Laxmi Bai and another vs Yogesh Kumar Golchha

Manindra Mohan Srivastava, J. - This appeal is directed against the impugned judgment dated 12th January, 1999 passed by the Additional District Judge, Dhamtari in Civil Appeal No. 16-A/1995 by which the decree of eviction passed in favour of the landlord-plaintiff and against appellant-defendant has been affirmed and appeal dismissed.

It is relevant to note that the plaintiff-land-lord prayed for and was granted decree of eviction on the ground of bona fide need of starting his own business, under Section 121 (f) of the M.P. Accommodation Control Act, 1961 (for short, hereinafter referred to as "the Act of 1961").

Respondent-landlord filed a suit for eviction against the appellant tenant on the plea inter alia that the disputed shop which earlier constituted joint family property of the landlord was received by the landlord as his sh and re under an oral partition effected on 1.4.1991. An information of the partition and landlord having become the owner by virtue of partition in respect of disputed shop was given to the tenant vide notice dated 24.6.1991 (Ex. P-1) and thereafter on 14.10.1991, further rent of three months was given by way of cheque by the defendant-tenant to the plaintiff and thereby accepted the plaintiff as the owner. On 12.12.1991, a notice was given for eviction on the ground of plaintiffs own need and at that stage, the defendant-tenant denied ownership and title of the plaintiff over the disputed shop. On these material pleadings, suit for eviction was instituted.

Defendant-tenant resisted the claim on the pleading that the land in dispute is the separate property of Ranidan. He denied property in dispute being joint family property and acquisition of ownership by the plaintiff by way of so called partition and stated that he is the tenant of Ranidan only. It was also pleaded that rent was being paid to plaintiff under the instructions of original landlord Ranidan, which does not amount to admitting title and ownership of the plaintiff. Family partition was denied. It was stated that other shops of Ranidan are vacant and in their possession. Partition is sham one and only pleaded to somehow obtain the eviction as number of other shops are lying vacant.

Learned trial Court decreed the suit holding that plaintiff is the owner of the tenanted premises and the defendant is his tenant. It was also held that the plaintiff bona fide requires the disputed shop to run his business as he has no other suitable accommodation in his possession in the city. It was also held that by denying the title of the plaintiff, defendant has committed act which is prejudicial to the interest of the plaintiff and, therefore, the plaintiff is also entitled to decree under Section 12 (J) (c) of the Act of 1961.

Upon appeal, learned lower appellate Court also concurred with the finding of the trial Court leading to dismissal of appeal.

This appeal was admitted on 7.12.1999 on following three substantial question of law:

"1. Whether the alleged oral partition dated 1.4.1991 between the plaintiff and Ranidan was not bona fide and was a sham transaction to overcome the rigors of the M.P. Accommodation Control Act, 1961, S.K. Sattar v. Gundoppa, (1996) 6 SCC 373.

Whether the two shops which are vacant and which are said to have been allotted to the plaintiff''s father and mother are in reality the shops belonging to the joint Hindu Family headed by Ranidan and these shops can be held as the plaintiff''s "own" within the meaning of Section 12 (1) (f) of the Act, to meet his own requirement?

Whether the assertion of the defendant that the suit shop still belongs to Ranidan on the facts and in the circumstances of the case is such that it can be held to be the denial of title of the plaintiff rendering him liable to eviction under Section 12 (1) (c) of the Act?"

Learned counsel for the appellant-defendant argued that the plea of partition has been set up by the plaintiff only to evict the tenant and the alleged oral partition dated 1.4.1991 is not at all bona fide and is in fact a sham transaction, only to overcome the rigors of the Act of 1961, because Ranidan, the original landlord has number of other vacant accommodation suitable for developing his business but only in order to get the tenant evicted as there is a planning to have an access to the plots behind the disputed shop for development of a shopping complex that a story of sham partition has been developed and suit got filed by Yogesh, son of Ranidan, whereas the plaintiff has not proved partition by clinching evidence. The plaintiff has also not led any evidence to prove that the parties acted towards so called partition. No steps were taken to get the names separated by way of mutation proceedings. That is why there is no documentary evidence evidencing partition amongst the plaintiff and his father and other members of the family. It is also submitted that the plaintiff, in order to somehow get eviction decree, has produced false evidence before the Court in which the learned lower appellate Court has already issued direction for holding inquiry and further steps in the matter.

The next contention is that the property in dispute is part of joint family property received by Ranidan by way of partition amongst his mother and brother Fulchand, after demise of his father. What therefore was received by Ranidan became his separate property and no longer remained ancestral property in his hand so that it could be partitioned.

