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2022 DIGILAW 1201 (RAJ)

Niranjan Lal v. Lala Ram

2022-04-13

SUDESH BANSAL

body2022
JUDGMENT 1. Appellant-Plaintiff-Landlord(hereinafter referred as "Plaintiff") preferred this second appeal under Section 100 CPC, assailing judgment and decree dated 24-10-1997 in Appeal No.21/1996, passed by Additional District Judge, No.3 Alwar dismissing appeal and affirming the judgment and decree dated 18-7-1994 passed by Civil Judge (Senior Scale) Alwar, in Civil Suit No.165/1985 whereby plaintiff’s suit for eviction of tenant from tenanted shop and recovery of rent was dismissed. 2. It appears from the record that plaintiff purchased the rented shop through registered sale-deed dated 10-9-1984 and instituted present eviction suit on 22-4-1985 on ground of denial of title invoking provisions of Section 13(1)(f) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereafter ’the Rent Act’). Plaintiff stated in the plaint that he purchased the rented shop from partnership firm M/s.Vijendra and Vijendra and since the defendant was tenant in rented shop, he has become the tenant of plaintiff. It was claimed that partnership firm namely M/s.Vijendra and Vijendra has informed defendant vide notice dated 29-9-1984 about transferring of rented shop to plaintiff through registered sale deed. That apart plaintiff himself issued legal notice dated 29-9-1984 to defendant informing about the purchase of rented shop and asking him to pay the rent. Since in sale deed itself the plaintiff was allowed to recover arrears of rent falling due against defendant, therefore, rent was claimed from 1- 10-1983. It was averred that defendant vide reply notice dated 5- 12-1984 disputed the sale-deed of plaintiff as well as denied title of the plaintiff though admitted himself to be the tenant. It was averred that since conduct of defendant of denial of title of plaintiff has not been waived and the defendant is estopped by virtue of Section 116 of the Evidence Act to dispute the title of plaintiff, therefore, he is liable to be evicted. 3. Defendant filed written statement on 2-8-1985. the defendant in his written statement did not dispute the plaintiff to be landlord subject to proof of purchasing the rented shop from M/s.Vijendra and Vijendra. The defendant took a defence that since he was tenant in rented shop of Deva Lal, through rent note dated 1-1-1980, Deva Lal informed him that he sold rented shop to partnership firm M/s.Vijendra and Vijendra, hence, the defendant became tenant of the partnership firm M/s.Vijendra and Vijendra and pay rent to its partner namely Ramesh. The defendant took a defence that since he was tenant in rented shop of Deva Lal, through rent note dated 1-1-1980, Deva Lal informed him that he sold rented shop to partnership firm M/s.Vijendra and Vijendra, hence, the defendant became tenant of the partnership firm M/s.Vijendra and Vijendra and pay rent to its partner namely Ramesh. Now the plaintiff as well as one person Vijendra have informed vide notice dated 29-9-1984 that rented shop has been sold by Vijendra Kumar. The defendant went in dilemma since landlord and owner of the rented shop was partnership firm M/s.Vijendra and Vijendra, and plaintiff claimed to have purchased the rented shop from Vijendra Kumar, therefore, the defendant deposited arrears of rent in the court under Section 19A of the Rent Act in the name of partnership frim M/s.Vijendra and Vijendra. The defendant by way of reply notice dated 5-12-1984 has just asked the plaintiff to clarify that from whom he purchased the rented shop and this askance/ seeking clarification may not be treated as denial of title. 4. On basis of pleadings of parties, the trial court framed four issues. Plaintiff examined himself and two other witnesses and exhibited documents. Defendant also examined himself and exhibited documents. 5. Considering evidence of witnesses of both sides and exhibited documents the trial court on Issue No.1, regarding non payment of rent from 1-10-1983, since defendant did not produce any document i.e. as money order receipt, or notice for bank account of landlord prior to depositing rent in court on 17-5-1984, came to the conclusion that although defendant committed first default benefit of first default was given, but the plaintiff was not entitled to evict the defendant, and decided the issue as such. Issue No.2, regarding defendant’s notice dated 5-12-1984 (Ex.3) not admitting the plaintiff his landlord, the trial court considering oral and documentary evidence came to the conclusion that the defendant sought clarification from plaintiff that as to from whom he purchased the shop in question, since the plaintiff gave contradictory information to defendant of purchasing shop from Vijendra Kumar, while the real owner/ landlord of the shop in question was M/s.Vijendra and Vijendra, because initial owner/ landlord was Devalal who sold the shop to M/s.Vijendra and Vijendra, to whom defendant was paying rent through Ramesh Chand. Further Vijendra Kumar also in his individual capacity sent notice informing about sale of his shop to the plaintiff and not on behalf of the firm, therefore, the trial court concluded that plaintiff had not denied the title of plaintiff but he sought correct information about the fact whether shop has been purchased from M/s.Vijendra and Vijendra firm or