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Allahabad High Court · body

2008 DIGILAW 1049 (ALL)

BHAGWAT v. ADDL DISTRICT JUDGE BULANDSHAHR

2008-05-12

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) -THE petitioner who is the defendant of SCC Suit No. 48 of 1981 has sought the quashing of the decree for eviction and recovery of arrears of rent. The petitioner is also aggrieved by the dismissal of the revision that had been filed under section 25 of the Provincial Small Causes Courts Act, 1887 for setting aside the said decree. ( 2 ) THE records of the writ petition indicate that the aforesaid SCC Suit No. 48 of 1981 had been filed with the allegations that Abdul Hameed Khan was the owner of the suit premises; that he died 20 years back and the plaintiffs who were the heirs and legal representatives succeeded as owners and landlord of the property in dispute; that the property in dispute had been let out by Abdul Hameed Khan to Manglu, father of the defendant, on a monthly rent of 8 annas w. e. f. 10th December, 1949 and a registered rent deed dated 10th December, 1949 was duly executed between the parties; that after the death of Manglu, defendant Bhagwat became the tenant of the premises in dispute; that the defendant had not paid any rent from 1974 in spite of repeated demands; that by the notice dated 25th June, 1981 which was served upon the defendant on 29th June, 1981, the plaintiffs had terminated the tenancy and demanded arrears of rent; that in reply to the said notice the defendant asserted that the plaintiff was neither the landlord nor the owner of the premises in dispute; that consequently the plaintiffs sent a notice dated 18th August, 1981 determining the tenancy because of denial of title by the defendant and that this notice was duly served upon the defendant on 18th August, 1981. The suit was, accordingly, filed for eviction and recovery of arrears of rent. ( 3 ) THE suit was decreed by the judgment and order dated 30th May, 1983 but the revision filed by the tenant under section 25 of the Provincial Small Causes Courts Act, was allowed and the matter was remanded to the Trial Court for framing a point regarding determination of lease by forfeiture as alleged in the plaint and then decide the suit in accordance with law. ( 4 ) THE learned Judge, Small Causes Courts again decreed the suit on 21st January, 1985 and the revision filed by the defendant was dismissed. ( 5 ) I have heard learned Counsel for the petitioners and the learned Counsel appearing for the respondents and have perused the materials available on record. ( 6 ) LEARNED Counsel for the petitioners urged that the Courts below fell in error in holding that the lease of the property had been determined by forfeiture under section 111 (g) of the Transfer of Property Act, 1882 (hereinafter referred to as the t. P. Act) inasmuch as the defendant had not denied the title of the landlord in clear and unequivocal terms and in support of his contention he has placed reliance upon the decision of the Supreme Court in Sheela and others v. Firm Prahlad Rai Prem Prakash, 2002 (47) ALR 415 (SC ). and the decision of this Court in jagdish Prasad Gupta v. Smt. Kanti Devi and others, 1981 ARC 327=1981 (7) ALR 15 (Sum ). ( 7 ) IT has also been submitted that the suit was liable to be dismissed as the plaintiff had not pleaded and proved that he had waived his right of reentry or condoned the conduct of the tenant as was required to be done in view of the provisions of section 20 (2) (f) of the Act and in support of his contention he has placed reliance upon a decision of this Court in Mohd. Aleem v. Mohd. Abrar and others, 1989 (1) ARC 329. ( 8 ) LEARNED Counsel for the respondents, however, submitted that the defendant tenant had renounced his character as a tenant in clear and unequivocal terms by setting up the title of the suit premises in himself and as such the lessor was justified in determining the lease in view of the provisions of section 111 (g) of the T. P. Act and in support of his contention he has placed reliance upon the decision of this Court in Narain Das Khanna v. Dr. Jawahar Lal Bhatia, 1983 (9) ALR 143. Learned Counsel also submitted that in the written statement the defendant had not taken any plea about waiver and nor was such plea taken up in the revision and, therefore, such a plea cannot be taken up for the first time in this petition. Jawahar Lal Bhatia, 1983 (9) ALR 143. Learned Counsel also submitted that in the written statement the defendant had not taken any plea about waiver and nor was such plea taken up in the revision and, therefore, such a plea cannot be taken up for the first time in this petition. ( 9 ) I have carefully considered the submissions advanced by learned Counsel for the parties. ( 10 ) IT is not in dispute that Hifzal Raheem Khan and Abdul Rahim Khan (plaintiffs) had sent the notice dated 25th June, 1981 to Bhagwat (defendant) for determination of the tenancy under section 106 of the T. P. Act. The