The next contention of learned counsel for the appellant is that even as per the pleading of plaintiff, there are number of vacant shops available in front of as also around the disputed shop, the plaintiff is also having interest in other shops, being member of the joint family, would be treated as owner of other shops and, therefore, the need of the plaintiff is not bona fide because the two shops which are lying vacant, said to have been allotted to the plaintiffs father and mother, are, in fact, shops belonging to the joint Hindu family headed by Ranidan. Therefore, these shops can be held as plaintiff "own" within the meaning of Section 12 (1) (f) of the Act of 1961 to meet his own requirement. Therefore, there is no bona fide need of the plaintiff.

The last contention of learned counsel for the appellant is that the appellant tenant was not inducted as tenant by the plaintiff. He was paying rent to Ranidan and he was the tenant of Ranidan only. A bona fide assertion of the appellant that the partition is a sham one and there has been no partition and that Ranidan continues to be the landlord cannot be said to be an act prejudicial to the interest of the plaintiff and, therefore, no decree of eviction could be passed on the ground of denial/disclaimer of plaintiff title within the meaning of Section 12 (1) (c) of the Act of 1961. In support of his contention, learned counsel for the appellant relied upon the judgments in the cases of Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 SCC 373; Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors., (1986) 3 SCC 567; Sheela and Ors. v. Firm Prahlad Rai Prem Prakash, AIR 2002 SC 1264 and Keshar Bai v. Chhuntllal, AIR 2014 SC 1394.

Per contra, learned counsel for the respondent contended that the partition being a family affair, in the absence of there being any dispute with regard to partition raised by any of the members of the family including parties to the partition and the plaintiff, his father and his uncle all having supported the story of partition, it is none of the business of the defendant-tenant to dispute the factum of partition. The appellant/tenant is estopped from denying the title of the plaintiff landlord because when notice dated 24.6.1991 (Ex.P.1) of plaintiff acquiring ownership by way of partition was given to the tenant, the tenant did not raise any dispute but admitted the plaintiff as his landlord and started paying rent to him through cheque. Another notice of the even date (Ex.P-2) was also given to the defendant tenant by plaintiff''s father namely Ranidan, which also was never disputed and thereafter the tenant started paying rent to the plaintiff. It was only when a notice of evict ion dated 12.12.1991 was given to the tenant hat he started disputing the title of the plaintiff. The plaintiff had given due notice of this act to the Municipal Authority and in the income tax return, the disputed shop has been shown to be of his own shop and even his father in those assessment proceedings registered objection that the property in dispute should be treated as the property of Yogesh/plaintiff. Therefore, challenge to the partition is liable to be dismissed.

Learned counsel for the respondents further replied that as there has been a partition, the other vacant shops which did not fall to the share of respondent-plaintiff cannot be said to be his "own" within the meaning of Section 12 (1) (f) of the Act of 1961. Those shops have fallen to the share of his father and, therefore, once partition has taken place on 1-4-1991, the other shops do not continue as joint family property. Therefore, there is no occasion to treat other vacant shops as plaintiffs "own" shop within the meaning of Section 12 (1) (f) of the Act of 1961.

Lastly it is submitted that the defendant-tenant did not raise any dispute after receipt of notice of the plaintiff and plaintiffs father that in the family partition, shop has been given to the plaintiff as his share and that, thereafter, the plaintiff has become the owner of the shop and the tenant should pay the rent to him. Thereafter, the tenant started paying rent also to the plaintiff. However, the act of denying title of the plaintiff only when notice of eviction given clearly amounts to an act of denial/disclaimer of title. Therefore, eviction on this? ground does not warrant any interference.

It was also submitted that the property in the hands of Ranidan was the ancestral property which was received by him along with his brother after death of their father. Further partition had taken place between him and his brother Fulchand in the year 1974 when plaintiff Yogesh was already born, though a minor. It being a coparcenary property, Yogesh acquired interest by birth. Therefore, it was available for being partitioned because at the time of partition in 1974, plaintiffs father Ranidan took his share which included share of the plaintiff also, which was later on subjected to partition on 1.4.1991. In support of his submissions, learned counsel for the respondents relied upon the judgments in the cases of Santosh Kumar Jain v. Shambhulal Krishna Kumar Suhane, AIR 1993 MP 46; Smt. Shanti Sharma and Ors. v. Smt. Ved Prabha and Ors., AIR 1987 SC 2028; Ku. Maya Sharma and Ors. v. Smt. Shashi Goel and Ors., (2000) 2 MPHT 250; Smt. Kanta Goel v. B.P. Pathak, AIR 1977 SC 1599; Pal Singh v. Sunder Singh (dead) by LRs. and Ors., AIR 1989 SC 758; Tej Bhan Madan v. II Additional District Judge and Ors., AIR 1988 SC 1413; Balveer Singh v. Kishanlal, AIR 1988 MP 227 and Secretary Indian Postal Department and Anr. v. Shankarlal and Anr., 1998 MPACJ 114.

