JUDGMENT : Sanjay Yadav, J. 1. This is defendant's Second Appeal directed against the Judgment and Decree passed in Civil Appeal No. 68-A/2004 passed on 19.01.2005 affirming the Judgment and Decree dated 25.1.2012 in Civil Suit No. 11-A/1991. 2. The plaintiff brought a suit for ejectment against the defendant in respect of a shop situated at Ward No. 3 Naogaon bearing No. 1207, admeasuring 18 x 18 on the ground of arrears of rent, bonafide need for non-residential purpose on the plea that defendant executed a rent note in favour of plaintiff and that he was the owner of suit shop. The rent note was for two years and the rent for the period from 15.4.1988 to 15.4.1989 was Rs. 400 per month and for the period from 16.4.1989 to 16.4.1990, the rent was Rs. 500 per month. 3. The defendant in the written statement while admitting of being in occupation of suit shop as tenant - but by denying of being in the arrears of rent stated that there did not exist any documentary proof of ownership. 4. The trial Court while non suiting the plaintiff on the issue of arrears of rent; however, treated the denial of ownership as a disclaimer of title and accordingly decreed the suit under Section 12(1)(c) of the M.P. Accommodation Control Act, 1961. The Appellate Court while affirming the findings by the trial Court partly allowed the appeal to the extent of defendant's liability for the rent from 17.4.1990 till the vacating of shop @ Rs. 500 per month instead of Rs. 700 per month as determined by the trial Court interpreting Ex.P/1 the Kirayanama. 5. The present Appeal Was admitted on following substantial question of law: "(i). Whether the impugned judgment can be sustained when in the facts and circumstances of the case the finding under Section 12(1)(c) is based on misreading of the pleadings and evidence and on misinterpretation of the provisions of Section 12(1)(c)? (ii). Whether in absence of finding in the impugned Judgment as to how it adversely and substantially affected the title of the plaintiff, the decree for eviction under Section 12(1)(c) is legally sustainable?" 6. (ii). Whether in absence of finding in the impugned Judgment as to how it adversely and substantially affected the title of the plaintiff, the decree for eviction under Section 12(1)(c) is legally sustainable?" 6. To substantiate these substantial questions learned Senior counsel while leading through the pleadings in the written statement and evidence has to submit that the defendant while not disputing of his being a tenant and that the rent was being paid to the plaintiff had only questioned the title of the plaintiff qua plaintiff's father who inducted him as tenant instructing to pay the rent to the plaintiff. The defence, it is contended, did not in any manner adversely and substantially affect the interest of the plaintiff as a landlord, because the suit was not for declaration of title. It is contended that merely because the plaintiff has been called upon to establish his title as owner over the suit property without denying his own tenancy, in absence of any material evidence cannot be construed of having adversely and substantially affected the interest of the plaintiff in suit property. On these submissions learned Senior counsel seeks reversal of the findings as to disclaimer of plaintiff's title substantially and adversely affecting the interest of the plaintiff. 7. Plaintiff on his turn has supported the concurrent findings of the facts as regard to disclaimer of the title and its affect over plaintiff's interest. 8. Furthermore, though the plaintiff did not question the findings in paragraph 15 of the Judgment by the trial Court as to defendant regularly depositing the rent (the finding is in the following terms: and has declined to decree the suit on the ground of arrears of rent by way of First Appeal or Cross -objection in First Appeal preferred by the defendant; however, by filing the cross-objection in this Second Appeal, questions the findings by the trial Court as to the arrears of rent, which in the considered opinion of this Court cannot be allowed at the Second Appellate Stage. 9. The plaintiff also raises an objection as to the findings by the First Appellate Court as to monthly rent payable from 17.4.1990 @ Rs. 500/- instead of Rs. 700 per month as held by the trial Court. 10. 9. The plaintiff also raises an objection as to the findings by the First Appellate Court as to monthly rent payable from 17.4.1990 @ Rs. 500/- instead of Rs. 700 per month as held by the trial Court. 10. The findings as regard to what rate the plaintiff is entitled to receive monthly rent w.e.f. 17.4.1990 is in paragraph 11 of the Appellate Court's judgment which is reproduced below: 11. Thus, it is on the finding that the rent note on the basis whereof the trial Court had held the plaintiff entitled for monthly rent from 17.4.1990 @ Rs. 700/- per month having no sanction of law and being contrary to public policy and thus hit by the provisions of Section 23 of Indian Contract Act, 1872, the Appellate Court has modified the Judgment and Decree. 12. It is the contention of plaintiff that there being no bar under the Act of 1961 and the rent note having been entered into between the plaintiff and defendant with free will and being lawful for the plaintiff to invoke contractual obligation, the trial Court was well justified in its dispensation, and the Appellate Court in interfering with such lawfully dispensation has gravely erred in law. Reliance is placed on the decision in S. Raja Chetty and another v. Jagannathdas Govindas and others, AIR 1950 Madras 284 and Jamuna Bai and others v. Gampina Narayanamurthy and others, AIR 1959 AP 108 to substantiate the submissions. 