said notice recited that the owner and landlord Abdul Hameed Khan had let out the premises in dispute to Manglu, (father of defendant Bhagwat), on 10th December, 1949 on a monthly rent of 8 annas on the basis of a registered rent deed; that upon the death of Abdul Hameed Khan they had succeeded to the property as owners and landlords; that Bhagwat had not paid rent for the last seven years and so they were no longer interested in keeping Bhagwat as a tenant and the tenancy would stand terminated on expiry of thirty days. ( 11 ) THE defendant, Bhagwat sent a reply dated 6th July, 1981 to the aforesaid notice mentioning therein that Hifzal Raheem Khan and Abdul Raheem Khan (plaintiffs) were not owners of the premises in dispute and nor was he a tenant of the premises in dispute. On the other hand, Bhagwat asserted that the premises had been built by him from out of his own funds after getting the map passed from the Town Area and he was also paying taxes to the Town Area. It was also mentioned that in such circumstances there was no question of payment of any rent and it appeared that the plaintiffs wanted to usurp his house. It was further stated that the provisions of section 106 of the T. P. Act, in such circumstances, would not applicable. Upon receipt of the aforesaid reply Hifzal Raheem Khan and Abdul Rahim Khan (plaintiffs) sent a notice under section 111 (g) of the T. P. Act determining the lease by forfeiture as the lessee had renounced his character as such by setting up a title in himself. Upon receipt of the aforesaid reply Hifzal Raheem Khan and Abdul Rahim Khan (plaintiffs) sent a notice under section 111 (g) of the T. P. Act determining the lease by forfeiture as the lessee had renounced his character as such by setting up a title in himself. ( 12 ) THE contention of the learned Counsel for the petitioners is that the lease could not have been determined under the provisions of section 111 (g) of the T. P. Act as the lessee had not renounced his character as a tenant in clear and unequivocal terms by setting up the title in himself. ( 13 ) SECTION 20 (2) of the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the act) provides that a suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the grounds enumerated therein. One such ground is when the tenant renounces his character as such or denies the title of the landlord, and the landlord has not waived his right of re-entry or condoned the conduct of the tenant. In order to constitute a denial of title of the landlord the tenant should renounce his character as such and set up a title either in himself or any third person. The landlord can thereafter determine the lease by forfeiture by giving a notice in writing to the lessee of his intention to determine the lease. However, there is no disclaimer if the lessee refuses to pay rent until he knows who is the right owner or until he is satisfied as to the lessors title to receive the whole rent. A mere statement of the tenant that he was not aware in the particular set of facts as to who was the landlord would not result in denial of the title of landlord. ( 14 ) THE Supreme Court in Sheela and others (supra) examined the determination of lease of immovable property by forfeiture under section 111 (g) of the T. P. Act and made these observations: "the law as to tenancy being determined by forfeiture by denial of the lessors title or disclaimer of the tenancy has been adopted in India from the Law of England where it originated as a principle in consonance with justice, equity and good conscience. On enactment of the Transfer of Property Act, 1882, the same was incorporated into clause (g) of section 111. . . . . . . . . . . . . . . . . . . The principle of determination of tenancy by forfeiture consequent upon denial of the lessors title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognize such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. However, in various rent control legislations such a ground is recognized and incorporated as a ground for eviction of tenant either expressly or impliedly by bringing it within the net of an act injurious to the interest of the landlord on account of its mischievous content to prejudice adversely and substantially the interest of the landlord. . . . . . . . . . . . . . . Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging that the title of the landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title. It is a question of fact, however, what intention underlies the words or the actions of a tenant, whether in fact he is definitely asserting a title adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. Thus, it is not sufficient that the lessee does not at once acknowledge the title of the landlord and a general traverse in the defence to an action for possession does no more than put the landlord to proof and does not assert that the title is in another. The essential characteristic of disclaimer by tenant as stated in Foas General Law of Landlord and Tenant (Eight Edition, para 934, at p. 589) is that it must amount to a renunciation by the tenant of his character of tenant, either by setting up a title in another, or by claiming title in himself. