V. A. Chacko v. Koyappa Kolothu Kammutty Haji — 1992 DIGILAW 432 (KER)

JUDGMENT 1. The defendant is the appellant. The suit as amended was for recovery of possession of a shop room on the strength of the respondent's title. The respondent is a tenant of the shop room under one Appu, on a monthly rent of Rs. 150 which was subsequently enhanced to Rs. 225. The building is situate in Kozhikode town and the provisions of the Kerala Buildings (Lease and Rent Control) Act are applicable to the area wherein the building is situate. The respondent was conducting a hotel in the building. He stopped the said business. It is the respondent's case that then he entered into a partnership with the appellant for the purpose of doing a business in dealing in old cars and as brokers. Ext. A-1 dated 23rd January 1979 is the deed of partnership entered into between the respondent and the appellant. After this business was started landlord Appu filed R. C. P. 22 of 1981 before the Rent Control Court under S.11 of the Kerala Buildings (Lease and Rent Control) Act claiming eviction against the respondent and the appellant under S.11(4)(i) of the Act on the allegation that the respondent, the tenant had sublet the building to the appellant herein and that the said subletting was unauthorised and that therefore landlord Appu is entitled to an order for eviction under the Rent Control Act, The respondent and the appellant herein together resisted that application by pleading that there was no subletting by the respondent to the appellant: as alleged by landlord Appu and that as a matter of fact the respondent and the appellant herein were partners in a joint business formed under Ext. A-1 partnership deed and registered with the Registrar of Firms under S.69 of the Indian Partnership Act, that forming a partnership by a tenant with another did not constitute subletting within the meaning of S.11(4)(i) of the Rent Control Act and that therefore the application for eviction was liable to be dismissed. The question whether the appellant herein was a tenant under the respondent and thereby a subtenant in the building was considered by the Rent Control Court. The Rent Controller by order dated 21st June 1982 marked in this case as Ext, A-5 found that the respondent and the appellant were partners and that there was no sublease so as to attract S.11(4)(i) of the Act. The Rent Controller by order dated 21st June 1982 marked in this case as Ext, A-5 found that the respondent and the appellant were partners and that there was no sublease so as to attract S.11(4)(i) of the Act. Though this finding of the Rent Controller was reversed by the Rent Control Appellate Authority which ordered eviction on the ground of subletting on a revision by the respondent and the appellant herein together as R.C.R.P. 20 of 1985 the Rent Control Revisional Authority, the District Judge held that the respondent and the appellant were partners of a business in terms of Ext. A-1 deed of partition and that the appellant was not a tenant under the respondent and that there was no subletting by the respondent to the appellant as alleged by landlord Appu and that therefore landlord Appu was not entitled to an order for eviction under S.11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act. The order of the Revisional Authority in R.C.R.P. 20 of 1985 has been produced as Ext. A-6 in the present proceeding. The claim for eviction by landlord Appu on the ground of subletting thus was finally rejected by the Rent Control Authorities on finding that the respondent, and the appellant herein are partners in a business. 2. It is the case of the respondent that after some time the appellant failed to honour his obligations under the deed of partnership Ext. A-1 and the partnership being one at will he issued a notice Ext. A-8 dated 10th December 1986 dissolving the partnership. The further case of the respondent is that in terms of the deed of Partnership once the partnership was dissolved the appellant had no right to enter the premises as the premises all along belonged to him and had been made available by him only for the purpose of carrying on the partnership business. The respondent originally filed the suit as one for injunction based on the terms of the partnership deed Ext. A-1 and the absence of any right in the appellant to enter the premises. Subsequently the suit was amended by him into one for recovery of possession on an averment that the appellant trespassed into the building pending the suit. The ultimate relief claimed by the respondent was that he was entitled to recover possession of the building on the strength of his title. Subsequently the suit was amended by him into one for recovery of possession on an averment that the appellant trespassed into the building pending the suit. The ultimate relief claimed by the respondent was that he was entitled to recover possession of the building on the strength of his title. The appellant resisted the suit. He sought to go back upon the common defence adopted by him and the respondent in RCP. 22/1981 filed by 'landlord Appu and raised the contention that he is really a tenant under the respondent protected by the Kerala Buildings (Lease and Rent Control) Act. In effect what he contended was that he was a subtenant under the respondent and thereby supporting the stand adopted by. landlord Appu in the rent control proceedings. The appellant's further case was that the partnership deed Ext. A-1 though entered into by the parties was a sham transaction and it had been entered into only with a view to defeat the claim for eviction made by landlord Appu on the ground of subletting and that therefore the respondent has no right under Ext. A-1 partnership deed either to dissolve the partnership or to prevent him from entering the premises. After the amendment of the plaint seeking recovery of possession on the strength of title the appellant reiterated his contention that he is a tenant under the respondent entitled to the protection of the Kerala Buildings (Lease and Rent Control) Act. He therefore pleaded that he cannot be evicted. 