I have considered the rival submissions made by learned counsel for the parties and perused the records of the Courts below.

On the first substantial question of law, the pleadings and evidence on record reveal that the respondent-plaintiff filed suit for eviction on specific pleading that the shop in dispute was part of joint family property and under an oral partition dated 1.4.1991, plaintiff received the shop as his share from the karta of joint family. In the written statement, defendant-tenant denied the disputed shop as part of joint family property, but stated that it was separate property or self acquired property of Ranidan. He also denied Ranidan as karta of joint family. It was also pleaded that oral partition is bogus and sham. According to defendant, as pleaded in paras-20 and 21 of his written statement, 4 shops including disputed shop are self acquired property purchased by Ranidan Golcha, whereas in the township of Dhamtari, there are other ancestral property including house and cloth shop of Ranidan. Though it has been pleaded that plaintiff has other shops and houses in township of Dhamtari which is joint family property in which he can run his business, no evidence has been led to prove when and how plaintiff acquired his own property. Therefore, in the light of pleadings of the parties, it has to be examined whether it is a case of sham partition as alleged by the defendant.

Plaintiff Yogesh (P.W. 1) has clearly deposed that a partition has taken place between him and his father on 1.4.1991. According to him, this partition has taken place amongst his father, mother, himself and his younger brother and after partition, they all have taken their separate share. He has clearly deposed that he had received the shop in dispute in partition and it was an oral partition. He has further deposed that after partition, he had given a notice dated 24.6.1991 (Ex.P-1) to the defendant. He has further stated that similar notice was also sent by his father to the defendant vide Ex.P-2 dated 24.6.1991. He has also placed on record postal receipt Ex.P-3. He has clearly stated in his evidence that out of 4 shops, one shop has been given to his brother-Rajesh, shop of co-operative bank has been given to his father Ranidan, shop of Chandrapal has been given to his mother and shop on which defendant is the tenant has been given to him as his share. He has further deposed that after sending notice of partition to the defendant, the defendant sent him letter (Ex.P-4) along with a cheque issued in his name. The envelope of the said letter (Ex.P-5) has also been proved. Thereafter, on 14.10.1991, another letter (Ex.P-6) signed by defendant was sent to him along with a cheque issued in his name. In the cross-examination, receipt of notice Exs.P-1 and P-2 and sending a letter Exs.P.4 and P-6 have not been controverted by the defendant.

In the notice Ex.P-1, it has been clearly indicated that a partition of joint family has taken place and on the basis of oral partition, shop in possession of defendant has been given to die plaintiff as his share and therefore the plaintiff has become the owner of the shop and as such he should contact the plaintiff. The defendant did not raise any dispute to this. Similar letter (Ex.P-2) of even date was given by Ranidan (P.W.2), the father of the plaintiff, to die defendant that upon partition shop in his possession has been given to Yogesh in his share and, therefore, now Yogesh is the owner of the shop and therefore, he should contact Yogesh only in connection with that shop. To both these letters, the defendant did not raise any dispute but on the contrary vide his letters (Exs.P-4 and P-6) sent rent for the period from 1st April, 1991 to 30th June, 1991 of Rs. 420/- vide cheque issued in the name of the plaintiff and in respect of the period of 3 months from July, 1991 to September, 1991 of Rs. 412/- issued in favour of the plaintiff. These facts have not been substantially disputed by the tenant. The contents of letter (Exs-4 and P-6) clearly prove that tenant did not raise any dispute regarding the partition and accepted and admitted not only the partition but also plaintiff as his landlord and owner and started paying rent to him by issuing cheque in his favour.

It is beyond all comprehension as to how with aforesaid clear admission and conduct, the appellant-tenant could dispute the factum of partition.

Though legal position as adumbrated by the Supreme Court in the case of Sk. Sattar Sk. Mohd. Choudhari, AIR 1997 SC 998 (supra) that it is open for the tenant to dispute the bona fide and challenge the partition as sham one, at the same time, the degree of proof required to prove that the partition was sham one is very high and such an assertion of the tenant cannot be lightly accepted particularly when none of the family members including parties to the partition have not disputed and on the contrary, they have all fully supported the plea of partition. In the case of Santosh Kumar Jain, AIR 1993 MP 46 (supra), it was held that a tenant cannot deny title of landlord during continuance of tenancy and rule embodied in Section 116 of the Evidence Act is not limited to eviction by original landlord, in following words :

"5. The next important question requiring consideration of this Court is whether the respondent-defendant would be entitled to challenge the title of the appellants? That the appellant''s claim of their exclusive title is based on partition does not appear to be in dispute. The question however is whether the respondent is entitled to challenge this partition. If the tenant had not attorned and apportioned the rent as per partition deed, it might have been possible to hold that he is entitled to challenge the title as after attornment and division of rent, the legal position is different. The legal effect there of is that he became the tenant of two landlords in relation to their own sh;ire in the tenanted premises. The relationship of landlord and tenant between the parties therefore becomes direct and hence the respondent would be subjected to the same limitations as in relation to title of original landlord. This Court is therefore of the opinion that the respondent was not entitled to challenge the ownership of the appellants, after having acted upon the partition and dividing the tenancy.