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. The denial, though it need not be express and can be implied, must nevertheless be a clear denial and it must be clearly proved. . . . . . . . . . . . . . . . . . . . . . . . . . . However, it has to be borne in mind that since the consequences of applying the rule of determination by forfeiture of tenancy as a result of denial of landlords title or disclaimer of tenancy by tenant are very serious, the denial or disclaimer must be in clear and unequivocal terms. (See. Majati Subbarao v. P. V. K. Krishna Rao (Deceased) by l. Rs. , (1989) 4scc 732. Kundan Mal v. Gurudutta, (1989) 1 SCC 552 . and raja Mohammad Amir Ahmad Khan, (supra ). We may quote with advantage the law as stated by a Division Bench of Calcutta High Court in Hatimullah and others v. Mahamad Abju Choudhury, AIR 1928 Cal 312. It was held, "the principle of forfeiture by disclaimer is that where the tenant denies the landlords title to recover rent from him bona-fide on the ground of seeking information of such title or having such title established in a Court of law in order to protect himself, he is not to be charged with disclaiming the landlords title. But where the disclaimer is done not with this object but with an express repudiation of the tenancy under the landlord, it would operate as forfeiture". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability to be evicted, the tenant should have renounced his character as tenant and in clear and unequivocal terms set up title of the landlord in himself or in a third party. . . . . . . . . . . . To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability to be evicted, the tenant should have renounced his character as tenant and in clear and unequivocal terms set up title of the landlord in himself or in a third party. A tenant bona fide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself (i. e. the tenant) or to earn a protection made available to him by Rent Control Law but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy. . . . . . . . . . . . . . . . . . . . . . . . The nature of the plea raised and the stand taken by the defendant in the written statement and at the trial is that he is the tenant and the plaintiffs are the landlord, as defined in the Act, but the defendant demands proof of ownership of the plaintiffs over the suit property. . . . . . . . . . . . . . . . . . The plea raised by the defendant in his written statement is not a clear and unequivocal denial of the title of the landlord. There is no reason to doubt the bona fides of the tenant while raising such plea. The First Appellate Court and the High Court were, therefore, not right in holding availability of ground under section 12 (1) (c) of the Act for eviction of the tenant basing such finding on the tenants plea raised in the written statement. " (Emphasis supplied) ( 15 ) THE Supreme Court has emphasized that the essential characteristic of a disclaimer by a tenant is that it must amount to a renunciation by the tenant of his character by claiming a title in himself and the denial must nevertheless be in clear and unequivocal terms. The Supreme Court has also observed that mere demand of proof of ownership of the landlord over the suit property would not amount to forfeiture. The Supreme Court has also observed that mere demand of proof of ownership of the landlord over the suit property would not amount to forfeiture. ( 16 ) IN Jagdish Prasad Gupta (supra) this Court also observed that a demand in the written statement requiring the plaintiff to prove his title for making payment of rent would not result in denial of title and the relevant observations are: "if these principles are applied to the present case, it is difficult to hold that there was forfeiture of tenancy rights. It may be noted that the defendant-appellant had taken the disputed shops on rent from Pati Ram. He never disputed the title of Pati Ram. The plaintiffs-respondents claimed title to the disputed property in the lifetime of Pati Ram on the basis of a gift deed executed in their favour by Pati Ram. The defendant had certainly paid rent to the plaintiffs directly and had also sent the same by money orders to them. By implication, therefore, he had accepted the right of the plaintiffs to realise the rent from him. Now, when in his written statement he disputed the execution of the gift deed as also attributed fraud, misrepresentation etc. in the execution of it, the only purpose could have been to put the plaintiffs to prove their title for making payment of rent by him to them. If the written statement is read shorn of the flourish contained therein, the substance of the plea would be that the plaintiffs were put to prove right to realise rent from the defendant on the basis of the aforesaid gift