3. The Trial Court found that Ext. A-1 partnership was a sham transaction, but without much discussion entered a finding that the appellant must be found to be a tenant under the respondent notwithstanding the fact that even in the reply notice issued on behalf of the appellant he had made no such claim. The Trial Court dismissed the suit on that finding. The respondent took up the matter in appeal. The lower appellate court by its judgment dated 1st June 1990 affirmed the finding of the Trial Court that Ext. A-1 was sham and that it must have been created in order to defraud the claim of landlord Appu for eviction under the Rent Control Act. Then it posed a question as to whether the appellant was not estopped from contending that he was a subtenant and that the partnership Ext. A-1 was sham and that it must have been created in order to defraud the claim of landlord Appu for eviction under the Rent Control Act. Then it posed a question as to whether the appellant was not estopped from contending that he was a subtenant and that the partnership Ext. A-1 is a sham transaction in the light of the stand adopted by him in the rent control proceedings and 'accepted by the authorities under that Act. For the purpose of adjudicating on that question the lower appellate court remanded the suit to the . Trial Court to enable the parties to amend 'their pleadings' if necessary and to agitate the question of estoppel. The respondent took up the matter before this court by way of C.M.A. 132 of 1990. This court held that to decide the question of estoppel the remand was not necessary, that the parties could be permitted to amend their pleadings even in the lower appellate court and that it was for the lower appellate court to decide the matter afresh after the amendment and on the evidence available in the case. There is some controversy on the scope of the decision in C.M.A. 132 of 1990 which I shall deal with, later. Suffice it to say here that the judgment of the lower appellate court was set aside by this court in C.M.A. 132 of 1990 and the matter was remanded to the lower appellate court for fresh decision, 4. After the remand the pleadings were amended to incorporate the plea of estoppel. The court below thereafter has held that the appellant herein had a choice before the rent control court to rely on Ext. A-1 as a deed of partition and as not amounting to a subletting or to plead outside it. The appellant having chosen to rely on Ext. A-1 and to gain an advantage by averting his eviction from the building leading to the dismissal of R.C.P. 22 of 1981, he is estopped from now putting forward a contention that he is a subtenant under the respondent and that the partnership Ext. A-1 is sham. In that view the lower appellate court has reversed the decree of the Trial Court and has decreed the suit for recovery of possession. This second appeal challenges the correctness of that decree passed by the lower appellate court. 5. A-1 is sham. In that view the lower appellate court has reversed the decree of the Trial Court and has decreed the suit for recovery of possession. This second appeal challenges the correctness of that decree passed by the lower appellate court. 5. According to the learned counsel for the appellant Sri V. P. Mohan Kumar the finding that Ext. A-1 is a sham transaction rendered by the Trial Court and by the judgment of the lower appellate court dated 1st June 1990 has become final in view of the fact that the said finding was not set aside in C.M.A. 132 of 1990 by this court, According to him, all that this court did in C.M.A. 132 of 1990 was to direct the lower appellate court to consider the plea of estoppel by itself rather than remand the case to the Trial Court. The learned counsel for the respondent Sri Sen on the other hand submits that by the decision in C.M.A. 132 of 1990 the entire judgment of the lower appellate court dated 1st June 1990 was set aside and that the question whether the transaction Ext. A-1 is sham or not is also available for him to be canvassed in this second appeal in support of the decree now passed in his favour. As noticed the lower appellate court had in its judgment dated 1st June 1990 held that Ext. A-1 partnership was a sham transaction and was not real partnership and had remanded the case in the following words: "In the result, the finding of the lower court that Ext. As noticed the lower appellate court had in its judgment dated 1st June 1990 held that Ext. A-1 partnership was a sham transaction and was not real partnership and had remanded the case in the following words: "In the result, the finding of the lower court that Ext. A-1 is a sham and nominal document not being acted upon is confirmed, the decree and judgment passed by the lower court are Set aside, the appeal is allowed in part and the matter is remanded to the lower court for giving an opportunity to the appellant to raise the plea of estoppel in a proper manner, and to decide the question after giving an opportunity to both sides to adduce any further evidence in the light of the observations made above and in accordance with law." Though in the body of the judgment in C.M.A. 132 of 1990 this court did not deal with that question