JUDGMENT - DHANUKA D.R., J.:—By this petition filed under Article 227 of the Constitution of India the petitioners have impugned the judgment and decree dated 18th July, 1981 passed by the Fourth Extra Assistant Judge, Pune in Civil Appeal No. 68 of 1978 arising from decree of dismissal of Civil Suit No. 94 of 1972 decided by the Court of the Second Additional Small Cause Judge, Pune. 2. The crucial facts which are required to be set out for disposal of this petition may briefly be summarised as under : 3. One Rahimathi widow of Isaq Dilsha Fakir was the owner of a plot of land situated at Pune on which House No. 247 was constructed by the tenant one Dayanand Bari. On 4th November, 1932 Rahimathi has executed a deed lease in respect of the said plot of land in favour of one Dayanand Bari for a period of 30 years. The said tenant was allowed to construct a building on the said plot of land. The tenant constructed a building on the said plot of land. The said tenant sold House No. 247 to Misgar Jamat Panch Trust under a sale deed dated 25th July, 1933. One of the tenements consisting of 6 Khans situate on the ground floor of House No. 247 was let out by the said trust to Bapubhai Atar, the predecessor-in-title of the petitioner herein on monthly rent of Rs. 12.30. It was a condition of the indenture of lease dated 4th November, 1932 executed between Rahimathi and Dayanand Bari that on the expiry of 30 years the plot of land together with the building that may be built by the lessee shall revert to the lessor. 4. One Kamrunnisa, daughter of Rahimathi succeeded to the right, title and interest of Rahimathi in the above referred property. After the death of Kamrunnisa, the said property was inherited by Smt. Khairunnisa, the respondent herein. The said Smt. Khairunnisa Abdul Kadar was the plaintiff in Civil Suit No. 94 of 1972 filed by her against Bapubhai Papabhai for his eviction from the tenement obtained by the defendant as a tenant of Misgar Jamat Panch Trust. The petitioners herein are heirs and legal representatives of the original tenant Bapubhai Papabhai Atar who was the tenant of 6 Khans in the said building. 5. For the first time on 1st February, 1971 Mrs. The petitioners herein are heirs and legal representatives of the original tenant Bapubhai Papabhai Atar who was the tenant of 6 Khans in the said building. 5. For the first time on 1st February, 1971 Mrs. Khairunnisa Abdul Kadar served a notice on Shri Bapubhai Papabhai Atar informing him that rent payable by Bapubhai Papabhai Atar in respect of the portion of House No. 247 should be paid to Mrs. Khairunnisa Abdul Kadar. It was the case of the respondent that the respondent had become owner of House No. 247 on expiry of 30 years from 4th November, 1932 by virtue of a clause in deed of lease dated 4th November, 1932. It is of significance that Mrs. Khairunnisa purported to exercise her right as landlord of said structure No. 274 after 9 years from expiry of the lease hereinabove and not immediately. It was also the case of the tenant at all material time that the tenant was not aware of the provisions contained in lease. The predecessor in title of the petitioner requires the plaintiff to prove her title to the said House No. 247, the original defendant having acquired tenancy in respect of tenement in his presence from Misgar Jamat Panch Trust who was admittedly the owner-of the building for number of years. 6. Sometime in 1972, the plaintiff Smt. Khairunnisa Abdul Kadar filed a suit for eviction against the said Bapubhai Papabhai Atar under the provisions of Bombay Rent Act, 1947. The said suit was heard more than once. The said suit was remanded for fresh hearing to the trial Court by an order passed in appeal. Ultimately on remand the said suit was decided by an order dated 13th October, 1977. The Court of Small Causes, Pune held that the plaintiff had proved her title to the suit property but the plaintiff had failed to prove any of the grounds of eviction put forward by the plaintiff in the plaint. In the plaint filed in the said suit the plaintiff had contended that the defendant was in arrears of rent for a period of more than six months and that the defendant had failed to pay the said amount within the notice period of one month after service of alleged notice of demand on the defendant under section 12(2) of the Act. In the plaint it was also averred by the plaintiff that the plaintiff required the eviction of the defendant in respect of the suit tenement for her personal, reasonable and bona fide occupation. It was alleged that the defendant was guilty of nuisance and annoyance. On each of the grounds of eviction put forward in the plaint the trial Court recorded findings in favour of the defendant and against the plaintiff. In the result the suit was dismissed. 