Lachman Singh vs Sohan Lal

This is a defendants' appeal, wherein plaintiff has filed crossobjections. By means of judgement and decree dated: 30.01.1984 1st: Additional

District Judge, Jammu while party allowing the appeal has passed a decree for Rs. 600/ as arrears of rent in favour of the plaintiff and against the

defendant, but has declined the claim of possession of the shops in question for which suit had been filed. In this judgement parties are being

referred to as plaintiff and defendant.

Facts giving rise to this case are that suit was filed by the plaintiff wherein he prayed for the relief of possession of two shops as well as for

recovery of arrears of rent regarding these two shops which were situate at Talimorh Darspur, Tehsil R. S. Pura. Case of the plaintiff further was

that he is the owner of the two shops which he had let out to the defendant on a rental of Rs. 10/ PM each. Since respondent was in arrears of rent

for 21/2 years from 1968 to March 1971 and his tenancy having been lawfully determined before filing this suit the plaintiff was entitled to

possession and arrears of rent. Plaintiff also claimed to have sent notice to the defendant in that behalf. Defendant on the other hand in his reply to

the notice neither admitted the title of the plaintiff qua the shops in question nor did he care to pay the rent as claimed in the notice as according to

him there was no liability to pay anything. In fact he while repudiating the claim of the plaintiff regarding the shops in question pleaded himself to be

the owner of such shops and this compelled the plaintiff to file the suit. In the suit defendant reiterated his aforesaid stand and further pleaded that

the property described in the notice was different from the one for which suit had been filed by him. Legality as well as validity of the notice was

also questioned by the defendant.

On the aforesaid pleadings, parties went to trial on the following issues:

Whether the defendant is the tenant of the plaintiff relating to suit shops on the payment of monthly rent of Rs. 20/? OPP

In case issue No. 1 is proved how much rent is due against the defendant ? OPP

In case issue No. 1 is proved whether the notice to quit is not legal ? OPP

Relief, OPP

Trial Court on conclusion found issue No. 1 against the plaintiff and as a consequence thereof other issues were also decided against him,

therefore suit was dismissed.

Plaintiff feeling aggrieved by the said judgement and decree of the trial court dated 10.03.1975 preferred an appeal before the learned appellate

court below, who by means of the impugned judgment and decree has partly allowed the same and has decreed the claim so far as it related to

arrears of rent, but at the same time held that since notice was defective, therefore, claim of possession was declined. It is in this background that

the defendant has filed the appeal so far the decree for payment of rent is against him and plaintiff has filed crossobjections in this appeal so far as

his claim for possession has been refused.

In order to properly appreciate the submissions of the learned counsel for the parties, evidence and other facts existing on the file of the case may

also be briefly taken note of. Admittedly there is no written agreement on record to establish creation of tenancy in favour of defendant. There is

only oral evidence of creation of tenancy where under the defendant had taken the shops in question on a rental of Rs. 10/ per mensum for each of

the shops from the plaintiff. Evidence in this behalf consists of the statement of plaintiff himself, besides that Yog Raj, Chuni Lal and Ashwani

Kumar, besides these witnesses plaintiff had examined a few more witnesses in support of his claim for proving the tenancy having been created in

favour of the defendant. In addition to this EXPR is the copy of Khasra Girdwari. PWs Chuni Lal and Yog Raj have pledged their oath and have

supported the case of the plaintiff in its entirity. As per statement of these three witnesses, shops in question were taken by the defendant and at

such time as per Yog Raj PW no rent deed or receipt of payment of six months advance rent was executed. After receipt of this advance rent

possession was delivered by the plaintiff to the defendant. So far as the claim of plaintiff that shops in question have been constructed by him, this

fact is supported from the statement of PW Ashwani Kumar. There is another witness Gurari Lal (Murari Lal ?) who states that is was the

defendant who informed this PW regarding latter's have been taken on rent the shops from plaintiff. Reference is not being made to other witnesses

examined on behalf of the plaintiff, as they are not of any significance for determining the controversy in suit. Besides this document EXPR i.e.