as such in conclusion this court set aside the judgment of the lower appellate court and remanded the appeal back to that court making it clear that the plea of estoppel should be decided by that court itself. According to Mr. Sen the "judgment dated 1st June 1990 is only an interlocutory judgment and the judgment, becomes complete only if read in the light of the findings rendered on 30th June 1992 by the lower appellate court after the remand was made by this court. He relies on the decision reported in Satyadhyar v. Smt. Deorajin Debi AIR 1960 SC 941 . There is some substance in this submission of the learned counsel for the respondent in view of the fact that neither the judgment dated 1st June 1990 nor the present judgment could be taken to be completely disposing of the appeal unless they are read together. If the remand order is so construed the adjudication now made is that the lower appellate court has also found that the transaction Ext. A-1 is a sham but that the appellant is estopped from contending so. The whole question would therefore really be as to whether the appellant is estopped from contending that the partnership Ext. A-1 is a sham transaction and that he is a tenant in respect of the building. A-1 is a sham but that the appellant is estopped from contending so. The whole question would therefore really be as to whether the appellant is estopped from contending that the partnership Ext. A-1 is a sham transaction and that he is a tenant in respect of the building. One aspect on which sufficient attention has not been focused by the courts below is in not really deciding the question as to whether the appellant has established the tenancy set up by him even assuming that the transaction Ext. A-1 is sham. Only such a finding would disable the respondent from obtaining a decree for recovery of possession. Only if the appellant establishes that he is a tenant protected by the Rent Control Act could it be contended that the suit for eviction filed by the respondent is not maintainable. I shall therefore first tackle the question as to whether the lower appellate court is right in holding that the appellant is estopped from contending that: he was not a partner with the respondent and that the deed of partnership relied on by the respondent was a sham transaction. 6. Mr. V. P. Mohan Kumar, the learned counsel for the appellant submits that the order Ext. A-5 as affirmed by Ext. A-6 would not operate as res judicata to bar him from contending that he is a tenant under the respondent. According to him on the allegation of landlord Appu in RCP. 22/81 he was not a necessary party even to the proceedings for eviction under the Rent Control Act since he would have been bound by an order by virtue of S.21 of that Act. According to him therefore the real contest in the rent control proceeding was one between landlord Appu and the respondent herein and any adjudication as to whether landlord Appu had established that the building had been sublet by the respondent herein could not in any way affect the appellant nor could it operate as res judicata. According to him therefore the real contest in the rent control proceeding was one between landlord Appu and the respondent herein and any adjudication as to whether landlord Appu had established that the building had been sublet by the respondent herein could not in any way affect the appellant nor could it operate as res judicata. He submitted that a finding that the appellant was a subtenant under the respondent in R.C.P. 22/81 would have led to an order for eviction against the respondent herein and that it was therefore in the interest of the respondent to put forward a plea that the appellant was only his partner and not a subtenant and it is the respondent herein who has really taken advantage of the sham transaction Ext. A-1 to ward off an order for eviction against him. He submits that the appellant had only joined the respondent in filing a joint written statement and that the appellant had even a plea that the written statement was prepared in a blank paper already signed by him. He also submits that since there was no dispute between him and the respondent ' regarding his status any finding made in that proceeding could not operate as res judicata or estoppel by record to bar him from contending that as a matter of fact he is a tenant under the respondent. The learned counsel for the respondent Mr. Sen on the other hand submits that it was also in the interest of the appellant to avert an order for eviction because even according to the appellant he was a subtenant under the respondent and a finding to that effect by the rent control authorities would have led to an order for eviction not only against the respondent but also against the appellant. He therefore submits that the appellant was equally interested in resisting the claim for eviction by landlord Appu and that by the common stand adopted by them in R.C.P. 22/81 the appellant has derived an advantage and that therefore he is now precluded from going back on the stand he had already adopted. He therefore submits that the appellant was equally interested in resisting the claim for eviction by landlord Appu and that by the common stand adopted by them in R.C.P. 22/81 the appellant has derived an advantage and that therefore he is now precluded from going back on the stand he had already adopted. He also submits that a finding as to whether the appellant was a subtenant under the respondent was necessary for a proper adjudication of R.C.P. 22/81 filed by landlord Appu and that a competent tribunal vested with the exclusive jurisdiction ' in that behalf has determined that the appellant was not a tenant under the respondent but was only a partner of the respondent. He therefore submits that the orders Exts. A-5 and A-6 did operate as res judicata barring the appellant from contending that he is a tenant under the respondent or a subtenant of the building under the land owner. 