from Vijendra Kumar in person, as such the issue No.2 of denial of title was decided against plaintiff. Issue No.3, regarding rent @ Rs.140/- per month due from 1-10-1983, the trial court considered the fact that rent was fixed by the court on 23-11-1985 treating the same to be due from 1- 10-1983 and the defendant deposited the same in the name of M/s.Vijendra and Vijendra under Section 19A of the Rent Act. Since the defendant deposited the rent under Section 19A of the Rent Act without following the due procedure it was held that he committed default in paying rent for more than six months and deposited the same after determination by the court, however, benefit of first default was given to defendant. Therefore, the trial court concluded that no rent was due against defendant. Consequently the suit was dismissed vide judgment dated 18-7-1994 as the plaintiff failed to prove that the denial of title on the part of defendant was intentional and not bonafide, however, the plaintiff was declared entitled to receive the rent deposited by defendant. 6. First appeal challenging the said judgment by plaintiff, finding no illegality or perversity in the impugned judgment of the trial court, came to be dismissed on 24-10-1997. Hence, this second appeal. 7. This court on 20-4-1998 framed following substantial questions of law:- (i) Whether notice by one of the partners of the firm for attornment is sufficient to show that the firm has transferred property and the tenant is bound by such notice? (ii) Whether landlord is not entitled for a decree of eviction when tenant makes title questionable and whether putting a question or doubting the title, is not denial of a title? (iii) Whether the action of the tenant in allowing the plaintiff to withdraw the rent deposited in court vide order dated 1-11-1986 amounted to admissions that plaintiff was his landlord? (iii) Whether the action of the tenant in allowing the plaintiff to withdraw the rent deposited in court vide order dated 1-11-1986 amounted to admissions that plaintiff was his landlord? (iv) Whether finding of the trial court is sustainable when the question of default and issue No.1 has been decided in favour of plaintiff and contradictory finding has been given while deciding issue No.2 about denial of title? (v) Whether by virtue of finding of landlord defined in Rajasthan Premises (Control of Rent and Eviction) Act, 1950 plaintiff is not landlord and tenant is estopped from denying or challenging the title of plaintiff? 8. Heard learned counsel for parties and perused impugned judgment passed by the trial court as affirmed by the first appellate court, as also record of the case. 9. Counsel for appellant submits that by reply notice dated 5- 12-1984 as well as defendant’s pleadings in written statement it is a clear case of denial of title of plaintiff by the defendant. He submits that by virtue of 116 of the Evidence Act, the defendant is estopped from challenging title of the plaintiff, although the plaintiff is deriving the title from erstwhile landlord. Counsel placed reliance on Bismillah Be v. Majeed Shah [ (2017)2 SCC 274 ] to argue that during continuance of the tenancy the tenant is estopped from challenging the title of landlord. The judgment in case of Vinay Eknath Lad v. Chiu Mao Che [ (2019)20 SCC 182 ] was also relied wherein the Apex Court held that in a landlord-tenant suit, the landlord is not required to prove his title in the subject property. Reliance has also been placed on a judgment in Mukesh Kumar Garg v. Naveen Bansal, SBCWP No.24441/2018 decided on 19-3-2021, wherein this court held that tenant is estopped from challenging status of landlord claiming the gift deed to be sham transaction. 10. Reliance has also been placed on a judgment in Mukesh Kumar Garg v. Naveen Bansal, SBCWP No.24441/2018 decided on 19-3-2021, wherein this court held that tenant is estopped from challenging status of landlord claiming the gift deed to be sham transaction. 10. Counsel for defendant supported impugned judgments and relied upon Govindraju v. Mariamman [ (2005)2 SCC 500 ], wherein the Apex Court held that re-appreciation of evidence/ interference with findings of fact is permissible only when High Court comes to a conclusion that findings recorded were perverse i.e. based on misreading of evidence or based on no evidence; Christopher Barla v. Basudev Naik [ (2005)9 SCC 207 ], wherein the Apex Court held that finding of fact based on evidence on record did not deserve interference by High Court in second appeal; Reliance has also been placed on Dalip Singh v. Bhupinder Kaur [ (2018)3 SCC 677 ], wherein the Apex Court held that High Court erred in setting aside concurrent findings of both courts. A perusal of Section 13(1(f) of the Rent Act shows that the denial of title has been defined as under:- "The tenant has (i) renounced his character as such, or (ii) denied the title of the landlord, and (iii) the letter (i.e. landlord) has not (a) waived his right or (b) condoned the conduct of the tenant" In view of aforesaid provisions it is clear that the tenant has not renounced his character nor he denied the title of the landlord and simply sought clarification about the ownership of landlord in view of two contradictory notices dated 29-9-1984 sent by plaintiff and Vijendra Kumar. 