7. Being aggrieved by the said judgment and order of dismissal of suit passed on 13th October, 1977 the original plaintiff filed an appeal before the Court of the District Judge, Pune. None of the findings recorded by the trial Court in its judgment was reversed in appeal. It was however observed in para 12 of the judgment by the Appellate Court that the defendant was liable to be evicted from the suit premises as the defendant had denied the title of the plaintiff in respect of the said premises and the alleged denial of title by the defendant in the written statement by itself was enough to pass a decree of eviction against the defendant. 8. Section 16 of the Evidence Act, 1872 estops the tenant from denying the title of the landlord. The said section reads as under: “No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.” The said section estops the tenant from denying the title of the landlord who had inducted the tenant in possession of the demised premises. In the present case the petitioner came into possession of the suit premises as a tenant of Misgar Jamat Panch Trust much prior to November 1962. At no point of time the plaintiff or the predecessors-in-title disputed the title of their landlord who had created tenancy in respect or the suit premises in their favour. The petitioner or the predecessors-in-title did not send any reply to the notice dated 1st February, 1971. At no point of time the plaintiff or the predecessors-in-title disputed the title of their landlord who had created tenancy in respect or the suit premises in their favour. The petitioner or the predecessors-in-title did not send any reply to the notice dated 1st February, 1971. It is not averred in the plaint that the defendant had denied the plaintiff's title to the suit property. It is impossible to hold that the defendant had denied the title of the plaintiff prior to filing of the suit. In fact, the defendant never denied the title of the suit property as such. The plaintiff was claiming title to the suit property by virtue of a clause in the indenture of lease dated 4th November, 1932 executed between the predecessors-in-title of the plaintiff and predecessors in title of the said Misgar Jamat Panch Trust. The tenants inducted by the former owners of the structure were entitled to scrutinise the alleged title of new plaintiff. It was not contended in the plaint filed in Suit No. 94 of 1972 that the defendant was liable to be evicted from the suit premises on the ground of alleged denial of title. The trial Court did not frame any issue on the question as to whether the defendant was liable to be evicted from the suit premises by reason of alleged denial of the petitioner's title to the suit property. The plaintiff had sought eviction of the defendant on three of the grounds set out in the plaint i.e. alleged arrears of rent for a period of more than six months, bona fide requirement and on the ground of nuisance and annoyance: The plaintiff failed to prove each of the said grounds before the trial Court. The Appeal Courts had not reversed the finding of the trial Court in respect of failure of the plaintiff to prove the grounds of ejectment put forward by the plaintiff in the plaint. 9. Shri Vaze, learned Counsel for the respondent has submitted that the petitioners and their predecessors-in-title had lost protection of the Bombay Rent Act by reason of “denial of plaintiff's title” to the suit property and it was not necessary for the plaintiff to prove any ground of eviction under section 12 or section 13 of the Bombay Rent Act, 1947. Shri Vaze, learned Counsel for the respondent has submitted that the petitioners and their predecessors-in-title had lost protection of the Bombay Rent Act by reason of “denial of plaintiff's title” to the suit property and it was not necessary for the plaintiff to prove any ground of eviction under section 12 or section 13 of the Bombay Rent Act, 1947. On this aspect Shri Vaze had heavily relied on the ratio of the Division Bench judgment in the case of (Ratanlal Manikchand Shah v. Chanbasappa Sanganbasappa Chincholi)1, A.I.R. 1978 Bom. 216. Shri Apte, learned Counsel for the petitioners, has invited attention of the Court to the recent judgment of B.N. Srikrishna, J., in the case of (Lena Pereira v. Mary Boracho)2 reported in 1992(1) Bom.C.R. 118 . It was held in this case by B.N. Srikrishna, J., that the tenant could not be evicted on the ground of denial of landlord's title unless disclaimer of title was made a ground of eviction in the plaint. The learned Judge held that the tenant could not be evicted from the premises in a suit filed under the Bombay Rent Act, 1947 merely on the ground that the tenant had raised a frivolous plea disputing the landlord's title in his written statement. It was held by the Court that the Court could not pass a decree for eviction merely because the tenant disputed the landlord's title in the written statement. It must be clarified at the outset that in this case the tenant did not dispute the title of the plaintiff prior to the filing of the suit. The plaintiff did not sue the defendant for eviction on the ground of denial of title. Some sort of dispute denying the title of the plaintiff was raised by the defendant for the first time in the written