13. To counter these submissions, learned Sr. Counsel appearing for defendant by placing reliance on the provisions contained under Section 12(1)(a) read with Section 6 of 1961 Act has to submit that since change of rent of Rs. 700 instead of Rs. 500 was in lieu of continuance of tenancy, the same being unlawful under Section 6 of 1961 Act and the plaintiff can only recover the rent which is legally recoverable under Section 12(1)(a) of 1961 Act, the conclusion arrived at by the First Appellate Court cannot be faulted. 14. After considering these submissions on the cross-objection, the additional substantial question of law which arises for consideration is- "Whether the First Appellate Court is lawfully justified in modifying trial Court's Judgment as regard to rent of Rs. 700 per month to that of Rs. 500 per month w.e.f.17.4.1990." 15. 14. After considering these submissions on the cross-objection, the additional substantial question of law which arises for consideration is- "Whether the First Appellate Court is lawfully justified in modifying trial Court's Judgment as regard to rent of Rs. 700 per month to that of Rs. 500 per month w.e.f.17.4.1990." 15. The relevant part of rent note, Ex.P/1, which is the centre point of controversy is to rate of rent is in the following terms: 16. The question is whether the clause can be said to be lawful. Evidently, it is in addition to the monthly rent of Rs. 400 p.m. from 15.4.1988 to 15.4.1989 and Rs. 500 per month from 16.4.1989 to 16.4.1990. Earlier part of rent note as evident therefrom stipulates that non payment of rent as agreed i.e. Rs. 400 and Rs. 500 as the case may be would make the tenant liable to pay interest on delayed payment and would make him vulnerable to the proceedings for eviction. But in a case where tenant continues beyond the period of tenancy he would be liable for enhanced rent of Rs. 700 per month. 17. Clause (a) of Sub-Section (1) of Section 12 of 1961 Act entitles the landlord for rent "legally recoverable". Section 6 of 1961 Act envisages that "unlawful charges not to be claimed or received". Sub-Section (1) and (2) of Section 6 which are relevant in the context are: "(1). Subject to the provisions of this Act, no person shall claim or receive any rent in excess of the standard rent, notwithstanding any agreement to the contrary. (2). No person shall, in consideration of the grant, renewal or continuance of a tenancy or sub-tenancy of any accommodation- (a) Claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever, in cash or in kind, in additional to the rent; or (b) Except with the previous permission of the Rent Controlling Authority, claim or receive the payment of any sum exceeding one month's rent of such accommodation as rent in advance." 18. Thus, whereas sub-Section (1) envisages that subject to the provisions of the Act of 1961, no person shall claim or receive any rent in excess of the standard rent, notwithstanding any agreement to the contrary; sub-Section (2) clause (a) stipulates that no person shall in consideration of the continuance of a tenancy claim or receive any consideration what so ever, in cash or in kind, in addition to the rent. 19. Evidently, since Rs. 700 per month, as agreed was for continuation of tenancy, it is contrary to the stipulations contained under Section 6(1) and 6(2) of 1961 Act. Section 23 of the Indian Contract Act stipulates- "23. What consideration and objects are lawful, and what not.--The consideration or object of an agreement is lawful, unless --it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void." 20. In the context reference can be had of the decision in Waman Shriniwas Kini v. Ratilal Bhagwandas and Co, AIR 1959 SC 689 ; wherein while dwelling on Sections 13(1)(c) and 15 of Bombay Rents Hotel and Lodging House Rates Control Act 1947, their Lordships were please to hold: "6. It was then argued that under s. 15 of the Act there is no prohibition against a contract of sub-letting, the non-obstante clause being confined to other laws. The section when quoted runs as follows:- "Notwithstanding anything contained in any law it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein: Provided that the (State) Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification. 7. 7. This section prohibits sub-letting and makes it unlawful for a tenant to assign or to transfer his interest in the premises let to him. The non-obstante clause would mean that even if any other law allowed subletting, e.g., s. 108 of the Transfer of Property Act, the sub-letting would, because of s. 15, be unlawful. This would apply to contracts also as all contracts would fall under the provisions of the law relating to contracts, i.e., Contract Act. An agreement contrary to the provisions of that section (s. 15) would be unenforceable as being in contravention of the express provision of the Act which prohibits it. It is not permissible to any person to rely upon a contract the making of which the law prohibits. 10. It was contended that s. 13(1)(e) had to be read separately and not in conjunction with s. 15 of the Act. The section itself makes it quite clear that it is subject to the provision of s. 15 and the two sections must therefore be read together. The appellant pleaded that under the agreement between him and the' respondent he was entitled to sub-let the premises. Such an agreement, in our opinion is void because of the provisions of s. 15 of the Act and s. 23 of the Contract Act and enforcement of the agreement would produce the very result which the law seeks to guard against and to prevent and by sustaining the plea of the appellant the Court would be enforcing an agreement which is prohibited and made illegal. 