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2003 DIGILAW 70 (HP)

HARI CHAND v. BANTI DEVI

2003-04-02

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This second appeal has been preferred by the plaintiffs/appellants (hereafter referred to as the plaintiffs) against the judgment and decree dated 4.9.1999 passed by the learned Additional District Judge, Solan whereby the judgment and decree dated 18.1.1997 passed by the learned Sub Judge, Arki has been set aside. 2. Brief facts leading to the presentation of this appeal are that the plaintiffs instituted a suit against Chunku alias Dutt Ram, predecessor in interest of the respondents/defendants (hereafter referred to as the defendants) for eviction and handing over the vacant possession of one residential house cum shop comprised in Khasra Nos. 49/2 and 423/36, measuring 08 bighas, situate in village Darla, Pargna Parghat, Tehsil Arki. The case of the plaintiffs as made out in the plaint is that in the year 1978 said Chunku requested the plaintiffs to rent out the aforesaid premises to him on annual rent of Rs. 60 and verbally agreed to vacate the same within one year on his having constructed own residential house cum shop. Pursuant to the said agreement, the predecessor in interest of the defendants continued in possession of the said premises and failed to vacate them despite several requests by the plaintiffs. On 3.10.1978 even a rent deed was executed whereby the premises were to be vacated on demand. On failure of the predecessor in interest of the defendants, a notice dated 15.2.1993 was served upon him to hand over the vacant possession but of no avail. Hence the suit. 3. The suit was contested. In the written statement preliminary objections regarding maintainability of the suit, non-joinder of necessary parties, locus standi, lack of material particulars, want of service of notice under Section 106 of the Transfer of Property Act (hereafter referred to as the Act) and the notice allegedly served being invalid, valuation and estoppel by acts and deeds were raised. On merits, exclusive title of the plaintiffs over the premises in suit was denied. It was claimed that the structure in question was independently constructed by the deceased defendant who also carried out major repairs. It has also been claimed by adding an additional plea that the suit is barred by limitation. Other averments in the written statement on merits include the objections which have been taken as preliminary objections. 4. It was claimed that the structure in question was independently constructed by the deceased defendant who also carried out major repairs. It has also been claimed by adding an additional plea that the suit is barred by limitation. Other averments in the written statement on merits include the objections which have been taken as preliminary objections. 4. The plaintiffs filed replication in which the grounds of defence taken in the written statement have been denied and the claim as made out in the plaint, has been reiterated. 5. On the pleadings of the parties, the learned trial Judge framed the following issues : "1. Whether the plaintiffs alone are joint owners in possession of the suit land, as alleged. OPP. 2. Whether the premises in dispute were let out to the defendant in 1978 on payment of Rs. 60 PA. as rent as alleged? OPP. 3. If issue No. 2 is proved in affirmative, whether the tenancy of the defendant was validly terminated through legal and valid notice dated 15.2.1993, as alleged? OPP. 4. Whether the plaintiffs have cause of action? OPD. 5. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD. 6. Whether the suit is not maintainable in its present form? OPD. 7. Whether the suit is bad for non-joinder of necessary parties? OPD. 8. Whether the plaintiffs have no locus standi to sue? OPD. 9. Whether this suit is bad for want of better particulars as alleged. If so, its effect? OPD. 10. Whether the plaintiffs are estopped from filing the present suit by their act and conduct? OPD. 11. Whether the suit is time barred? OPD. 12. Whether the defendant has become owner of the suit property by way of adverse possession, as alleged? OPD. 13. Relief." 6. On the basis of the material brought on record, the learned trial Judge decided issue No. 1 against the plaintiffs whereas issues No. 2, 3 and 4 wire decided in favour of the plaintiffs. Issues No. 5, 6, 7, 8, 9, 10 and 11 were decided against the defendants and issue No. 12 was held as redundant. As a consequence, the suit of the plaintiff was decreed. 7. Being aggrieved, the defendants preferred an appeal which was heard and allowed by the learned Additional District Judge, Solan by the impugned judgment and the suit of the plaintiffs was dismissed. As a consequence, the suit of the plaintiff was decreed. 