statement. I am not prepared to construe this plea as a plea of denial of title. It must, however, be stated that the plaintiff did not base her claim for eviction in the suit on the basis of alleged denial of title even by seeking amendment of the plaint. No such amendment was sought. I am not prepared to construe this plea as a plea of denial of title. It must, however, be stated that the plaintiff did not base her claim for eviction in the suit on the basis of alleged denial of title even by seeking amendment of the plaint. No such amendment was sought. Merely because the tenant of predecessor in title requires the new landlord to prove her title to the said property it does not follow that the tenant has renounced his character as a tenant or the tenant has disowned the title of the landlord or that the relationship between the tenant and landlord is abandoned or repudiated by the tenant. I am completely in agreement with the statement of law propounded by B.N. Srikrishna, J., in the above referred case. The attention of the learned Judge in the above case was invited by the learned Counsel appearing in that case to the Division Bench judgment of this Court in Ratanlal Manikchand Shah v. Chanbasappa Sanganbasappa Chincholi, A.I.R. 1978 Bom. 216. I shall now proceed to deal with the submission of the learned Counsel Shri Vaze in Ratanlal's case. In Ratanlal Manikchand Shah's case the plaintiff had filed a title suit against various defendants impleading the occupants as party defendants to the suit. The question before the Division Bench of our High Court was as to whether the said suit ought to have been filed in the Court of Small Causes and whether section 28 of the Bombay Rent Act, 1947 was attracted. In para 26 of the Division Bench judgment, it was observed by Mridul, J., speaking for the Bench that in that case the plea of disclaimer was raised prior to the date of the suit and tenant concerned had in fact contended prior to the filing of the suit that the real owner of the suit premises was defendant No. 2 and not the plaintiffs. In the context the Division Bench of our High Court held that the Civil Court had jurisdiction to entertain the suit and section 28 of Bombay Rent Act, 1947 was not attracted. In the context the Division Bench of our High Court held that the Civil Court had jurisdiction to entertain the suit and section 28 of Bombay Rent Act, 1947 was not attracted. In this context of controversy the Court held that having regard to the dispute of title between the parties the matter fell outside the purview of section 28 of the Bombay Rent Act, 1947 as the dispute of title could not be decided by the Court of Small Causes functioning as Rent Court under section 28 of the Bombay Rent Act. In the case before the Division Bench, the tenant concerned had renounced the title of the plaintiff to the suit property and had positively set up a title in defendant No. 2 in respect of the very same property. The plaintiff was, therefore, justified in filing the suit in the Civil Court seeking adjudication of his title to the suit property. B.N. Srikrishna, J., observed in Lena Pereira's case that in the matter before the Hon'ble Division Bench the tenant had denied the landlord's title prior to the date of filing of the suit. In this case the petitioner did not raise any dispute in respect of the title to the suit property prior to the filing of the suit. Even after filing of the suit the petitioner did not deny the title to the suit property as such. In my view the plaintiff cannot succeed in the suit filed under the Bombay Rent Act unless the Court is satisfied as to the existence of one or more grounds of eviction in terms of section 12 or section 13 of the Bombay Rent Act. The plaintiff based her claim for eviction on three grounds but failed to prove either of the grounds set out in the plaint. Having failed to prove the grounds of eviction put forward in the plaint, the Appeal Court ought to have dismissed the appeal. The appellate judgment suffers from error of law apparent on the face of the record in so far as it passes a decree of eviction on a totally new ground not set out in the plaint. The appellate decree suffers from error of jurisdictional defect. The appellate decree is liable to be quashed. 10. In the result, the petition succeeds. The appellate judgment suffers from error of law apparent on the face of the record in so far as it passes a decree of eviction on a totally new ground not set out in the plaint. The appellate decree suffers from error of jurisdictional defect. The appellate decree is liable to be quashed. 10. In the result, the petition succeeds. The judgment and decree passed by the Appellate Court on 18th July, 1981 in Civil Appeal No. 68 of 1978 is quashed and set aside. The judgment and decree passed by the trial Court on 13th October, 1977 in Civil Suit No. 94 of 1972 is restored. Rule is made absolute in the terms aforesaid. Having regard to the facts of the case there shall be no order as to costs. Petition allowed. -----