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2014 DIGILAW 1792 (HP)

Sudha Bhargava v. Manju Sharma

2014-12-03

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. The petitioner has filed this revision under Section 24(5) of the H.P. Urban Rent Control Act, 1987, (for short ‘Act') against the order dated 21.12.2013 passed by learned District Judge, Shimla, in Rent Appeal RBT No. 103-S/14 of 2013/10 for setting aside the same, whereby he reversed the order of eviction dated 19.12.2009 passed by learned Rent Controller-II, Shimla, in Rent Application No.63-2 of 2008. The facts, in brief, may be noticed. 2. Petitioner Sudha Bhargava had filed eviction petition under Section 14 of the H.P. Urban Rent Control Act, 1987 pleading therein that the premises was let out to the respondent on 10.03.2002 on rent at the rate of Rs. 1750/- per month. It is averred that the premises in question is non-residential in nature situate in G-7 G.L. Bhargava Shopping Complex, Bhargava Estate, Tutikandi, Shimla and electricity facility has been provided in the premises in question. It is further averred that the respondent has not paid the rent with effect from 01.05.2005 and is liable to pay 10% increase in rent to the tune of Rs. 1750/- with effect from 01.04.2007. Eviction of the respondent was sought on the ground of arrears of rent. 3. The respondent resisted the application by filing reply and averred that she was neither inducted as tenant nor was in occupation of the premises and, therefore, the question of arrears of rent does not arise and prayer for dismissal of eviction petition was made. 4. On the pleadings of the parties, the following issues were framed by the learned Rent Controller on 25.02.2009:- 1. Whether the respondent is in arrears of rent since 1.5.2005, as prayed for ? OPA. 2. Whether the respondent is not the tenant of the applicant ? OPR. 3. Relief. 5. The learned Rent Controller answered both the issues in favour of the landlord-petitioner vide his order dated 19.12.2009. The respondent approached the learned appellate Authority by filing an appeal under Section 24 of the Act, who while reversing the aforesaid order passed by the learned Rent Controller, held that the respondent was not a tenant, but was infact a lessee and, therefore, the Transfer of Property Act, 1882, would over-ride the provisions of H.P. Urban Rent Control Act, 1987. 6. 6. It is argued by the learned counsel for the petitioner that the findings recorded by the learned appellate Authority are not at all sustainable as the same carve out an entirely different case in favour of the respondent. He further claimed that the concept of lessor and lessee and landlord and petitioner have been misunderstood by the learned appellate Authority and, therefore, the order passed by the learned appellate Authority is not sustainable in the eyes of law. I have heard the learned counsel for the petitioner and gone through the records. 7. The landlord has sought eviction of the respondent on the ground of arrears of rent along with interest. In reply to the petition, it was claimed by the respondent that she does not know the petitioner and she was never inducted as a tenant by the petitioner. Not only this, she even denied being in possession of the premises. 8. Once the respondent disputed the jural relationship of landlord and tenant between the parties then where was the question of the learned appellate Authority conferring the status of lessee upon the respondent. If the respondent was in possession of the premises, was she not estopped from denying the title of the petitioner during the continuance of the benefit that she had been drawing under the transaction. 9. It is a trite that the doctrine of estoppel is steeped in the principles of equity and good conscience and equity will not allow a person to say one thing at one time and the opposite of it another time. A similar question came up for consideration before the Hon'ble Supreme Court in Kamaljit Singh v. Sarabjit Singh, JT 2014 (10) SC 134 wherein it was held as under; "11.......The respondent would then be estopped from denying the title of the appellant during the continuance of the benefit that he is drawing under the transaction, between him and the appellant. It is trite that the doctrine of estoppel is steeped in the principles of equity and good conscience. Equity will not allow a person to say one thing at one time and the opposite of it another time. It is trite that the doctrine of estoppel is steeped in the principles of equity and good conscience. Equity will not allow a person to say one thing at one time and the opposite of it another time. It would estop him from denying his previous assertion, act, conduct or representation to say something contrary to what was implied in the transaction under which he obtained the benefit of being let in possession of the property to be enjoyed by him as a tenant. 12. Lord Edward Coke, Chief Justice of the Kings Bench and 17th Century English Jurist explains estoppel thus: "Cometh of the French Word `estoupe', from where the English word stopped; and it is called an estoppels or conclusion, because a man's own act or acceptance stoppeth or closet up his mouth to allege or plead the truth." [Co. Litt. 352a] 13. Law Lexicon (Second Edition, Page 656) defines estoppel in the following words: "An Estoppel is an admission, or something which the law treats as an equivalent to an admission, of so high and conclusive a nature that any one who is affected by it is not permitted to contradict it." [11th Edn p. 744 in the note to the Dutchess of Kingston's case] "An admission or determination under circumstances of such solemnity that the law will not allow the fact so admitted to be questioned by the parties or their privies." "The preclusion of a person from asserting a fact, by previous conduct inconsistent therewith, on his own part, or on the part of those under whom he claims." 