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Rajasthan High Court · body

2004 DIGILAW 833 (RAJ)

Rameshwar through Lrs. v. Shyampati

2004-05-24

A.C.GOYAL

body2004
Honble GOYAL, J.–This is the second appeal by the legal heirs of the defendant-tenant Shri Rameshwar against the judgment and decree dated 18.12.2002 whereby learned Additional District Judge, Jhunjhunu while setting aside the judgment and decree of learned Civil Judge (Senior Division), Nawalgarh dismissing the suit on 10.9.1997, decreed the plaintiffs suit for eviction. (2). The relevant facts in brief are that the plaintiffs-Ladhu Ram and his son Nand Kishore filed a civil suit for arrears of rent and eviction in November, 1987 against the defendant-tenant Rameshwar with the averments that suit shop situated in Nawalgarh Town was let-out to the defendant in Samvat 2037 (year 1980) on monthly rent of Rs. 20/-. The eviction was sought on the grounds of default in payment of rent and material alteration. (3). Vide written statement submitted in January, 1988 the defendant having admitted the tenancy since last 30 years denied the grounds of eviction. It was pleaded that the plaintiffs are not the owners of the suit shop. Rather Smt. Durga Devi and after her death her son Chaturbhuj is the owner of the shop. (4). Vide amended plaint filed in May, 1992 additional ground of eviction on account of denial of title was taken. Vide amended written statement it was pleaded that since the plaintiffs have not produced the document of title and the defendant has got the proof of the title of the shop in other person, the plaintiffs have no right to file the present suit for eviction. (5). On the basis of the pleadings, the Trial Court framed as many as 8 issues. Evidence of the parties was recorded. The Trial Court vide judgment dated 10.9.1997 held that the defendant committed default in payment of rent but being the first default decree of eviction on this ground cannot be passed. Issue No. 2 of material alteration and issue No. 3 of denial of title were decided against the plaintiffs, hence the suit was dismissed. The first appeal preferred by the plaintiffs was allowed vide impugned judgment. It was held that since the defendant-tenant has denied the title of the plaintiffs, decree of eviction was passed. (6). During the pendency of the suit, plaintiff Ladhu Ram expired and during the pendency of the second appeal the defendant-tenant Shri Rameshwar died, hence their legal representatives were brought on record. (7). I have heard learned counsel for the parties. It was held that since the defendant-tenant has denied the title of the plaintiffs, decree of eviction was passed. (6). During the pendency of the suit, plaintiff Ladhu Ram expired and during the pendency of the second appeal the defendant-tenant Shri Rameshwar died, hence their legal representatives were brought on record. (7). I have heard learned counsel for the parties. Section 3(iii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (in short the Act) defines the term `landlord as under:- (iii) ``landlord means any persons who for the time being is receiving or is entitled to receive the rent of any premises whether on his own account or as an agent, trustee, guardian or receiver or any other person or who would so receive or be entitled to receive the rent if the premises were let to a tenant; it includes a tenant in relation to a sub-tenant. (8). Section 13(1)(f) of the Act is as under:- Section 13 Eviction of tenants:-(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, make any order, in favour of a landlord, whether in execution of a decree or otherwise, eviction the tenant so long as he is ready and wiling to pay rent therefore to the full extent allowable by this Act, unless it is satisfied- (f) that the tenant has renounced his character as such or denied the title of the landlord and the landlord and the latter has not waived his right or condoned the conduct of the tenant; (9). It is not in dispute that the defendant did not renounce his character as tenant. Rather he admitted in the written statement that he is the tenant of the plaintiffs and he has paid and in paying the rent to them. The relevant question is whether the defendant has denied the title of the landlords/plaintiffs and the landlords have not waived their right or condoned the conduct of the defendant-tenant? (10). In view of the definition of the ``landlord the submission of learned counsel for the appellants is correct that the landlord should not necessarily be the owner of the suit premises and the persons who for the time being are receiving or are entitled to receive the rent on his own account or as an agent of the owner would be the landlords of the tenant under the Act. According to learned counsel for the appellants, the denial of the title of the plaintiffs in the instant case does not attract the provisions of Section 13(1) (f) of the Act as neither the defendant has renounced his character as such, nor he has set up the title in himself, rather in reply of para 1 of the plaint it was simply stated in written statement that the owner of the shop was Smt. Durga Devi and now is her son Chaturbhuj. Reliance is placed upon Sheela and Others vs. Firm Prahlad Rai Prem Prakash (1), wherein while dealing with the provisions of Section 12(1) (c) of M.P. Accommodation Control Act, 1961 the Honble Supreme Court held in paras No. 11 & 12 as under:- ``11. What is denial of the landlords title or disclaimer of tenancy and what impact it has on the landlords right to evict and tenants liability for eviction under the Act? 12. It is pertinent to note that denial of