Shri Kishan v. Dayal Das Chawla — 1997 DIGILAW 827 (RAJ)

Honble MADAN, J. – This appeal has been preferred by the appellant/tenant to this Court against the Judgment and Decree dated 3.2.1997 passed by the Appellate Court of learned Additional District Judge No. 4, Kota, in Civil Regular Appeal No. 37/1996, whereby the appeal preferred by the appellant against the order of eviction vide Judgment and Decree dated 9.4.1986 passed by the Judicial Magistrate First Class, Kota (North) in case No. 123/1977, decreeing the suit of the plaintiff-respondent for eviction against the defendant-appellant was upheld. (2). The facts which are relevant for deciding the controversy between the parties briefly stated are that on 11.3.1977, the plaintiff filed a suit for eviction and arrears of rent against the appellant in the trial Court of Munsiff-cum-Judicial Magis- trate, Ist Class, Kota (North), with the averment that the appellant was a tenant of the plaintiff in one of the rooms of his residential house situated in Mohalla Kalpariya, Nayapura, Kota on token rent of Rs. 5/- per month. (3). The plaintiff-respondent sought eviction of the defendant- appellant on two grounds i.e. - (i) Default of payment of rent since 17.9.1975 and, (ii ) denial of title of the plaintiff/owner of the suit premises and on these two grounds the plaintiff had become entitled to evict the defendant-appellant from the disputed premises in question and had further averred in the plaint that he purchased the disputed house on 17.9.1975 from one Shri Hasmat Rai and he was the second owner of the property and he had given due intimation to the appellant-tenant that hence-forth he will be the owner of the property and that by virtue of attornment he become a tenant under him and hence-forth he should pay the rent directly to the plaintiff-landlord. (4). The Appellant has further contended that he had contested the plaintiffs case before the trial Court by filing his written statement in defence on 25.7.1977. The legal notice terminating the tenancy of the appellant prior to the filing of the eviction petition has not been disputed. (4). The Appellant has further contended that he had contested the plaintiffs case before the trial Court by filing his written statement in defence on 25.7.1977. The legal notice terminating the tenancy of the appellant prior to the filing of the eviction petition has not been disputed. By way of additional pleas taken in the written statement it has been contended by the appellant that no information was given to the tenant by his former Landlords namely; Karam Ilahi and Abdul Gafoor, regarding sale of the disputed house to the respondent nor t he alleged sale was attorned and as such it was submitted that it was enjoined upon the appellant/defendant under the law pending the hearing and disposal of the eviction suit to pay the rent of the disputed premises to the plaintiff. (5). On the pleadings of the parties, the trial Court framed six issues. In support of the said issues the burden of which was heavily on the plaintiff and which he had failed to discharge as per the concurrent findings of both the Courts below. The plaintiff had examined four witnesses in his defence besides himself. In rebuttal the defendant also examined himself as DW 1 and the trial Court after hearing both the parties vide its order dated 9.4.1986 decreed the plaintiffs suit for eviction on both the grounds of default as well as of denial of title. Admittedly the defendant-appellant as per the findings recorded by the trial Court which have been confirmed in appeal by the First Appellate Court was held to be a defaulter for having not deposited the arrears of rent for the period in dispute i.e. 17.9.1975 to 11.3.1977. The appellant-tenant was in default towards the payment of arrears of rent amounting to Rs. 147.30/- @ Rs. 5/- per month to the respondent-landlord. In his deposition recorded by the trial Court, the appellant has clearly admitted the default in payment of rent for the period in dispute as against the respondent/landlord and the learned counsel for the appellant has not successfully assailed the concurrent findings recorded by the Courts below. This fact is also borne out from the record. (6). Prima-facie, I am for the considered opinion that a person who is not in a position to pay a paltry sum of Rs. This fact is also borne out from the record. (6). Prima-facie, I am for the considered opinion that a person who is not in a position to pay a paltry sum of Rs. 5/- per month towards rent to his landlord has no legal right to stay in the premises and particularly when he has been a habitual defaulter in payment of rent also to the previous Landlords. I am further of the view that the plea of denial of title is not open or admissible to the tenant to be raised under the circumsances because it is very easy for the habitual defaulters like the plaintiff herein to enjoy the tenancy in the suit premises in a gratitious manner and when the question comes regarding payment of arrears of rent to the landlord then he has advanced the false