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Allahabad High Court · body

2010 DIGILAW 2890 (ALL)

ARUN KUMAR TEWARI v. YASHPAL SHARMA

2010-09-20

RAKESH TIWARI

body2010
JUDGMENT RAKESH TIWARI, J.--Heard Counsel for the parties and perused the record. 2. House No. 383/296, Mumfordganj Allahabad was let out to one Rajendra Singh and Smt. Raj Kumari, Devi husband and wife. Rajendra Singh executed a registered Will dated 4.3.1986 duly registered on 29.4.1986 in favour of his wife providing that in the event of his death, the property shall rest with his wife. After death of Rajendra Singh, Smt. Raj Kumari Devi became the owner of the property in question. Vide registered sale-deed in favour of the petitioner Arun Kumar Tewari he was transferred the property in dispute and also assigned the rights of landlordship to pursue the suit proceeding in that capacity. 3. Suit No. 415 of 2003 was filed by the respondent No.1 to 4 and one Smt. Manju Sharma wife of Sri Yashpal Sharma respondent No.1, challenging the sale-deed dated 28.4.2003 praying for the grant of decree of permanent injunction and for a declaratory decree to declare the sale-deed dated 28.3.2003 as illegal, wrong, ineffective and inoperative. This suit was filed against Raj Kumari Devi, (wife of Late Rajendra Singh), Smt. Pratibha Priyadarshini and Smt. Shobha Subhdarshini (daughters of Late Rajendra Singh and Alok Singh nephew of Late Rajendra Singh and also against the petitioner. That suit is still pending. In the meantime the petitioner sent notice dated 17.6.2005 to the respondent Nos. 1 to 4 intimating acquiry rights of ownership and of the landlordship. The petitioner also demanded rent w.e.f. 1.5.2003. Notices were replied by the respondent Nos. 1 to 4 denying the title of the petitioner challenging the authority of their landlady Smt. Raj Kumari Devi to transfer the property in favour of petitioner and also intimating that they have already instituted suit No. 415 of 2003 challenging the sale-deed dated 28.4.2003 aforesaid. 4. Another notice dated 28.8.2005 was sent by the petitioner under section 106 of Transfer of Property Act to the respondent Nos. 1 to 4 terminating the tenancy and demanding arrears of rent and giving 30 days time to the respondent Nos. 1 to. 4 to vacate the accommodation in question. 5. Respondent No.4 Smt. Deepa Sharma, Vinod Kumar Sharma and Raj Kumar Sharma have refused to accept the notice. However, the same was served upon them through respondent No.1 by registered post as none of the respondents replied to the notice. 1 to. 4 to vacate the accommodation in question. 5. Respondent No.4 Smt. Deepa Sharma, Vinod Kumar Sharma and Raj Kumar Sharma have refused to accept the notice. However, the same was served upon them through respondent No.1 by registered post as none of the respondents replied to the notice. The landlord was compelled to file SCC Suit No. 85 of 2005 in the Court of Judge Small Cause, Allahabad for ejectment of respondent Nos. 1 to 4 and arrears of rent and damages. This plea was contested by the contested by the respondent Nos. 1 to 4 by filing written statement wherein they denied the title and landlordship of the petitioner. The suit was dismissed vide judgment and decree dated 23.3.2007 which was challenged by the petitioner in S.C.C. Revision No. 189 of 2007. The Revision was also dismissed by judgment and order dated 24.12.2008 giving rise the filing of this writ petition. 6. Contention of the Counsel for the petitioner is that it is not in dispute that the petitioner had attorned the tenancy of the tenant and acknowledged the petitioner as his landlord. He further submitted that it is also not in dispute that the petitioner took this plea before the Court bdow that one of the member of the respondent No.1 to 4 has acquired ho Ise No. 14/4 L.I.G. Govindpur, Allahabad in the same city. This fact was neither denied by the respondent Nos. 1 to 4 in the written statement nor in the cross examination and also was not disclosed in the writ petition by the petitioner. 7. Per contra Counsel for the respondent has placed reliance upon paragraph Nos. 16 and 17 of the judgment rendered by the Apex Court in Sheela and others v. Firm Prahlad Rai Prem Prakash1 which reads thus: 1. 2002 (4) ALR 415. 16. In our opinion, denial of landlord's title or disclaimer of tenancy by tenant is an act which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant within the meaning of clause (c) of sub-section (1) of section 12 of M.P. Accommodation Control Act, 1961. 16. In our opinion, denial of landlord's title or disclaimer of tenancy by tenant is an act which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant within the meaning of clause (c) of sub-section (1) of section 12 of M.P. Accommodation Control Act, 1961. 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 puttiJs 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 controllaw 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. Such an act of the tenant does not attract applicability of section 12 (1) (c) abovesaid. It is the intention of the tenant, as called out from the nature of the plea raised by him, which is determinative of its vulnerability. 