7. Being aggrieved, the defendants preferred an appeal which was heard and allowed by the learned Additional District Judge, Solan by the impugned judgment and the suit of the plaintiffs was dismissed. Hence this appeal by the plaintiffs. 8. This appeal had been admitted on the following substantial questions of law:— "1. Whether the 1st Appellate Court below has rightly come to the conclusion that the tenancy of the respondents predecessor-in-interest was not validly terminated and the notice issued under Section 106 of the Transfer of Property Act was not in accordance with law? 2. Whether the notice under Section 106 of the Transfer of Property Act was necessary for terminating the tenancy of the predecessor-in-interest of the respondents in view of the facts that the tenancy has come to an end by efflux of time and the predecessor-in-interest of the respondent was in occupation of the premises as a tenant by holding over?" 9. I have heard the learned Counsel for the parties and have also gone through the records. Substantial Questions No. 1 and 2 10. Since both these questions are interconnected, therefore, are taken up together for decision. 11. It was contended by the learned Counsel for the plaintiffs that the tenancy in question which was for a term terminating with the time when the suit property was required by the plaintiffs for their use, stood determined by efflux of time and (ii) forfeiture by denial of the title of the plaintiffs as owners and setting up such title by the defendants in themselves. Therefore, primarily no notice determining the tenancy was required to be served on the defendants and in any case service of even a defective notice was sufficient to determine the tenancy whereas due notice Ext. PW-l/A was served on them. Therefore, the learned Counsel for the plaintiffs contended that the suit could not be dismissed for want of service of notice or on the ground that the notice was defective. 12. On the other hand the learned Counsel for the defendants had contended that the plea of forfeiture as sought to be raised by the plaintiffs, has neither been pleaded as a ground of eviction nor there is any issue regarding the alleged forfeiture. Therefore, the plaintiffs cannot be permitted to raise the plea for the first time in this appeal. On the other hand the learned Counsel for the defendants had contended that the plea of forfeiture as sought to be raised by the plaintiffs, has neither been pleaded as a ground of eviction nor there is any issue regarding the alleged forfeiture. Therefore, the plaintiffs cannot be permitted to raise the plea for the first time in this appeal. It was further contended that the notice Ext. PW-l/A is invalid and illegal and rightly so held by the lower Appellate Court. Therefore, the impugned judgment and decree do not call for any interference. 13. Relevant part of Section 111 of the Act which deals with determination of lease by efflux of time or forfeiture, reads as under:— "111. Determination of lease.—A lease of immovable property, determines— (a) by efflux of time limited thereby; (b) to (f) (g) by forfeiture, that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease." 14. It is evident from a bare reading of the above provisions that a lease for a definite period will expire with the expiry of the time thereby limited. The question whether a lease has or has not expired by efflux of time, is apparently a mixed question of law and fact. Therefore,, when eviction of a lessee is sought on the ground of determination of lease by efflux of time, the party seeking eviction must plead it if disputed by the other party and the plea is required to be proved in accordance with law. In the case in hand, it is not the pleaded case of the plaintiffs that the lease in question had expired by efflux of time and stood determined within the scope of Section 111 (a) supra. In the case in hand, it is not the pleaded case of the plaintiffs that the lease in question had expired by efflux of time and stood determined within the scope of Section 111 (a) supra. This plea had not been raised either before the trial Court or the lower appellate Court, therefore, being a mixed question of law and facts, cannot be permitted to be raised for the first time in this appeal. 15. The right of forfeiture flows from the existence of a lease and relationship of lessor and lessee as contemplated under Section 105 of the Act. It is implicit in Section 111(g) supra that in the case of a lease in existence, the lessor has a right to determine the lease if (i) the lessee commits breach of the condition of the lease, or (ii) renounces his character as such by setting up a title in the third person or himself or (iii) the lessee has been adjudged insolvent. However, happening of any of these events ipso facto will not put an end to the lease but will only expose the lessee to the risk of forfeiting the lease and the lessor gets a right if he so elects to determine the lease. Thus, disclaimer, i.e. denial of the title of the lessor is ground for determination of tenancy and is based on justice, equity and good conscience. The disclaimer, however, must be a direct repudiation of the relationship of lessor and lessee or a distinct claim which by necessary implications repudiates such relationship. 