7. Yet another contention raised by the learned counsel appearing on both sides is that the other is barred by principles' of public policy from resiling from the position taken in the earlier rent control proceeding. According to the appellant the respondent had played a fraud on the rent control. authorities by holding out that the appellant was only his partner and not a subtenant, and that he cannot found a cause of action on such a fraud by now contending that on the basis of that transaction he is entitled to evict the appellant. The learned counsel for the respondent Sri Sen on the other hand contended that it is the appellant who is trying to found a: defence on a plea of fraud by contending that they have played a fraud on the Rent Control Court, that they contended that there was a partnership when as a matter of fact he was only a subtenant under the respondent. He. submits that it is not open to the appellant to found a plea on fraud which he claims to have played on the Rent Control Court. This aspect as to whether either of the parties has found his cause of action on fraud and whether the principle in Holeman v. Johnson 1775-1802 All. E.R. Rep. 98, would apply and if it does apply who will be precluded from resiling from the earlier stand adopted are matters to be considered. 8. This aspect as to whether either of the parties has found his cause of action on fraud and whether the principle in Holeman v. Johnson 1775-1802 All. E.R. Rep. 98, would apply and if it does apply who will be precluded from resiling from the earlier stand adopted are matters to be considered. 8. In the application for eviction by landlord Appu on the ground that the respondent has sublet the building to the appellant, the appellant and the respondent put up a joint front to plead that they were partners in fact and that there was no subletting as alleged by landlord Appu. Pursuant to this common defence the appellant and the respondent produced the deed of partnership and the certificate of registration obtained under S.69 of the Indian Partnership Act. Based on those materials and the oral evidence adduced in the case the Rent Controller entered a finding that the appellant was not a subtenant under the respondent but was only his partner and that the creation of a partnership does not transgress S.11(4)(i) of the Rent Control Act. The result was that the application for eviction was dismissed. By that dismissal not only the respondent but also the appellant derived a distinct benefit in that the claim for evicting both of them stood rejected and they were entitled to continue in possession of the building. Though the respondent and the appellant were arrayed on the same, side and there was no conflict of interest as such between, them, it was necessary to decide the question as to whether the "appellant was a subtenant under the respondent so as to finally adjudicate on the application filed by landlord Appu for eviction under S.11(4)(i) of the Act. It can therefore be seen that the finding that there was a partnership between the appellant and the respondent and that the appellant was not a subtenant under the respondent was a finding rendered by a competent tribunal on an essential question of fact that arose for decision before it. It was a finding that was well within its jurisdiction. The finding was absolutely necessary for a final adjudication of the dispute between landlord Appu on the one hand and the appellant and the respondent herein on the other. It was a finding that was well within its jurisdiction. The finding was absolutely necessary for a final adjudication of the dispute between landlord Appu on the one hand and the appellant and the respondent herein on the other. It is contended by Sri Mohan Kumar, learned counsel for the appellant that to satisfy the requirements of res judicata there must also have been a conflict of interest between the defendants inter se and that then only the rule of res judicata would be attracted and that in this case it cannot be said that there was a conflict between the appellant and the respondent in the earlier proceedings. Going strictly by S.11 of the Code and decided cases this could be the position. But when we are dealing with a special statute like the Rent Control Act and the exclusive jurisdiction vested in a tribunal constituted under that Act to decide the question as to whether the respondent is a tenant or as to whether there if a subletting as in this present case it cannot be said that the finding rendered by that tribunal with the exclusive jurisdiction will be ignored. The earlier adjudication being one by the Rent Control Court it is only the general principles of res judicata that are attracted. In applying the general principles of res judicata the strict requirements of S.11 of the Code of Civil Procedure need not always be insisted upon. In this case an essential question .as to the status of the respondent and the appellant which was directly and substantially in issue in an application filed by landlord Appu for eviction on the ground of subletting was rendered by the Rent Controller. The appellant and the respondent had adopted a common stand as against landlord Appu who was contending that the appellant was only a subtenant under the respondent. So that, even though strictly speaking there was no conflict between the appellant and the respondent in the earlier proceeding there was a conflict as to the status of the appellant, whether the appellant was a subtenant under the respondent or whether he was a partner with the respondent. An adjudication has been made by the Rent Controller on that question and that has been confirmed by the revisional authority under the Rent Control Act. In my view the findings rendered in Exts. An adjudication has been made by the Rent Controller on that question and that has been confirmed by the revisional authority under the Rent Control Act. In my view the findings rendered in Exts. A-5 and A-6 to the effect that the appellant is a partner of the respondent and not a tenant under the respondent would operate as res judicata to bar the appellant from now contending that he is a tenant under the respondent. 