11. The appellant relied on the maxim in pari delicto potior est conditio posidentis to support his plea that the respondent could not enforce his right under s. 13(1)(e). But this maxim "must not be understood as meaning that where a transaction is vitiated by illegality the person left in possession of goods after its completion is always and of necessity entitled to keep them. Its true meaning is that, where the circumstances are such that the Court will refuse to assist either party, the consequence must, in fact, follow that the party in possession will not be disturbed ". (Per Du Parcq, L.J., in Bowmakers Ltd. v. Barnet Instruments Ltd. The respondent in the present case did not call upon the Court to enforce any agreement at all. (Per Du Parcq, L.J., in Bowmakers Ltd. v. Barnet Instruments Ltd. The respondent in the present case did not call upon the Court to enforce any agreement at all. When the instrument of lease was executed and possession given and sub-letting done it received its full effect; no aid of the Court was required to enforce it. The respondents' suit for ejectment was not brought for the enforcement of the agreement which recognized sub-letting but he asked the Court to enforce the right of eviction which flows directly from an infraction of a provision of the Act (s. 15) and for which the Act itself provides a remedy. There is thus a manifest distinction between this case where the plaintiff asked the Court to afford him a remedy against one who by contravening s. 15 of the Act has made himself liable to eviction and those cases where the Court was called upon to assist the plaintiff in enforcing an agreement the object of which was to do an illegal act. The respondent is only seeking to enforce his rights under the statute and the appellant cannot be permitted to assert in a Court of justice any right founded upon or growing out of an illegal transaction. Gibbs & Sterret Manufacturing Co. v. Brucker. In our opinion s. 15 of the Act is based on public policy and it has been hold that if public policy demands it even an equal participant in illegality is allowed relief by way of restitution of the rescission, though not on the contract." 21. The decisions relied on by the plaintiff i.e. S. Raja Chetty (supra) and Jamunabai (supra), in the context are of no assistance. Whereas in S. Raja Chetty (Supra)- the Division Bench lays down that where a statute seeks to contractual obligation such a statute must always be strictly construed. There can be no dispute as to said proposition. However, the case turns on its own facts wherein the Court found in the context of Section 5(1) of Act of 1949 that where no application for fixation of fair rent is made and no fair rent has been infact fixed an agreement entered into between landlord and tenant for enhanced rent cannot be declared as null and void. 22. However, the case turns on its own facts wherein the Court found in the context of Section 5(1) of Act of 1949 that where no application for fixation of fair rent is made and no fair rent has been infact fixed an agreement entered into between landlord and tenant for enhanced rent cannot be declared as null and void. 22. Similar, is the case of Jamunabai (supra), wherein on given facts the Division Bench held that since despite of the Act in vogue i.e. Madras Buildings (Lease and Rent Control) Act, 1945 the parties opted for contracting out it is the term of contract which binds them and not the statutory provisions. The proposition of law laid down in these two cases are not attracted in the present case because in the case at hand the landlord tenant relationship is governed by the provisions of 1961 Act. 23. On the above analysis the additional substantial question on the cross-objection by the plaintiff is answered against the plaintiff and the findings arrived at by the First Appellate Court in paragraph 11 are upheld as would invite any interference. 24. Now coming back to the substantial question framed in this Appeal at the instance of defendants. 25. Evidently, the suit by plaintiff for eviction was on the ground of arrears of rent under Section 12(1)(a)of 1961 Act, but was decreed under Section 12(1)(c) on the finding that of disclaimer of title of the plaintiff by the defendant same would adversely and substantially affect the landlord's interest. 26. To appreciate the findings, pleadings and evidence led by, the defendant needs to be seen. 27. In paragraph 1 of written statement, the defendant stated: 28. Similarly in paragraph 4 the defendant states: 29. In paragraph 11 the defendant while contradicting the contention by the plaintiff i.e. it is contended on behalf of the defendant. 30. Furthermore, in paragraph 4 of his cross-examination the defendant No. 1 stated: 31. When this statement is read alongwith the statement of the plaintiff in paragraph 13 wherein he stated. 32. No issue is left that the defendant ever disowned that he is not a tenant. He merely, calls upon the plaintiff to establish his title as pleaded by him. 33. The question is whether such a defense would mean disclaimer of landlord's title as would substantially and adversely affect the plaintiff's title. 32. No issue is left that the defendant ever disowned that he is not a tenant. He merely, calls upon the plaintiff to establish his title as pleaded by him. 33. The question is whether such a defense would mean disclaimer of landlord's title as would substantially and adversely affect the plaintiff's title. The answer lay in recent decision by the Supreme Court in Keshar Bai v. Chhunulal, AIR 2014 SC 1394, wherein their Lordships were pleased to hold: "17...........A tenant bonafide 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 the rent control law 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)..." 34. When the facts of the present case as adverted are considered in the light of law laid down in Kesharbai (supra) it leaves no iota of doubt that the concurrent findings that there is disclaimer of title by the defendant are perverse and are hereby set aside. Substantial question of law are accordingly answered in favour of the defendants. 35. Since plaintiff fails on all score, the suit filed by him deserves to be and is hereby dismissed. The judgment and Decree by both the Courts are set aside. 36. Appeal is allowed to the extent above. However, in the circumstances of this case there shall be no costs.