deed. The defendant-appellant did not renounce his character as lessee by setting up a title in third person of by claiming title in himself. " ( 17 ) IN the present case, upon receipt of the notice dated 25th June, 1981, Bhagwat sent a reply in which in clear and unequivocal terms and asserted that the plaintiff was neither the landlord nor the owner of the premises in dispute. In fact, it was asserted that he was the owner of the premises which had been built by him from out of his own funds and he was also paying taxes to the Municipal Authorities. It was even asserted in the said reply that Hifzal Raheem Khan and Abdul Rahim Khan (plaintiffs) wanted to usurp his house. In fact, it was asserted that he was the owner of the premises which had been built by him from out of his own funds and he was also paying taxes to the Municipal Authorities. It was even asserted in the said reply that Hifzal Raheem Khan and Abdul Rahim Khan (plaintiffs) wanted to usurp his house. It also needs to be noticed that the same stand was not only reiterated by the defendant in the written statement but it was also asserted that the defendant had perfected his title by adverse possession and also by virtue of the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950. In such circumstances, in view of the decision of the Supreme Court in Sheela and others (supra) the contention of the learned Counsel for the petitioner cannot be accepted. ( 18 ) THE next contention advanced by learned Counsel for the petitioner is that the landlord did not plead that he had waived his right of re-entry or condoned the conduct of the tenant. ( 19 ) IN the present case, as notice hereinabove, immediately upon receipt of the reply sent by Bhagwat in which he denied that Hifzal Raheem Khan and Abdul Rahim Khan were the owner of the premises in dispute, the landlord sent a notice dated 18th August, 1981 determining the tenancy because of denial of title and thereafter filed the suit in September, 1981. In the plaint it was specifically asserted that because of denial of title the plaintiff had determined the tenancy. This was obviously in the context of section 20 (2) (f) of the Act. In the written statement the defendant did not make any averment that the landlord had waived his right of re-entry or condoned the conduct of the tenant. No issue was framed regarding this aspect by the Judge, Small Cause Courts and neither was this ground taken or urged before the Revisional Court. The landlord was bona fide and effectively pursuing his remedy. ( 20 ) IN such circumstances, the petitioner cannot raise this issue for the first time in this petition, particularly when waiver is a question of fact which has to be pleaded and proved but the tenant did not raise any such plea. The landlord was bona fide and effectively pursuing his remedy. ( 20 ) IN such circumstances, the petitioner cannot raise this issue for the first time in this petition, particularly when waiver is a question of fact which has to be pleaded and proved but the tenant did not raise any such plea. In this connection reference may be made to the decision of the Supreme Court in Joginder Singh Sodhi v. Amar Kaur, 2004 (23) AIC 44=2005 (1) SCC 31. wherein it was observed: "we are not disputed by the argument. Firstly, waiver is a question of fact which must be expressly pleaded and clearly proved No such plea had been raised either by the tenant or by the "sub-tenant" before the Rent Controller, before the Appellate Authority or even in the High Court. Such a question cannot be allowed to be raised for the first time in this Court. ( 21 ) IN Vaishakhi Ram and others v. Sanjeev Kumar Bhatiani, 2008 AIR SCW 1753. the Supreme Court observed that to constitute waiver of benefit conferred by the Delhi Rent Control Act, 1958, conscious relinquishment of such benefit must beproved. ( 22 ) IN Halsburys Law of England, 4th Edition, Vol. 27, the question of waiver of forfeiture has been dealt with as follows:- "429. Waiver of forfeiture.-The landlord has the option whether to take advantage of a forfeiture or not and if he elects not do so the forfeiture is waived. Such election may be either express or implied, and it is implied when, after the cause of forfeiture has come to his knowledge, the landlord does any act whereby he recognises the relationship of landlord and tenant as still continuing. The onus of proof that the landlord knew of the cause of forfeiture is on the tenant, and does not shift to the landlord on proof that the landlod has recognised the tenancy after the ground of forfeiture has arisen. However, if it is shown that, with knowledge of the cause of forfeiture, the landlord has recognized the tenancy, he will be precluded from saying that he did not do the act with the intention of waiving the forfeiture. However, if it is shown that, with knowledge of the cause of forfeiture, the landlord has recognized the tenancy, he will be precluded from saying that he did not do the act with the intention of waiving