9. Even if the above conclusion of mine be not correct, I think that the appellant will be estopped from putting forward a contention at this stage that he is a tenant under the respondent. When he was made a party to the earlier proceeding he had a choice. He could have stood by Ext. A-1 and contended that there was only a partnership between him and the respondent or he could have pleaded that he is a subtenant, that the subtenancy was created with the consent of the landlord. He elected to rely on Ext. A-1 to contend that there was no subletting at all. He succeeded and thereby derived an advantage. No doubt the respondent also derived an advantage in that he could also avert an order for eviction. The fact that the respondent also derived an advantage would not enable the appellant to contend that he was not bound by his election. At best he could say that the respondent was also bound by his election. Even if the respondent was also bound by his election the position that would emerge in this case would be that both of them are estopped from contending that there is no valid partnership between them. The respondent in fact has not attempted to resile from that stand but on the other hand he is relying on that stand. It is the appellant who is trying to resile from the stand adopted by him in the earlier proceeding, having elected to pursue a defence that he was only a partner with the first respondent and having derived a benefit therefrom by . warding off an order for eviction it is not now open to the respondent to put forward a contention that there is no partnership between him and the respondent and that he is a tenant under the respondent. The argument of the learned counsel for the appellant Mr. warding off an order for eviction it is not now open to the respondent to put forward a contention that there is no partnership between him and the respondent and that he is a tenant under the respondent. The argument of the learned counsel for the appellant Mr. Mohan Kumar to the effect that his client was not even a necessary party to the earlier proceeding in view of S.21 of the Kerala Buildings (Lease and Rent Control) Act may be correct. But that would not enable the appellant to get over the consequence of the stand adopted by him in the earlier proceeding in a case where he was impleaded and he joined issue with landlord Appu on the question as to whether he was a subtenant or a partner. The fact that the appellant was impleaded and he sought an adjudication on the question involved in the present case is sufficient to estop him from contending that he is a subtenant in this proceeding. S.21 of the Rent Control Act does not prohibit the impleading of a subtenant or an alleged subtenant in an application for eviction filed by a landlord. 10. Mr. Mohan Kumar next contended that the respondent had knowledge of the real facts at the time a joint statement was filed by the appellant and the respondent in R.C.P. 22/81. According to him both knew that in fact there was no partnership but that a sham document has been relied upon. The parties also knew that it was really a case of subletting by the respondent to the, appellant. He therefore submits that the doctrine of estoppel has no application in such a case when the plaintiff had knowledge of the real facts and of the falsity of the plea raised in R.C.P. 22/81. He therefore submits that the respondent cannot invoke the doctrine of estoppel. This is met by Mr. Sen the learned counsel for the respondent by contending that he has not resiled from the stand adopted by him in the rent control proceeding initiated by landlord Appu, on the other hand he is consistent in his stand that there was no subtenancy created in favour of the appellant and that the appellant and himself were only partners. He submits that there is no falsity in the claim by the respondent that the appellant was his partner. He submits that there is no falsity in the claim by the respondent that the appellant was his partner. He therefore submits that the submission made by the learned counsel for the appellant, has really no force in this case. He also submits that he is not challenging Ext. A-1 the deed of partnership nor is he enforcing the deed of partnership. He is only claiming relief of recovery of possession on the strength of his title on an allegation that the partnership has come to an end by the issuance of a notice to, the appellant and that the appellant has no authority to enter the premises or to interfere with his occupation. He therefore submits that , there is no question of applying any principle of estoppel as against him in this case. 11. The suit as amended is one for recovery of possession on the strength of title. The title of the respondent as a tenant under landlord Appu is admitted. The respondent to