title of the landlord or disclaimer of tenancy is not as such set out as a ground on which tenant may be evicted under Sec. 12 of the Act. Section 12(1)(c) provides inter alia that a tenant incurs liability for eviction if the tenant or any person residing with him has done any act which is likely to affect adversely and substantially the interest of the landlord therein. A tenants denial of the landlords title and/or disclaimer of tenancy has been held to be an act which is likely to affect adversely and substantially the interest of the landlord. In a series of decisions, the High Court of Madhya Pradesh has consistently taken this view and we see no reason to make a departure therefrom. It has to be seen how and in what manner a denial of title or disclaimer by tenant would attract applicability of Sec. 12(1) (c) of the Act? In our opinion, the denial or disclaimer to be relevant for the purpose of Sec. 12(1) (c) should take colour from Sec. 116 of the Evidence Act and Sec. 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. In our opinion, the denial or disclaimer to be relevant for the purpose of Sec. 12(1) (c) should take colour from Sec. 116 of the Evidence Act and Sec. 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. 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. This estoppel so long as it binds the tenant excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Sec. 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Sec. 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule. Clause (g) of Sec. 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. The provision contemplates two fact situations which entail the lessee having renounced his character as such and they are: (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself. In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord. (11). In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord. (11). It was contended that the definition of the landlord in the M.P. Act as well as in the Rajasthan Act is similar and thus in view of this judgment the denial of the title of the plaintiffs in the instant case does not amount to denial under Section 13(1)(f) of the Act. The said submission seems to be devoid of merit. From the beginning till date the defendant-tenant has come with a specific plea of making a denial of the title of the plaintiffs regarding the suit shop. No doubt the defendant did not claim his title but he set up title of the shop in a third person i.e. Smt. Durga Devi and her son Chaturbhuj. It amounts to denial of title as envisaged under the Act and this conclusion finds support from this judgment of Honble Supreme Court. On the same reasonings the other judgment relied upon on behalf of the appellants-Kundan Mal vs. Gurudutta (2), is not applicable in favour of the appellants. In Kundan Mans case (supra), the defendant-tenant having admitted himself to be the tenant did not claim title in himself and the averments made by the respondent- tenant cannot be construed to clearly denied title of the landlord in clear terms. While in the instant case, the defendant vide written statement clearly denied the title of the plaintiffs and he set up the title of the suit shop in a third person i.e. Smt. Durga Devi and her son Chaturbhuj. While admitting himself to be the tenant of the plaintiffs, this plea of setting up title of the suit shop in a third person clearly amounts to denial of title as provided under Section 13(1)(f) of the Act. (12). Learned counsel for the appellants next submitted that it was the case of the plaintiff that they are owners of the shop and this fact was denied by the defendant and a look at the evidence of the parties clearly goes to show that the plaintiffs were not the owners of the suit shop. He referred the statement of PW1-the plaintiff Nand Kishore who admitted that Smt. Durga Devi was his grand-mother and Chaturbhuj is his uncle. He referred the statement of PW1-the plaintiff Nand Kishore who admitted that Smt. Durga Devi was his grand-mother and Chaturbhuj is his uncle. This shop was given to Smt. Durga Devi for her maintenance and rent was paid to her till she was alive in 1972. They (plaintiffs) paid a sum of Rs. 850/- as expenses incurred by Smt. Durga Devi and thereupon this shop was handed over to them vide Ex.1 which bears the signatures of Chaturbhuj. According to learned counsel for the appellants since the plaintiffs claimed title vide Ex.1, it was not admissible in evidence being unstamped and unregistered. Per contra it was contended by learned counsel for the plaintiffs-respondents that the plaintiffs never based their title on Ex.1 and further the question of title of the premises is a suit for rent and eviction is not relevant and since the defendant denied the title of the plaintiffs/landlords the First Appellate Court rightly decreed the suit and no substantial question of law arises in this second appeal. He placed reliance upon Sheo Narain Alias Saon vs. Janki Prasad (dead) through L.Rs. Radhey Shyam & Ors. (3), wherein it was held that decree of eviction may be passed on the ground of denial of title if such denial is made even in appeal. In Satya Narain vs. Bajrang Lal (4), it was held that it is enough for the landlord to show that the tenant has denied his title and he has not waived his right or condoned the conduct of the tenant. (13). In view of the entire discussion made hereinabove, I find no perversity in the impugned judgment delivered in first appeal. No substantial question of law arises in this second appeal. (14). Consequently, this second appeal alongwith stay application is dismissed at the admission stage.