and R. Shahi v. Bala Prdsad Motani AIR 1978 Patna 91. 17. The learned counsel appearing for the appellant argued that there is a specific prohibition under the law to file a suit on the ground of bona fide need within one year from the date of purchase. The amendment incorporated in the plaint would revert back to the date of filing of the suit. The pleading regarding bona fide need was raised in the original plaint. The amended pleading merely states that now the period of one year is over, hence the Court can try issue of bona fide need. The pleading on the date when the suit was filed regarding bona fide need was not maintainable and, therefore, they should not have been looked into. The pleading by amendment is not regarding bona fide need, but merely that one year period has elapsed and the plaintiff can plead his bona fide need. Apart from this, he relied on the eases of Chhotelal v. Akbarali (supra) and Sunderlal v. Har Prasad (supra) which were relied by the plaintiff-respondent. He submitted that these cases do not lay down that the amendment, even if allowed, would entitle the plaintiff to get a decree under section 12(1)(e) of the Act. On the contrary, his submission was that the aforesaid eases lay down that in spite of the amendment having been allowed by the Court, it is yet to be seen if the pleading regarding those grounds which are prohibited under the law could have been raised in the suit. He again relied on the case of Dinanath v. Kishore Kumar 1981 (I) MPWN 110 . He further submitted that there is no authority cited by the plaintiff-respondent wherein a plea under section 12(1)(e) of the Act was taken under the present circumstances and was allowed by the High Court. He again relied on the case of Dinanath v. Kishore Kumar 1981 (I) MPWN 110 . He further submitted that there is no authority cited by the plaintiff-respondent wherein a plea under section 12(1)(e) of the Act was taken under the present circumstances and was allowed by the High Court. On the contrary, the case relied by him is applicable on all force. 18. In the ease of Chhotelal v. Akbarali (supra) the Full bench of this Court observed:- "The aforesaid decision clearly establishes that the ground for eviction must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made". It is further observed:- "6. ...... There is nothing in the language of S. 12(1) of the Act, which forbids addition of a ground for eviction in a suit for eviction already instituted in accordance with the provisions of S. 12(1) of the Act. It may be, that in some cases, the requirement of a particular ground specified. In S. 12(1) of the Act is such as cannot be fulfilled unless that ground has come into existence prior to the filing of the suit, as in the case of a ground specified in section 12(1)(d). But tenability of a ground sought to be added by way of amendment, does not affect the jurisdiction of a Court to permit that amendment. It may be that in such a case, it would be a sound exercise of discretion by the Court, if leave to amend is refused inasmuch as a decree for eviction cannot be passed on such a ground. But as already observed, this aspect of the matter has no impact on the question of jurisdiction of the Court to permit the plaintiff to amend the plaint by adding a new ground for eviction .......". I quote section 12(1)(d) of the Act for ready reference: "12. Restriction of eviction of tenants. But as already observed, this aspect of the matter has no impact on the question of jurisdiction of the Court to permit the plaintiff to amend the plaint by adding a new ground for eviction .......". I quote section 12(1)(d) of the Act for ready reference: "12. Restriction of eviction of tenants. (1) --- (d) that the accommodation has not been used without reasonable cause for which it was let, for a continuous period of six months immediately preceding the date of the filing of the suit for the recovery of possession thereof;" The Full Bench has not quoted section 12(4) of the Act, which I reproduce hereunder:- "Where a landlord has acquired any accommodation by transfer, no suit for the eviction of tenant shall be maintainable under sub-section (1) on the ground specified in clause (e) or clause (f) thereof, unless a period of one year has elapsed from the date of acquisition". Thus, the Full Bench lays down that even though the Court has jurisdiction to allow the amendment, the tenability of the ground so added is not effected. 19. In the case of R. Shahi v. Bala Prasad Motani (supra), it has been held that the appellate Court can take subsequent event into consideration and grant decree for eviction. There is no dispute to the aforesaid proposition of law which has also been enunciated in the cases of A.N. Shah v. Annapuranamma (supra), Avnash Kaur v. Avinash Nayyar (FB) (supra), Rameshwar v. Jot Ram (supra) and P. Venkateswarlu v. Motor & General Traders (supra). 20. In the case of Sunderlal v. Har Prasad (supra) the provisions under section 12(4) of the Act have not been considered. Moreover, the Full Bench in the case of Chhotelal v. Akbarali (supra) has held that the case of Sunderlal v. Har Prasad (supra) does not lay down the correct law. 21. In the case of Dinanath v. Kishore Kumar (supra), it has been held that if such a plea is allowed to be taken by way of amendment, the very purpose of section 12(1) read with sub-section (4) of the Act would be defeated. 21. In the case of Dinanath v. Kishore Kumar (supra), it has been held that if such a plea is allowed to be taken by way of amendment, the very purpose of section 12(1) read with sub-section (4) of the Act would be defeated. If this case is read along with the Full Bench case of Chhotelal v. Akbarali (supra), it will leave no manner of doubt that a decree under section 12(1)(e) of the Act could have not been passed in this suit as it would offend the aforesaid two provisions under section 12 of the Act. 22. I, therefore, allow the appeal and dismiss the suit. Under the facts and circumstances of this case the parties are directed to bear their cost throughout.