found his cause of action need not rely on Ext. A-1 or any illegality. There is nothing illegal about the claim of title made by him in that he is a tenant under landlord Appu. That is an established fact. Therefore it is a case where no cause of action is sought to be founded by the appellant on an illegality as attempted to be contended by the learned counsel for the appellant. It is in answer to this claim for recovery on the strength of title that the appellant seeks to resile from the stand he adopted in R.C.P. 22/81 and to contend that he is really a tenant under the respondent protected by the Rent Control Act. It is therefore a case where the question is as to whether the defendant is entitled to plead that he has played a fraud on the Rent Control Court when he held out that he is a partner of the respondent and not his subtenant and in obtaining an order in his favour so as to lead to the dismissal of the application for eviction by the Rent Control Court. 12. It is submitted by Mr. Sen, the learned counsel for . the respondent, that his cause of action for eviction is based on his title as a lessee under landlord Appu and that there is nothing illegal in that transaction. 12. It is submitted by Mr. Sen, the learned counsel for . the respondent, that his cause of action for eviction is based on his title as a lessee under landlord Appu and that there is nothing illegal in that transaction. He submits that the respondent is not and need not rely on any illegality to enforce his claim on title. It is the appellant according to him who is relying on an illegality in that he is now coming forward with a plea that he has played a fraud on the Rent Control Court to obtain an order favourable to him when he there pleaded that he is a, partner of the respondent and not his tenant. Mr. Sen contends that the alleged illegality is not part of his cause of action. He brings to my notice the decision of the Supreme Court reported in Surasaibalini v. Phanindra Mohan AIR 1965 SC 1364 , wherein their Lordships have held: "It is true that if the plaintiff seeks the assistance of the court to effectuate an unlawful transaction, the courts will refuse to assist him. Where, however the plaintiff is seeking to enforce his title to property arid it is not an integral part of his pleading which he must prove to enable him to relief that there was between him and the defendant an unlawful transaction or arrangement which he seeks to enforce, the plaintiff will be entitled to the assistance of the court, even if the initial title of the plaintiff is rooted in an illegal transaction." The learned counsel also brings to my notice the decision reported in Sita Ram v. Radha Bai AIR 1968 SC 534 , wherein it is held : "The principle that the courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim in pari delicto potiorest conditio defendentis. But as stated in Arison's 'Principles of the English Law of Contracts' 22nd Ed., p. 343, 'there are exceptional cases in which a man will be relieved of the consequences of an illegal contract into which he has entered cases to which the maxim does not apply. But as stated in Arison's 'Principles of the English Law of Contracts' 22nd Ed., p. 343, 'there are exceptional cases in which a man will be relieved of the consequences of an illegal contract into which he has entered cases to which the maxim does not apply. They fall into three classes: to) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherance of it; (b) where the plaintiff is not in pari delicto with the defendant; (c) where the plaintiff does not have to rely on the illegality to make out his claim." It is Mr. Sen's submission that the respondent need not and does not rely on illegality or fraud as part of his cause of action and hence the respondent is entitled to a decree on title. 13. In answer, Mr. Mohan Kumar submits that in the Rent Control Court the respondent has relied on the terms of Ext. A-1 partnership in support of his original claim and that therefore the illegal or make believe partnership is a part of the respondent's cause of action. I am afraid that I cannot agree with Mr. Mohan Kumar. After the amendment; of the suit as one for recovery of possession on the strength of title, the respondent can maintain the suit without reference to any alleged illegal transaction and it is for the appellant to meet the case on title. It is in that process that the appellant claims to be a tenant and not a partner and unless the tenancy is established the respondent is entitled to the decree for recovery of possession. 14. Mr. Sen submits that the maxim "he is not to be heard who alleges things contradictory to each other" applies in this case to bar the appellant from putting forward a claim that he is a tenant under the respondent. He refers to page 103 of Broom's Legal Maxims and to the following passage: "This elementary rule of logic, which is frequently applied in our courts of justice, will receive occasional illustration in the course of this work. He refers to page 103 of Broom's Legal Maxims and to the following passage: "This elementary rule of logic, which is frequently applied in our courts of justice, will receive occasional illustration in the course of this work. We may for the present observe that it expresses, in other language, the trime saying of Lord Kenyon, that a man shall not be permitted to 'blow hot and cold' with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to the promptings of his private interest." He also cites the various decisions of the High Courts in support of his stand. He submits that the appellant should not be permitted to set up his own wrong doing in misleading the rent control court to contend that he is not really a partner of the respondent but is really his tenant. He also points out that in the light of the decision reported in Union of India v. Anglo Afghan AIR 1988 SC 718 , holding that S.115 of the Evidence Act is not exhaustive, no detriment as such need be proved by the first respondent before he invokes the doctrine of estoppel as against the appellant. In support of this proposition he cites the decision reported in R. S. Vijayan v. Sreenivasa AIR 1956 Mad. 301 . According to him therefore this is a case where the appellant is clearly barred from changing, his stand and from contending that there was no valid partnership between him and the respondent. 