16. In the case in hand, the plea of forfeiture by disclaimer, i.e. by denying the title of the plaintiffs and setting up title in themselves by the defendants has also not been raised in the plaint. However, there is no allegation that such a plea was available to the plaintiffs before the institution of the suit. In the written statement the defendants took the pleas (i) that the premises in question was independently constructed by their predecessor-in-interest and thereafter had been carrying major repairs thereof and (ii) that the defendants have become owners of the premises in question by adverse possession. Thus, they denied the title of the plaintiffs in their written statement. An issue (issue No. 12) was framed on their plea of acquisition of title by adverse possession though subsequently it was not pressed. Thus, they denied the title of the plaintiffs in their written statement. An issue (issue No. 12) was framed on their plea of acquisition of title by adverse possession though subsequently it was not pressed. Defendant Anil Gupta (DW-4) examined by the defendants denied the title of the plaintiffs and claimed title in the defendants. The denial of the title of plaintiffs by claiming title by adverse possession by the defendants in themselves is, thus, specific and clear and amounts to disclaimer. (See : Rachavva v. Kariyappa Siddappa, AIR 1981 Karnataka 76). The question, therefore, arises as to whether the plea of disclaimer raised during the pendency of the suit could be taken advantage of by the plaintiffs in the suit itself or they could raise "disclaimer by the defendants" as a ground for eviction in a fresh suit. 17. In Sada Ram and others v. Gajjan Shiama, AIR 1970 Punjab and Haryana 511, a Division Bench held as under:— "6. The binding nature of the two judgments referred to above has been taken away by the judgment of their Lordships of the Supreme Court in Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur, AIR 1965 SC 1923, wherein it was held— "No doubt the provisions of the Transfer of Property Act were not, it is stated in terms, applicable to the area in question, but it has been laid down that the principles embodied in Section 111(g) are equally applicable to tenancies to which the Act does not apply on the ground of the same being in consonance with justice, equity and good conscience." In paragraph 18 of the report, their Lordships further observed— "We consider the law to be that unless there is a disclaimer or renunciation in clear and unequivocal terms, whether the same be in a pleading or in other documents, no forfeiture is incurred." From this observation it is clear that a disclaimer or renunciation in clear and unequivocal terms, in the written statement to the suit can also result in the forfeiture of the tenancy. The argument of the learned Counsel for the appellants that the denial of the tenancy in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord, does not appeal to us. The argument of the learned Counsel for the appellants that the denial of the tenancy in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord, does not appeal to us. It will lead to unnecessary multiplicity of legal proceedings if the landlord is obliged to file a second suit for ejectment of the tenant on the ground of forefeiture entailed by his denial of his character as a tenant in the written statement and not allowed to avail of that plea in the suit in which the written statement has been filed especially when it has been pleaded in the plaint that the defendant had denied his character as a tenant of the plaintiff orally before the institution of the suit as was pleaded in the two suits out of which the present appeals have arisen." 18. In Majati Subbarao v. P.V.K. Krishna Rao (deceased) by Lrs., AIR 1989 SC 2187, held as under:— "5. It was argued by learned Counsel for the appellant that even accepting that there was a denial of title by the appellant and the result would be only that the respondent landlord became entitled to forfeit the lease and in order to be a ground for eviction in a suit that forefeiture would have to precede the suit or petition for eviction. It was submitted by him that it was not open to a landlord to take advantage of a denial of title by the tenant in the very proceedings for eviction in the course of which the denial was made. The denial must be enterior to the eviction proceedings. In support of this argument learned Counsel placed reliance on the decision in Maharaja of jeypore v. Rukmani Pattamahdevi, 46 Ind App 109 : AIR 1919 PC 1. In our view, this argument also