Khasra Girdwari indicates that plaintiff is the owner of the shops in question and defendant is recorded tenant under him. On the other hand there is

the statement of the defendant, and his other witnesses examined in opposition to the case set up by the plaintiff as well as in support of his claim of

property belonging to him.

Mr. Rupinder Singh, learned counsel appearing for the defendant has forcefully urged that the suit was not maintainable since the property

covered in the plaint was different from the one described in the notice, thus according to him there having been no notice issued determining the

tenancy in accordance with law to the defendant, his appeal deserves to be allowed and consequently decree of the trial court be upheld. It was

further pointed out by Shri Singh that property described in the para No. 1 of the plaint is not connected much less proved to be belonging to the

plaintiff as if stood over government land which fact is even otherwise made out from the entry made in the column of ownership in Khasra

Girdwari EXPR. No order of allotment has been produced by the plaintiff to sustain his claim made in the plaint, thus according to Mr. Singh that

appellate court had fallen into error while decreeing the claim of the plaintiff qua the arrears of rent upto March, 1971 i.e. for 2 1/2 years. All these

pleas have been controverted by Shri R. P. Bakshi, learned counsel for the plaintiff who had submitted that tenancy in the instant case stood

determined by forfeiture under section 111(g) (2) of the Jammu and Kashmir Transfers of Property Act, because on his own showing, the

defendant had renounced his character as tenant, not only this but at the same time he had claimed title in himself of the shops in question: That

being so, according to Mr. Bakshi no notice was required to be issued by the plaintiff to defendant determining his tenancy. While supporting his

crossobjections, Shri Bakshi further urged that once the title of the plaintiff was accepted by the first appellate court to receive rent, it presupposed

relationship of landlord and tenant between the parties to the suit. There being clear cut disclaimer in the instant case not only during the pendancy

of the suit in his written statement but even before filing of suit when defendant repudiated the title of the plaintiff and claimed it in himself, no notice

injaw was required to be issued to him, thus Shri Bakshi urged that While dismissing the appeal of the defendant, his crossobjections may be

allowed and a decree for possession needs to be passed in favour of the plaintiff and against the defendant.

So far the plea on behalf of the defendant that property in suit is not connected with the notice which had been issued by the plaintiff under section

106 of the J and K Transfer of Property Act is concerned, ft has no merit. Reason being that plaintiff does not admit that either the property which

was described in the notice or regarding which suit has been filed to be owned by the plaintiff and that the farmer being a tenant under the latter.

On the other hand consistent stand of the defendant is that not only that the property does not belong to the plaintiff but it in fact belongs to the

defendant. That being so the plea urged in this behalf has no merit and the same is accordingly rejected.

Now coming as to whether the tenancy stands established in the present case or not. As already noticed, the evidence of the defendant examined

by him during the course of trial is very general in nature and further it does not inspire confidence when it is weighed visavis the evidence examined

on behalf of the plaintiff. Here it may also be worthwhile to notice that under the law of the Contract, agreement can be oral also. That being so the

reasoning given by the trial court and which has been rejected by the lower appellate court, rightly in the considered opinion of this court deserves

to be upheld and it is ordered accordingly.

Here reference needs to be made regarding disclaimer as a consequence whereof the tenancy of the defendant stood determined by operation of

law i.e. Section 111 (g) (2) of the Act supra. It may be appropriate to notice that the principles embodied in section 111 (g) are of justice, equity

and good conscience. It is now well settled that the disclaimer in law means repudiation by a party of his being a tenant in either case i.e. either by

setting up a little in himself or in another person.

Besides this disclaimer can be verbal as well as written. Only thing that has to be there is that it must result in directly repelling of the relationship of

landlord lessor and lessee. In addition to this disclaimer can be by putting up a specific claim to remain in possession of the property for a reason

other than that of relationship of landlord and tenant, necessary implication whereof is the repudiation of the character of lessee and lessor.