11. This court on careful perusal of reply notice dated 5-12-1984 (Ex.3) as well as fact findings record by two courts below in relation to this notice, finds that defendant had sought clarification/ explanation from plaintiff as to whether he purchased the rented shop from real owner/ landlord of the rented shop. The defendant never disputed his character and status as tenant in rented shop. The defendant never disputed his character and status as tenant in rented shop. In written statement the defendant merely asked the plaintiff that since rented shop was belonging to Devalal, who transferred rented shop to M/s.Vijendra and Vijendra, and plaintiff and Vijendra Kumar through their respective notices dated 29-9- 1984 have not referred the fact that partnership firm M/s.Vijendra and Vijendra has transferred rented shop to plaintiff, rather a contradictory information has been given that rented shop has been sold/ transferred by Vijendra Kumar. Even the sale deed was not sent to the defendant. Due to such confusion, the defendant has given reply notice dated 5-12-1984 in bonafide manner asking to clarify the fact that from whom the plaintiff has purchased the rented shop. On perusal of written statement, as a whole, this court finds that defendant has not categorically disputed or denied the title of plaintiff. Since in the present eviction suit ground of default was also involved, the trial court determined provisional rent under Section 13(3) of the Rent Act, the defendant followed the order in letter and spirit and deposited rent in the name of plaintiff. Further the rent deposited by defendant under Section 19A of the Rent Act in the court, has been withdrawn by plaintiff, to which defendant agreed and did not object. It is not in dispute that defendant never disputed his status as tenant in the rented shop. It appears that since plaintiff derived his title/ ownership of rented shop from erstwhile landlord, but it was not clarified that he purchased the rented shop from partnership firm M/s.Vijendra and Vijendra, nor copy of sale deed was supplied to defendant, nor this fact was specifically narrated in both notices dated 29-9-1984, therefore, the defendant fell in confusion and dilemma about the ownership of rented shop of plaintiff. It is settled proposition of law that if plaintiff claims relationship of landlord and tenant on the basis of derivative title, the defendant tenant may ask to clarify the derivative title. The intention of defendant in asking plaintiff to prove his derivative title does not seems to be malafide and in given facts and circumstances of the case it appears to be bonafide. Such proposition of law has been expounded by the Hon’ble Supreme Court in Bismillah Be v. Majeed Shah (supra) in para No.25, which reads thus:- "25. The intention of defendant in asking plaintiff to prove his derivative title does not seems to be malafide and in given facts and circumstances of the case it appears to be bonafide. Such proposition of law has been expounded by the Hon’ble Supreme Court in Bismillah Be v. Majeed Shah (supra) in para No.25, which reads thus:- "25. Law relating to derivative title of the landlord (lessor) and challenge, if made, to such title by the tenant (lessee) during subsistence of tenancy in relation to demised property is fairly well settled. Though by virtue of Section 116 of the Evidence Act, 1872, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/ lessee is entitled to challenge the derivative title of an Assignee/ Vendee of the original landlord (lessor) of the demised property in an action brought by the Assignee/ Vendee against the tenant for his eviction from the demised property under the Rent Laws. This right of a tenant is, however, subject to one caveat that the tenant/ lessee has not attorned to the Assignee/ Vendee. In other words, if the tenant/ lessee pays rent to the Assignee/ Vendee of the tenanted property then it results in creation of an attornment between the parties which, in turn, deprives the tenant/ lessee to challenge the derivative title of an Assignee/ Vendee in the proceedings." In case of J.J. Lal Pvt Ltd. v. M.R. Murli [ (2002)3 SCC 98 ] the Apex Court held that in case of eviction on ground of denial of title by tenant the burden remains on landlord to prove the same and that such denial by tenant was not bonafide. In case of Sheela v. Firm Prahlad Rai Prem Prakash [ (2002)3 SCC 375 ] the Apex Court held that if the tenant makes a bonafide question as to how title came to vest in landlord, the same cannot be treated to be as denial of title. In such factual and legal scenario, this court finds that both courts below have not committed any illegality or jurisdictional error in declining to grant decree for eviction in favour of plaintiff on ground of denial of title against the defendant. 12. In such factual and legal scenario, this court finds that both courts below have not committed any illegality or jurisdictional error in declining to grant decree for eviction in favour of plaintiff on ground of denial of title against the defendant. 