does not stand scrutiny. In V. Dhanapal Chettiar v. Yesodai Ammal, (1980) 1 SCR 334 : AIR 1979 SC 1745, a Constitution Bench of this Court comprising seven learned Judges held that in the matter of determination of tenancy the State Rent Acts do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the position under the Transfer of Property Act. The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of the Rent Acts. Even after the termination of the contractual tenancy the landlord under the definitions of landlord and tenant contained in the Rent Acts remains a landlord and a tenant remains a tenant because of the express provision made in the enactments that a tenant means a person continuing in possession after the termination of the tenancy in his favour. Yet another important feature of the Rent Acts is that either by way of a non-obstante clause or by necessary implication these enactments have done away with the law contained in Section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee. The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises determination of the lease is necessary because during the continuance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfillment of the conditions laid down in the relevant sections. He cannot recover possession merely by determining the tenancy. Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy In the case before us, we find that the denial of landlords title by the tenant has been expressly made a ground for eviction under Section 10(2)(vi) of the A.P. Rent Act which we have already set out earlier. In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent Act is knocked out. In our opinion, the argument of learned Counsel for the appellant must, therefore, be rejected. In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent Act is knocked out. In our opinion, the argument of learned Counsel for the appellant must, therefore, be rejected. We find, on the other hand, that number of High Courts have taken the view that even a denial of the landlords title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed (See : Sada Ram v. Gajjan Shiama, AIR 1970 Punjab and Haryana 511; Shiv Parshad v. Smt. Shila Rani, AIR 1974 Himachal Pradesh 22 and Machavaram Venkata Narayana Rao v. Sarvepalli Narayana Rao Sarada, (1978) 1 Ren CJ 368 : AIR 1978 NOC160 (Andhra Pradesh). As observed by the Punjab and Haryana High Court to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenants denial of his character as a tenant in the written statement". 19. In view of the above position in law, the lessor can take advantage of the plea of disclaimer raised by the lessee during pendency of the suit for eviction. Therefore, the plaintiffs can take advantage of the plea of forfeiture because of denial of their title by the defendants in the pleadings as also in the evidence. 20. The next question, thus, arises as to whether in the facts and circumstances of the case as set out herein above, want of notice determining the tenancy or service of a defenctive notice will be fatal to the suit. 21. In Batakala Budhia Patro v. Durgasi Dandasi Patro and others, AIR 1978 Orissa 103, it was held as under:— "10. It is also to be noted in this case that defendant No. 1 admittedly executed the sale deed Ext. 21. In Batakala Budhia Patro v. Durgasi Dandasi Patro and others, AIR 1978 Orissa 103, it was held as under:— "10. It is also to be noted in this case that defendant No. 1 admittedly executed the sale deed Ext. B in respect of the suit house in favour of defendant No. 2 on 5.6.1970, i.e. on a date prior to 6.1.1971 when this suit was instituted by the plaintiff. In Ext. B defendant No. 1 describes himself as the owner of the property having inherited the same from his father. Therefore, defendant No. 1 by executing the sale deed tried to set up a title to the suit house to himself and renounced his character as a lessee of the said house under the plaintiff. So the lessee was exposed to the risk of forefeiting his lease as per Section 111(g) (2) T.P. Act. That fact and the notice to quit (Ext. 3) by the lessor amounted to a forfeiture, as the two factors required under Section 111(g) of the T.P. Act were fulfilled. So, even if the notice to quit for the sake of argument is not found to be a valid notice under Section 106, T.P. Act, defendant No. 1 would come within the mischief of Section 111(g) of the T.P. Act, and institution of this suit on that score cannot be questioned." 