and vexatious pleas by putting up a sham and illusory defence that since he had challenged the title of the landlord regarding his owner- ship of the suit premises in question he has a legal right to continue to occupy the suit premises. This fact is also borne out from para 2-B the title of the respondent landlord and that too after his attornment as a tenant by the respondent- landlord. I am further of the view that once the tenant-appellant had acknowledged the receipt of the notice, terminating his tenancy on the question of default in payment of arrears of rent, it was not open to him to advance the plea of denial of title as apparently it would be a counter-blast to the ownership rights of the Landlord and it is not at all a plausible defence to be taken in such circumstances. I am further of the view that present scarcity of the accommodation which is being felt by the tenants at large in the Megha cities like Jaipur, is basically for the reason that no bona fide landlord would like to take the risk of letting out his premises to such type of unscrupulous tenants who take the premises on rent and thereafter they challenge the title of the landlord by advancing such false and vexatious pleas. I am fortified in my observations from the Judgment of the Apex Court in the matterof Kundan Lal vs. Gurudatta (1), wherein it was held by the Apex Court that the prin- ciple of forfeiture or disclamour is founded on the rule that a man cannot reprobate at approbate and one and the same time. On application of the said rule to the instant case it was held by the Apex Court that the denial had to be in clear and unequivocal terms. Applying the ratio of the aforesaid decision of the Apex Court, I am of the view that in view of the clear and unequivocal denial of title of the res- pondent by the appellant, a ground for eviction of the appellant from the tenanted premises u/s. 13(1) (a) & (f) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, has been clearly made out and in view of Sec. 116 of the Indian Evidence Act, 1872 which prohibits the tenant to challenge the title of the ownereither after due execution of the lease-deed or by virtue of oral tenancy if established on the record, it was not open to the appellant-tenant to raise any such dispute on the question of title or ownership of the plaintiff-respondent and the decree for eviction of the appellant has rightly been passed by the trial Court and which has been confirmed in appeal by the First Appellate Court. I am further of the opinion that the conduct of the defendant appellant has been such that it has resulted in forfeiture of his tenancy in respect of the suit premises in favour of the respondent and it was not open to him to raise any such dispute much less a bona fide dispute after his attornment as a tenant by the plaintiff-landlord. I am further of the view that Sec. 116 of the Indian Evidence Act, operates as estoppel against the tenant tochallenge the title of the owner either after due execution of the lease-deed or where the tenancy is oral between the parties on its attornment by the landlord. I have fortified in my observations from the Judgment of this Court in the matter of Karachi Wine Store & Ors. vs. Shri Mohd. Rafiq & Anr. I have fortified in my observations from the Judgment of this Court in the matter of Karachi Wine Store & Ors. vs. Shri Mohd. Rafiq & Anr. (2), wherein similar controversy had arisen for consideration for this Court and this Court had declined to interfere with the concurrent findings of fact recorded by both the Courts below in Second Appeal preferred by the appellant-tenant. (7). As a result of above discussion, I find no force in this appeal and the same is accordingly, dismissed. As a result, the Judgment and Decree darted 3.2.1997 passed by the learned Addl. District Judge No. 4, Kota in Civil Regular Appeal No. 37/1996, confirming the Judgment and decree dated 9.4.1986 passed by Munsif and Judicial Magistrate, Ist Class, Kota (North) in case No. 123/77 is confirmed. (8). During the course of hearing learned counsel for the appellant has stated that the appellant is ready to vacate and hand-over the vacant and peaceful possession of the demised premises to the respondent-landlord, if some reasona- ble time is granted to him. I accordingly direct the appellant to hand-over the vacant and peaceful possession of the demised premises to the respondent landlord subject to his furnishing a specific undertaking in this regard within four weeks from today and in case he fails to furnish the undertaking within the aforesaid period, the decree of eviction passed by the Courts below and which has also been confirmed by this Court in present appeal shall become executable forthwith. However, I deem it apropriate to grant six months time to the appellant to hand over the vacant and peaceful possession of the demised premises to the respondent-landlord subject to his furnishing the above undertaking to this Court within a period of four weeks. The summoned record be sent back immediately. There will be no order as to costs.