12. As far as substantial questions of law (i), (ii), (iii), (iv) and (v) as framed by this court are concerned, all stand answered in negative against the appellant according to discussion made herein above. In facts of the case, it is not a case where Vijendra Kumar issued notice dated 29-9-1984 disclosing himself to be partner of M/s. Vijendra and Vijendra. There is no material available on record to show that at any point of time, either on behalf of partnership firm M/s. Vijendra and Vijendra or its any partner in that capacity informed the defendant about the sale of rented shop to plaintiff. Indisputably, the defendant was tenant of partnership firm. In absence of such information from and on behalf of the partnership firm, rather a contradictory information by the plaintiff and Vijendra Kumar, through their respective notices dated 29-9-1984, does not give rise to substantial question of law No.1. According to legal proposition doubting derivative title of appellant landlord by the tenant and asking for clarification that too without renouncing his status as tenant may not be treated as denial of title. The principle of estoppal enunciated under Section 116 of the Evidence Act, has no application in the situation involved in the present case. Since the defendant tenant did not renounce his status as tenant and agreed for the provisional determination as also agreed for withdrawal of rent by the appellant, therefore, the issue of default and effect of withdrawal of rent by appellant landlord do not adversely affect the defence of tenant that he never denied the derivative title of appellant intentionally or deliberately, rather such conduct tenant substantiate his defence accepting the appellant as landlord. Thus, other substantial questions of law also stand answered against the appellant. Consequence is that the appellant is not entitled to evict the respondent tenant on the ground of denial of title, as the required ingredients in law as per Section 13(1)(f) of the Rent Act are not satisfied in the present case. Thus, other substantial questions of law also stand answered against the appellant. Consequence is that the appellant is not entitled to evict the respondent tenant on the ground of denial of title, as the required ingredients in law as per Section 13(1)(f) of the Rent Act are not satisfied in the present case. The Apex Court in Damodar LaL v. Sohan Devi [ (2016)3 SCC 78 ] held that "even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. The safest approach on perversity is the classic approach on the reasonable man’s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity." When two courts below, on appreciation of evidence of both parties and on close scrutiny of respective pleadings and intention of defendants, have declined to pass a decree for eviction on ground to denial of title, this court while exercising powers under Section 100 CPC, does not think it just and proper to re- appreciate evidence as a whole to draw a different conclusion than courts below. Findings of fact is the province of courts below, and once the same are based on appreciation of evidence well within their jurisdiction and do not suffer from any perversity, no interference is required by the High Court under Section 100 CPC. In such view of the matter, substantial questions of law have been considered and answered in negative against the appellant. 13. Both courts below have come to a concurrent finding that there was no denial of title by tenant and the said issue has been rightly decided against plaintiff. Counsel for plaintiff has not been able to prove their case or to point out any perversity or make out any substantial question of law in respect of the judgments passed by the trial court as also the appellate court. The conclusions of courts below are based on findings of fact. Counsel for plaintiff has not been able to prove their case or to point out any perversity or make out any substantial question of law in respect of the judgments passed by the trial court as also the appellate court. The conclusions of courts below are based on findings of fact. The Hon’ble Supreme Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [ (1999)3 SCC 722 ] has held that the concurrent findings of facts even if erroneous cannot be disturbed by the High Court in exercise of the powers under section 100 CPC. This proposition is well established. Findings of fact based on appreciation of evidence are the province of the trial court and the first appellate court. 14. In case of Umerkhan v. Bismillabi [ (2011)9 SCC 684 ] Hon’ble Supreme Court has propounded that if a second appeal is admitted on substantial question of law, while hearing second appeal finally, can re-frame substantial question of law or can frame substantial question of law afresh or even can hold that no substantial question of law involved, but the High Court cannot exercise its jurisdiction of Section 100 CPC without formulating substantial question of law. 15. In facts and circumstances of the case the judgments relied upon by appellant plaintiff Vinay Eknath Lad v. Chiu Mao Che (supra), Mukesh Kumar Garg v. Naveen Bansal, (supra) and Bismillah Be v. Majeed Shah (supra) as argued are not applicable to facts of the instant case and are not of any help to appellants. Rather the case of Bismillah Be v. Majeed Shah (supra) supports the case of defendant wherein it was held that the action of tenant to challenge derivative title of landlord cannot be treated as denial of title. 16. Consequently, the second appeal is without any force and the same stands dismissed. 17. Stay application and any other pending application(s), if any, also stand(s) disposed of. 18. Record of courts below be sent back forthwith.