14. Black's Law Dictionary (9th Edn., page 629) describes Estoppel as : "A bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true." 15. Section 116 of the Evidence Act deals with estoppel against tenants and of licensees or persons in possession. Estoppel under this provision falls in the category of estoppel by contract and is relatively a recent development. The rule embodied in Section 116 simply prevents the tenant in occupation of the premises from denying the title of the landlord who let him into possession, just as it applies to a mortgagor or a mortgagee, vendor or a vendee, bailer or a bailee and licensor or a licensee. The rule embodied in Section 116 simply prevents the tenant in occupation of the premises from denying the title of the landlord who let him into possession, just as it applies to a mortgagor or a mortgagee, vendor or a vendee, bailer or a bailee and licensor or a licensee. The rationale underlying the doctrine of estoppel against the tenant's denial of title of his landlord was stated by Jessel. M.R. in Re: Stringer's Estate, [LR Ch 9 ] as under: "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. This is 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." 16. There is considerable authority for the proposition both in India as well as in U.K. that a tenant in possession of the property cannot deny the title of the landlord. But if he wishes to do so he must first surrender the possession of the property back to him. He cannot, while enjoying the benefit conferred upon him by the benefactor, question latter's title to the property. Section 116 clearly lends itself to that interpretation when it says: "116. Estoppel of tenant; and of licensee of person in possession.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; and no person who came upon any immovable property by the licence 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 licence was given." 17. A three-Judge of this Court in Sri Ram Pasricha v. Jagannath and Ors. A three-Judge of this Court in Sri Ram Pasricha v. Jagannath and Ors. 1976 (4) SCC 184 ] reiterated the principle that a tenant in a suit for possession was estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The title of the landlord, declared this Court, even otherwise irrelevant in a suit for eviction of the tenant. The only exception to the rule of estoppel as stated in Section 116 (supra) may be where the tenant is validly attorned to the paramount title holder of the property or where that the plaintiff-landlord had, during the intervening period, lost his title to the property" 10. Taking into consideration the nature of defence set up by the respondent, the learned Rent Controller, to my mind, should have simply recorded her statement on oath and then proceeded to have passed a conditional order of eviction that in case the respondent is found in possession of the disputed premises, she be evicted forthwith. There was no question of having put the parties to undergo the agony of protracted trial. 11. Now, the further question which arises for determination is as to whether the learned Rent Controller could have conferred upon respondent the status of a tenant under the Act in view of the specific defence of the respondent. I am afraid that since this was not the case set up even by the respondent herself, the status of either tenant or lessee could not have been conferred upon the respondent. Tenant and lessee are not just mere words, but have definite meanings and connotations under the law. This status could not have been conferred by the Court of its own when the specific plea of the respondent was to the effect that :- (i) she is not a tenant; (ii) petitioner is not the landlord; (iii) she is not in occupation of the premises in dispute. 12. Though the learned Courts below have found the respondent to be in possession of the premises, but taking into consideration the nature of defence set up by the respondent, she could neither be termed to be a tenant nor lessee and therefore her possession cannot be protected. But nonetheless, she is liable to pay user and occupation charges and, therefore, no fault can be found with the order passed by the learned Rent Controller. But nonetheless, she is liable to pay user and occupation charges and, therefore, no fault can be found with the order passed by the learned Rent Controller. On the other hand, the order passed by the learned appellate Authority is liable to be set aside as it has dismissed the petition solely on the ground that the respondent is a lessee over the premises in dispute and, therefore, governed under the provisions of the Transfer of Property Act, 1882 and not under the provisions of H.P. Urban Rent Control Act, 1987. Once the respondent herself claims to be not the tenant of the petitioner nor she recognizes the petitioner as her landlord and lastly claims herself to be not in possession of the disputed premises, then, the appellate Authority of its own could not have conferred the status of lessee upon the respondent. 13. In view of the foregoing discussion, the order passed by the learned appellate Authority is set aside, as a result where of, the order passed by the learned Rent Controller is upheld, though for a different reason. 14. Accordingly, the petition is allowed in the aforesaid terms.