15. On an anxious consideration of the relevant aspects it appears to me that it is opposed to public policy to permit the appellant to contend in the present proceeding that the transaction of partnership between him and the respondent is a sham transaction and therefore a mere camouflage to cover up a real subletting, with a view to misleading the rent control authorities. It must be remembered that this transaction was put forward before the Rent Control Court and the object achieved by the appellant by inducing that authority to hold that the appellant was only a partner and not a tenant of the respondent. If parties are permitted to change their stand so as to suit their convenience, it will result in great uncertainty and would defeat the principle of finality attached to an adjudication. If parties are permitted to change their stand so as to suit their convenience, it will result in great uncertainty and would defeat the principle of finality attached to an adjudication. That the rule of res. judicata and estoppel are rules of public policy cannot be in doubt. If that be so the adjudication by the Rent Control Count that the appellant is not a subtenant under the respondent precludes the appellant from putting forward a claim that as a matter of fact he is a tenant under the respondent. I am therefore in agreement with the lower appellate court that the appellant is estopped from contending that he is a tenant under the respondent or that the transaction Ext. A-1 was sham or was not intended to be acted upon. 16. The title of the respondent as a tenant under landlord Appu is established. I have already held that the appellant is estopped from contending that he is a tenant under the respondent. Even assuming that there is no such estoppel this is a case where he has clearly failed to prove any subtenancy under the respondent. Even when he issued Ext. A-9 reply notice dated 10th December 1986 to the notice of dissolution sent by the respondent the appellant did not put forward a contention that he is a tenant under the respondent. He also did not put forward a plea that there was no partnership. This is what is stated in Ext. A-9 reply notice: "My client states that the allegations and claims regarding the alleged dissolution of the firm as suggested in the notice is not proper, -correct or sustainable. The allegations and claims regarding the tenancy right as set out in the notice is also vague besides being incorrect." Even in the suit the appellant filed LA. 600/87 seeking to invoke the arbitration clause in Ext. A-1 agreement. No doubt that application was dismissed and ultimately a revision against that order was preferred. It was held that since he had a case that Ext. A-1 was not acted upon he could not at the same time seek to enforce the arbitration clause in Ext. A-1. In Para.2 of the written statement he pleaded that a subtenancy was created in his favour on 23rd January 1979. It could be noticed that it is the date of Ext. A-1. A-1 was not acted upon he could not at the same time seek to enforce the arbitration clause in Ext. A-1. In Para.2 of the written statement he pleaded that a subtenancy was created in his favour on 23rd January 1979. It could be noticed that it is the date of Ext. A-1. He produced no rent receipts in support of his plea of tenancy under the respondent. In his oral evidence he stated that he has no accounts showing the payment of rent and he had never asked for receipt while paying the rent. He claimed that others have seen him paying the rent to the respondent. But he has not made any attempt to examine anyone else in support of his plea. Thus even on the evidence in this case the appellant has failed to show that he is a tenant under the respondent. At best he is only in permissive occupation. Even on the finding that Ext. A-1 was sham and was not acted upon that would not mean that the appellant has to be held to be a tenant under the respondent straight away. On the evidence in the case I have no hesitation in holding that the appellant has not proved that he is a tenant, under the respondent. If that be so even assuming that he is entitled to resile from the stand adopted by him in R.C.P. 22/81, I am of the view that the claim for eviction by the respondent on the strength of his title cannot be defeated by the appellant in this case. In the result I hold that the respondent is entitled to a decree for recovery of possession as claimed by him. I therefore confirm the decree for recovery of possession passed by the lower appellate court and dismiss this appeal. The memorandum of cross objections filed by the respondent is regarding the disallowing of costs by the lower appellate court. I do not find any reason to interfere with the discretion exercised by the lower appellate court. The memorandum of cross objections is dismissed. Taking note of all the circumstances, I direct the parties to suffer their costs in this court.