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Madhya Pradesh High Court · body

2005 DIGILAW 618 (MP)

Mahila Samiti v. Hola Ram Sindhi

2005-05-13

A.M.NAIK

body2005
ORDER 1. This appeal is directed against the remand order dated 12.7.2004 passed by Smt. Kanaklata Sonkar, III Additional District Judge, Satna in Civil Appeal No. 144- A/2003 remanding thereby the matter to the trial Court for fresh adjudication in the light of the directions contained in paragraph 20 of the remand order. 2. Facts relevant for the purpose of present appeal are that the plaintiff respondent instituted Civil Suit No. 104-A/2002 against the defendant appellant for eviction from the suit premises which was decreed by the Court of III Civil Judge, Class-I, Satna on 17.4.2003 in favour of the plaintiff and the decree of ejectment was granted in favour of the plaintiff respondent with rent/mesne profits @ Rs. 30/- per month till the actual ejectment. The defendant preferred Civil Appeal No. 144-Al2003. His main contention relevant for the appeal was that a land admeasuring 35682 sq. ft. was allotted by the Government of Madhya Pradesh to the plaintiff through Nazul Department on permanent lease. The plaintiff/society has constructed 20 shops out of which the suit shop was let out to the defendant's father in the year 1962 on rent @ Rs. 30 per month. The allotment letter (patta) was not produced by the plaintiff society. The defendant contended before the lower appellate Court that the total construction of 20 shops is situated on merely 2580 sq. ft. and the learned trial Judge ought to have determined that whether the shops are constructed on the land allotted to the plaintiff because the plaintiff could succeed only on the strength of proof about his title in respect of the suit shop. The learned lower appellate Court accepted the contention of the defendant and directed the plaintiff-appellant to produce the lease deed before the trial Court and the order of the Commissioner, Rewa Division in respect to the leased land. In the light of this direction the matter was remanded back to the trial Court for deciding it afresh after giving an opportunity of evidence to both the parties. The main submissions of the learned Senior Advocate for the appellant is that in view of the nature of the suit and the governing position of law, no remand was warranted and the learned lower appellate Court ought to have decided itself the appeal on merits. The main submissions of the learned Senior Advocate for the appellant is that in view of the nature of the suit and the governing position of law, no remand was warranted and the learned lower appellate Court ought to have decided itself the appeal on merits. He drew the attention of this Court to the fact that tenancy is already admitted by the defendant-respondent and the rent was also used to be paid by him to the plaintiff-appellant. He drew the attention to paragraph 11 of the impugned remand order. Shri Prabhakar Rusia, learned counsel for the appellant strenuously argued that the defendant tenant is estopped from denying the title of the plaintiff-appellant and tenancy having been admitted, the plea dealt with by the learned lower appellate Judge for making a remand was not available. 3. Shri Sanjay Agrawal, learned counsel for the respondent supported the impugned order and submitted that no interference is warranted in the impugned order. 4. I have considered the arguments of both the counsels. Admittedly, the suit is for ejectment of the defendant from shop No. 16 which is stated to be owned by the plaintiff society. The defendant in paragraph 3 of the written statement has admitted that his father was a tenant of the plaintiff society in the suit shop on rent @ Rs. 30 per month and the defendant being his son became the tenant of the plaintiff society after the death of his father. The defendant has further admitted that he used to pay rent by personal tender as well as by Money Order to the plaintiff. 