22. In Shiv Parshad v. Smt, Shila Rani, AIR 1974 HP 22, this Court held as under: "4. The submission of the learned Counsel for the petitioner is that he had taken the premises from a third person some 15 years back and that he did not charge any rent, etc. from him, and in the written statement filed by him to the eviction petition he categorically denied the relationship of landlord/landlady and tenant between them are also denied in unequivocal words the payment of any rent. In his statement as a witness, however, he has tried to explain that the property belonged to a man, who was a lawyer and was residing at Delhi. He had given the house to him some fifteen years back and the same was in a dilapidated condition and he (petitioner) renovated the same. He is living in that house since then. In his further statement he also took up the same stand. He had given the house to him some fifteen years back and the same was in a dilapidated condition and he (petitioner) renovated the same. He is living in that house since then. In his further statement he also took up the same stand. On the denial by him about the relationship of landlord and tenant there was a specific issue framed by the Court and that would amply demonstrate that there was a clear denial of the title of the landlady by the tenant. No doubt the tenant set up a title in a third person but it is clear that he did not admit Smt. Shila Rani as his landlady. Therefore, under Section 111(g) of Transfer of Property Act this denial which is quite unequivocal and unambiguous and to the knowledge of the landlady would entail forfeiture of his tenancy. Merely that he did not pay rent to the landlady would however not be sufficient to conclude that there was a denial of the title of the landlady by the tenant. But the plea set up by the tenant in his written statement is quite unambiguous which leaves no manner of doubt to hold that he has renounced or repudiated the title of the landlady. In view of this fact this Supreme Court authority is clearly distinguishable and will have no application to the present case. The Appellate Authority relied on Sada Rams case (1970) 72 Pun LR 223 : AIR 1970 Punj 511 (supra), which according to the learned Counsel for the petitioner is contrary to the Supreme Court decision. I have perused this authority and I am not in agreement with the submission made by the petitioners learned Counsel. This authority is fully applicable to the facts of the present case. In that case also there was a denial of the relationship of landlord and tenant by the tenant in his written statement to a suit for ejectment and the Court held that a year to year tenancy or a tenancy at will gets determined by such a denial or renunciation of title by the tenant. Therefore, in view of the different facts of the case from the one as there were in the 1965 Supreme Court, I am of the view that the tenancy got determined. 5. Therefore, in view of the different facts of the case from the one as there were in the 1965 Supreme Court, I am of the view that the tenancy got determined. 5. Now the further question that arises is whether in such a case a notice under Section 106 of the Transfer of Property Act was necessary to be issued to the tenant by the landlady for determination of the tenancy. My answer to this question is that in view of the fact that there was denial of the relationship of the landlady and the tenant between the two there was hardly any necessity for the landlady to issue any notice under Section 106 of the Transfer of Property Act for the determination of the tenancy. The reading of Section 106 of Transfer of Property Act p re-sup-, poses the existence of relationship of landlord and tenant between the parties before a tenancy can be determined by issue of a notice under the Act. The repudiation of the title of the landlady entailed forfeiture of the tenancy as is also obvious from Section 111(g) of the Transfer of Property Act. It is also apparent that in the case of statutory tenancy notice to terminate the tenancy is not required as would be evident from Roop Narain v. Smt. Krishna Devi Bagadia, 1969 Delhi LT 127 and Bhaiya Ram Hargo Lal v. Mahavir Parshad Murari Lal, AIR 1969 Punj 110 (FB). The submission made by the learned Counsel for the petitioner is that the landlady had not taken up such a plea that the tenancy was a statutory one. There is no need to discuss this point because there is a denial of the title of the landlady by the tenant and, therefore, I am of the view that the non-issue of a notice as contemplated under Section 106 did not in any way prove fatal to the case of the landlady so as to dismiss her petition by the Rent Controller as also by the Appellate Authority." 23. In view of the above discussion and position in law, the suit of the plaintiffs whose title had been denied by the defendants by setting up a title in themselves in the written statement as well as in evidence, could not be dismissed for want of notice or defect in the notice. Therefore, impugned judgment and decree cannot be sustained. 24. Therefore, impugned judgment and decree cannot be sustained. 24. As a result, this appeal is allowed. The impugned judgment and decree are set aside and the suit of the plaintiffs for eviction is decreed. There is, however, no orders as to costs.