17. We have perused the copy of written statement, made available to us by the learned Counsel for the defendant-appellant, wherein it contained the alleged denial of title. Vide para 2 of the written statement the defendant stated - "the owner of the house was Late Khetsidas. On what basis the plaintiff-firm or its partners claim themselves to be the owner of the property is for them to prove". Vide para 3 of the written statement it is again stated - "the plaintiff-firm is not the original owner of the house nor the rent of Rs. 17/- per month was settled between the defendant and the plaintiff". However, nowhere in the written statement the defendant has disowned the character and nature of his possession over the suit premises as tenant. He has neither pleaded the title in the suit property in himself nor pleaded that anyone other than the plaintiffs is the owner of the property. 17/- per month was settled between the defendant and the plaintiff". However, nowhere in the written statement the defendant has disowned the character and nature of his possession over the suit premises as tenant. He has neither pleaded the title in the suit property in himself nor pleaded that anyone other than the plaintiffs is the owner of the property. On the contrary, in the written statement, as also in his deposition, the defendant has admitted his having paid rent tot he plaintiffs and having initiated proceedings before the rent controller for fixation of standard rent of the premises impleading the plaintiff-firm as the landlord-opposite party. To put it in other words, what the tenant has said, is something like this - "Yes, I am a tenant in the suit premises; I have paid the rent to you (and I may continue to do so); but before you may be held entitled to a decree under section 12 (1) (f) of the Act, I, in order to protect myself from eviction, call upon you to satisfy the Court and let me also be satisfied if you are the owner of the suit premises." 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 as it cannot be spelled out from the averments made in the plaint how the title over the property came to vest from Swami Khetsidas, who had inducted the defendant as tenant in the suit premises, to Prahlad Rai though the latter was not a natural born son of Swami Khetsidas and again from Prahlad Rai to the partnership firm which was suing the tenant claiming itself to be the landlord of the premises and arraying itself as plaintiff. The tenant would feel satisfied once the information leading to such vesting of title was disclosed and appealed to the Court. The primary purpose behind raising the plea was bona fide effort on the part of the tenant to protect himself by insisting on the plaintiff satisfying all the requirements of the relevant provision of law, that is section 12 (1) (f), before he was called upon to vacate. The primary purpose behind raising the plea was bona fide effort on the part of the tenant to protect himself by insisting on the plaintiff satisfying all the requirements of the relevant provision of law, that is section 12 (1) (f), before he was called upon to vacate. The pleading of the defendant has to be read and appreciated in the light of the requirements of section 12 (1) (f) of the Act which provision require a decree for eviction on the ground of bona fide requirement being passed only in favour of an 'owner-landlord'; ownership (as understood in rent control law) being one of the ingredients of the ground for eviction. Such a plea raised by the defendant in his written statement is not a malicious act of the tenant. The plaintiff staking claim for eviction under section 12 (1) (f) has also to prove ownership, apart form landlordship. It would have been different if the tenant would have raised such a plea as a malicious or wanton act of himself by raising on his own a dispute as to the title of the landlord as owner of the suit premises though the question of ownership was not germane to the claim for eviction or if he would have disowned his character as tenant whilst in possession of the premises. 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 fide 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) (f) of the Act for eviction of the tenant basing such finding on the tenant's plea raised in the written statement." 8. In rebuttal Counsel for the petitioner has relied upon the paragraph 15 of the aforesaid judgment which is thus: 15. After the creation of the tenancy if the title of landlord is transferred or devolves upon a third person, the tenant is not estopped from denying such title. In rebuttal Counsel for the petitioner has relied upon the paragraph 15 of the aforesaid judgment which is thus: 15. After the creation of the tenancy if the title of landlord is transferred or devolves upon a third person, the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights acknowledges the title of transferee either expressly or by paying rent to him, the rule of estoppel once again comes into operation for it is unjust to allow tenant to approbate and reprobate and so long as the tenant enjoys everything which his lease purports to grant how does it concern him what the title of the lessor is (See Tej Bhan Madan v. IInd Additional District Judge and others). A denial of title which falls foul of the rule of estoppel contained in section 116 of Evidence Act is considered in law a malicious act on the part of the tenant as it is detrimental to the interest of the landlord and does no good to the lessee himself. 