the forfeiture. A landlord does not waive the forfeiture by merely standing by and seeing it incurred, where, for instance, the tenant makes alterations in breach of covenant and the landlord does not interfere: there must be some positive act of waiver. There is no difference in principle in the rules governing waiver of the right to forfeiture whether the breach is a failure to pay the rent or some other breach of covenant. " ( 23 ) THIS Court in Ram Avtar Goel v. Dr. Jagattnath Gupta and another, 2001 (45) ALR 749. also examined the question of waiver under section 20 (2) (f) of the Act in detail and observed: ". . . . . . . . . . . . . . Where a party which has incurred a liability pleads exoneration therefrom on account of some conduct of the party entitled to enforce the liability, the burden of proof of such conduct would generally lie upon the party claiming exoneration especially if the conduct of other party is a positive one. The Trial Court has held on the question of waiver that neither of the parties has adduced any evidence and as such it has proceeded to decide the matter on the basis of circumstances. The first circumstance relied upon by the Trial Court is that the suit itself has been filed on the ground of denial of title under section 20 (2) (f) of the Act. " ( 24 ) IN Dr. A. S. Raj v. District Judge, Lucknow and others, 1982 (2) ARC 515. it was held that waiver is a conscious Act. The mere acceptance of rent after the institution of the suit was held not to constitute waiver. If the landlord was bonafide pursuing his remedy, no waiver could be incurred. In Mool Chand and others v. Smt. Brijmani Devi and others, AIR 1955 Alld 6980. the question arose as to whether claim for rent in the notice terminating tenancy as well as the use of that expression in the plaint would constitute waiver of forfeiture. If the landlord was bonafide pursuing his remedy, no waiver could be incurred. In Mool Chand and others v. Smt. Brijmani Devi and others, AIR 1955 Alld 6980. the question arose as to whether claim for rent in the notice terminating tenancy as well as the use of that expression in the plaint would constitute waiver of forfeiture. The Division Bench while negativing the contention held that by mere use of the expression rent the landlord would not be deemed to have waived the forfeiture. The service of notice terminating tenancy and subsequently filing a suit were evidence of clear intention not to waive the right already acquired. . . . . . . . . . . . . . . . "the Trial Court has considered the circumstances for coming to the conclusion that waiver had not been proved. The landlord had effectively contested the suit in which the tenant had denied his title. It was followed by a notice terminating the tenancy on the ground of denial of title in which there was specific averment that the landlord had not condoned the conduct of the tenant nor waived his right. The notice was followed by a suit for eviction viz, the present suit in which the landlord based his case on the existence of the ground in section 20 (2) (f) of the Act apart from the ground of default. These acts are positive acts, which negatived any intention to waive. Good grounds have been given by the Trial Court in support of its finding. " ( 25 ) IN the aforesaid judgment, the Court had considered the various circumstances for coming to the conclusion that the landlord did not waive his right under section 20 (2) (f) of the Act. The circumstances were the giving of notice determining the tenancy on the ground of default of title, followed by the suit for eviction in which the landlord based his case on the existence of the ground set out in section 20 (2) (f) of the Act apart from the ground of default. This is also the situation in the present case wherein the landlord immediately filed the suit after giving notice of termination of tenancy on the ground of default of title and effectively pursued it. ( 26 ) LEARNED Counsel for the petitioner, however, placed reliance upon the decision of this Court in Mohd. This is also the situation in the present case wherein the landlord immediately filed the suit after giving notice of termination of tenancy on the ground of default of title and effectively pursued it. ( 26 ) LEARNED Counsel for the petitioner, however, placed reliance upon the decision of this Court in Mohd. Aleem (supra ). In this case the tenant had denied the title in the written statement. No amendment was made in the plaint invoking the ground of section 20 (2) (f) of the Act and, therefore, it was held by this Court that in the absence of pleadings attracting the provisions of section 20 (2) (f) of the Act, the defendant had no opportunity to show that it was not attracted. This decision, therefore, does not help the petitioner. Thus, the second contention advanced by the learned Counsel for the petitioner cannot also be accepted. ( 27 ) THERE is, therefore, no merit in this petition. It is, accordingly, dismissed. Petition Dismissed. .