Another illustration of disclaimer can be put in this way. A lessee conveys the leased property to a third party and in the deed describes himself to

be the owner of the said property. This clearly indicates that lessee has renounced his character as such by describing himself as an owner. On

having come to know, the lessorlandlord issued notice determining the tenancy as well to quit, which was questioned in proceedings being invalid.

In such

a situation it is a clear cut case of disclaimer resulting in determination of tenancy due to forfeiture in accordance with section 111 supra.

In addition to this even in a case where a lessee disputes the title of the lessor, still it is a case of determination of the lease although the former

continues to remain in possession as also paying what according to him is a rent or in any case he was willing to pay the same. In this situation the

money paid by the lessor would be towards damages for use and occupation. Still it remains a disclaimer because he claims to be a tenant of a

person other than a lessor.

As in the present case when a plea is set up by the tenant in his pleadings filed during the course of trial in the suit for possession where he denies

his status as a lessee and that of the lessor as such it being a case of clear cut disclaimer is squarely covered by section 111 (g) (2) supra and thus

no notice determining the tenancy of such a lessee is required. For taking this view I am supported by a judgement of Himachal Pradesh High

Court reported in AIR 1974 HP 22 ""Shiv Prashad Vs. Sheela Rani."" It may also be appropriate to mention here that in the context of disclaimer

that in law denial of the title of the landlord by the tenant is clear and is made out in clear terms. Thus it would effect the interest of the landlord to

his detriment. That being so the landlord would be well advised to take it a case of determination of tenancy by operation of law and in such an

event no notice to quit is required to be issued. At the risk of repetition it may be noticed here that the receipt of notice is admitted as also the same

having been knowledged by the defendant. The plaintiff has proved both these documents on record. In addition to this written statement of the

defendant is there. In the face of these facts which are there on the record of this case, it hardly needs to be emphasized that plaintiff had clearly

proved his title as landlord of the premises in question regarding which he had filed the suit in the court below and thus the decree for rent had been

rightly passed by the first appellate court in favour of the plaintiff and against the defendant. As a consequence of this finding CSA No. 25/84

Lachman Singh Vs. Sohan Lai, has no merit and the same is dismissed without any order as to costs. To be fair to Mr. Singh it may be appropriate

to point out that he placed reliance on few precedents viz: AIR 1996 P and H 120 ""Joginder Singh Vs. Nidhan Singh, on the question that where

the first appellate court has wrongly reversed the finding of the trial court therefore, this court is competent to reexamine the whole matter. Suffice it

to say that in View of the discussion hereinabove and on appreciation of evidence, the finding those have been arrived at by the appellate court

below, and this court being satisfied that there is nothing wrong with the finding recorded by the appellate court below in that behalf as such no

benefit can be derived by Sh. Singh from this judgement.

Now coming to crossobjections No. 44/84 filed by the plaintiff against that part of the decree whereby his claim for possession had been

turned down. Since this court has taken the view that this is the clear cut case of disclaimer on the part of the defendant Not only in his written

statement but even before the suit was filed when he admittedly sent the reply, and also during the course of the hearing of this appeal as well as the

crossobjections, it is felt that the plaintiff had exercised his option to take possession of the tenanted premises by filing the suit. From the facts of

this case it is also evident that consistent stand of the defendant before filing the suit as well as after filing of the suit had been setting up of an

independent title in his favour as well as repudiating the title of the plaintiff as such no notice was required determining his tenancy and plaintiff was

entitled to the relief of possession prayed for by him because tenancy stood automatically determined by operation of law i.e. Section 111 (g) (2)

of the J and K Transfers of Property Act.

In the face of the aforesaid findings recorded in favour of the plaintiff, cross objections No. 44/84 deserve to be allowed and it is ordered

accordingly.

As an upshort of the aforesaid discussion, the decree passed by the first appellate court, is modified consequently the suit of the plaintiff is decreed

in its entirety including the relief of possession which was declined by the firse appellate court and it is ordered accordingly. Registry will draw the

decree sheet. No costs.