5. The learned Senior Advocate appearing for the appellant submitted that in view of the admissions about tenancy, the defendant/tenant is estopped from disputing the title and the lower appellate Court has committed an illegality in remanding the matter to the learned trial Judge on the basis of the plea not available to the tenant. The learned Senior Advocate relied upon Anar Devi v. Nathu Ram, [ 1994 JLJ 486 = (1994) 4 SCC 250 ], Nawah Saheb v. Firoz Ahmed, [2002 (5) MPLJ 438] and Zehra Bai v. Jagmohan Arora, [2000 (II) MPWN 142]. The learned Senior Advocate relied upon Anar Devi v. Nathu Ram, [ 1994 JLJ 486 = (1994) 4 SCC 250 ], Nawah Saheb v. Firoz Ahmed, [2002 (5) MPLJ 438] and Zehra Bai v. Jagmohan Arora, [2000 (II) MPWN 142]. While countering the submissions of the learned counsels, Shri Sanjay Agrawal, counsel for the respondent also submitted that the suit shop was constructed with the aid of the money belonging to the defendant and plaintiff is not the owner of the suit shop. He submitted that the remand order is a well reasoned order requiring no interference. He relied upon rulings reported as 1970 MPLJ 50 = 1970 JLJ 20 , AIR 1977 Patna 247 and AIR 1970 Madras 396. The Division Bench of this Court in Ramjilal Tiwari v. Vijay Kumar and others, [ 1970 MPLJ 50 = 1970 JLJ 20 ] has clearly held that a tenant cannot deny the title of landlord when he is inducted into the possession of the tenanted premises by the landlord. In the present case the defendant tenant claims through his father who was inducted into the possession of the suit shop in the year 1962 as has been admitted in paragraph 3 of the written statement. The rulings cited by the learned counsel for the respondent do not need consideration because the matter has been settled by the apex Court as discussed hereinafter. 6. The learned lower appellate Judge has erred in ignoring that the relationship between the parties to the suit is that of landlord and tenant. The defendant has categorically admitted in paragraph 3 of the written statement that his father was a tenant of the plaintiff society in the suit shop and after his death the defendant became tenant of the plaintiff. He has further admitted that his father was inducted into the suit shop by the plaintiff society and the defendant himself has paid the rent to the plaintiff from time to time. He has further admitted that his father was inducted into the suit shop by the plaintiff society and the defendant himself has paid the rent to the plaintiff from time to time. The tenant once having admitted the tenancy, is estopped from challenging the title of the landlord by virtue of section 116 of the Evidence Act, which 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 by the license 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 license was given." 7. The apex Court, while dealing with the scope and applicability of the doctrine of tenant's estoppel, has observed in paragraphs 11 and 12 of the ruling cited as 1994 JLJ 486 = 1994 (4). SCC 250 (supra) : 'Doctrine of tenant's estoppel' which governs the relationship of landlord and tenant is founded on a contract of tenancy entered into by them, is well settled. Jessel, M.R., who adverted to that doctrine is Stringer's Estate, Shaw V. Jones-Ford explains it thus :-- 'Where a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord's title, as, for instance, if he takes for twenty-one years and he finds that the landlord has only five years' title, he cannot after five years set up against the landlord the jus tertii, though, of course, the real owner can always recover against him. That is a perfectly intelligible doctrine. He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose, title he admits and under whose title he took possession has not" a title. That is a well-established doctrine. That is estoppel by contract. That is a well-established doctrine. That is estoppel by contract. Indeed, the said doctrine of tenant's estoppel finds statutory recognition in section 116 of the Indian Evidence Act, 1872, for short 'the Evidence Act' in that, it states that '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.' 8. The learned counsel for the respondent relied upon 1970 MPLJ 5 = 1970 JLJ 20 , AIR 1977 Patna 247 and AIR 1970 Madras 396. They need not be discussed because in view of the position of law settled by the apex Court (supra), the appellant herein being admittedly the landlord 0 the defendant-respondent, is not required to prove the ownership as required in a title suit and the defendant-tenant after once admitted the tenancy, is estopped from questioning the title of the plaintiff. This Court has also held in Zehra Bai (Mst.) v. Jagmohan Arora reported as 2000 (II) MPWN 142 that the rent having been paid by the defendant to the plaintiff, it does not lie in the mouth of the tenant to dispute the ownership of the landlord. 9. In view of the aforesaid discussion, the learned lower appellate Court has committed an illegality in remanding the matter to the trial Court on the basis of a plea not permissible to the tenant. The remand order is thus, illegal and is set aside. The learned lower appellate Court is directed to decide Civil Appeal No. 144-A/2003 afresh in accordance with law within 4 months. 10. The appeal is accordingly allowed. However, without order as to costs.