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 landlord's 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., Kundan Mal v. Gurudutta 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. It was held, "the principle of forfeiture by disclaimer is that where the tenant denies the landlord's 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 landlord's 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". 9. Counsel for the respondent further submits that since in the present case, respondent Nos. 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". 9. Counsel for the respondent further submits that since in the present case, respondent Nos. 1 to 4 though had acknowledged the petitioner as landlord but denied his title as such the ruling cited by him is not applicable. He also submits that the respondent has admitted that the sale-deed has been executed in favour of petitioner and as such the plea in suit No. 415 of 2003 regarding deletion of the prayer and cancellation of sale-deed was made. Thus it cannot be said that the petitioner has not been acknowledged as landlord by the respondents. 10. After hearing Counsel for the parties and perusing the record, it is apparent that the petitioner has been acknowledged as landlord by the respondent Nos. 1 to 4. One of the member of their family has acquired a building at residential house in vacant condition in his own name in the same city in which he has shifted. Therefore the proviso to 20 clause 4 of the Act No. 13 of 1972 would apply and the tenant is liable to be evicted from the house in dispute by operation of law. 11. The Apex Court in Gordon Woodroffe and Co. (Madras) Ltd. v. Shaik M.A. Majid and Co.1 in paragraph Nos. 14 and 15 has considered the question of 'attornment' : 1. AIR 1967 SC 161 V 54 C 36. (14) "Attornment, in its strict senses, is an agreement of the tenant to a grant of the reversion made by the landlord to another, or, as it has been defined, the act of the tenants putting one person in the place of another as his landlord'" -- see paragraph 732, Foa's General Law of Landlord and Tenant. This means that in the first instance attornment is made in favour of the person who has derived his title or supposed title from the original landlord. It implies a continuity of the tenancy created by the original landlord in favour of the tenant. It is in these circumstances that the existing tenant, for the rest of the period of his tenancy, agrees to acknowledge the new landlord as his landlord. It implies a continuity of the tenancy created by the original landlord in favour of the tenant. It is in these circumstances that the existing tenant, for the rest of the period of his tenancy, agrees to acknowledge the new landlord as his landlord. Such an agreement of the tenant amounts to attornment and by such an attornment the tenant by his act substitutes the new landlord in place of the previous one. Such attornment is complete the moment the tenant agrees to acknowledge the new landlord to be his landlord. Any future payment or non-payment of rent does not affect the relationship created by the attornment. The new landlord will have his remedies with respect to the rents falling in arrears. (15) "With regard to the title of a person from whom the possession was not obtained, but who has been recognised as landlord by the tenant, such recognition may be by express agreement, by attornment, or other formal acknowledgement (as by paying a nominal sum of money), by payment of rent, or of a nominal sum as rent, or by submission to a distress." 12. Further more this Court in Kundan Lal v. IXth Additional District Judge, Allahabad and others2 has held that where the Trial Court has dismissed the suit as the revision also, the writ petition filed challenging the decision in suit on the ground that the tenant has denied the title, ignoring the evidence can be entertained by the High Court in the circumstances of the case and it has power to correct the wrong. It was further held that the tenant, in these circumstances is not entitled to protection of section 20 (4) of the Act. Reference may also be taken to the decision in this regard rendered by the Apex Court in Subhash Chandra v. Mohammad Sharif and others1, Anar Devi (Smt.) v. Nathu Ram2, as well as judgment of this Court in Satya Prakash Garg v. XIth Additional District Judge, Bulandshahr and others3. 2. 2007 (69) ALR 718. 1. AIR 1990 SC 636 . 2. (1994) 4 SCC 250 . 3. 2007 (66) ALR 388. 13. 2. 2007 (69) ALR 718. 1. AIR 1990 SC 636 . 2. (1994) 4 SCC 250 . 3. 2007 (66) ALR 388. 13. Notice may also be taken that specific averment has been made in paragraph No.6 of the writ petition that the petitioner at the appellate stage of trial had filed evidence showing that the respondents had acquired a house in the same city, this fact has also been admitted by the respondents in their written statement and cross examination before the Trial Court as well as the Revisional Court. Thus the petition is liable to be allowed for the reasons stated above. 14. The writ petition is accordingly allowed. Impugned orders passed by the Court below are quashed. Respondent No. 1 to 4 shall hand over vacant possession of the house in dispute within a period of two months from today. Petition Allowed.