Even then, it may be considered whether the partition was only for the purpose of this suit and was otherwise bogus. It has come in the evidence that the house in question was originally owned by Kanhaiyalal, father of Sumerchand Jain. Documents Exs. P-2, P-4, P-5, P-6 and P-7 sufficiently establish the same. Thereafter, it came to be owned by Sumerchand Jain. Sumerchand Jain as P.W. 2 has stated that Kanhaiyalal died in 1943 after which the suit house came into his possession. These facts would indicate that the house in question was a joint family house and hence the two plaintiffs would have a share in them from their birth. It is therefore reasonable to hold that Sumerchand had leased out the house as Karta of the family. In this view of the matter, the two plaintiffs would be co-owners and would be able to bring the suit even without the partition, particularly when Sumerchand Jain was not objecting to it. In this view of the matter the partition was legally not required. There is therefore no justification for the submission that the partition was effected to facilitate filing of the suit. Since this was really the main ground for submitting that the partition was bogus, it must be held groundless.

Then, the legal validity of the partition cannot be challenged by an outsider. It is well established that only members of the joint family or persons claiming through them cay challenge or dispute such a partition) Under the circumstances but for the provisions of Section 12(1)(f) of the Act, this question could not have been enquired into, in this suit. If the legal validity of the partition cannot be challenged by the respondent in a suit for the purpose, can it be allowed to be challenged indirectly and as a collateral issue in the suit. Those who are affected by the partition are happy about it and have taken no step to challenge its legality and validity. In such a situation, question for whose benefit the respondent challenges the legal validity of the partition would also arise. Then, the question of title is not required to be determined in a landlord tenant suit, and yet the provision casts burden on the landlord to prove that he is the owner. But, as held in the Supreme Court in Smt. Shanti Sharma''s case, AIR 1987 SC 2028 the word "owner" is not used in a sense of a person having absolute title over the tenanted premises but intends to ensure that the person obtaining eviction would really be able to occupy the tenanted premises which may not be possible if the landlord was not the owner of the tenanted premises. The word "landlord" has been broadly defined and includes an agent of the landlord. In such a situation a person without any ownership would not be relevant for eviction of a tenant. That is why the Supreme Court had held that it is the burden of the landlord to prove that he is the owner in the sense that he would be able to occupy the house after eviction. In such a legal situation, it would be reasonable to hold that though a tenant cannot convert an eviction suit into a suit challenging the title of his landlord, it is the obligation of the landlord to satisfy the Court before obtaining a decree for eviction that he was the owner of the tenanted premises, if this interpretation be correct, the right of respondent tenant to challenge the legal validity of the partition can be upheld but challenge to correctness or otherwise of the partition cannot be permitted. Under the circumstances his objection that the partition deed does not divide property in equal shares or that the partition was done without demand for partition by the sons or that the entire residential portion was allotted to the father, must be held beyond the scope of adjudication in this suit. They are the matters which concern the members of the joint family affected by the partition and if they themselves are not unhappily about it, the respondent has no business to plead for them."

Present is a case where the plaintiff-Yogesh (P.W. 1) has clearly stated regarding partition of joint family property amongst his father, mother himself and his younger brother. Ranidan (P.W.2), father of the plaintiff, has also supported the story of partition by clearly deposing in his evidence that shops were partitioned on 1.4.1991 amongst the wife and sons which was an oral one. He has clearly stated that shop occupied by the defendant was given in the share of plaintiff, shop of co-operative bank to his own share, shop of Chandrapal to the share of his wife and Popular Book Shop to his younger brother Rajesh. He has also stated that a notice of this partition was given by him to defendant vide Ex.P-2. Fulchand, uncle of plaintiff (PW.3) has also supported the story of partition amongst Ranidan and his two sons including the plaintiff. It is thus clear that the plaintiff and his father both have fully supported the partition on 1.4.1991 and that in that partition shop in dispute was allotted to plaintiff Yogesh.

Not only this, the defendant despite receipt of notice Exs.P-1 and P-2 did not raise any dispute with regard to factum of partition or allotment of disputed shop to the share of plaintiff Yogesh, but, on the contrary, he acquiesced in the same and started paying rent through cheque to Yogesh. Thus, by his clear conduct, defendant admitted Yogesh to be the owner of the shop and attorned his tenancy in the landlord ship of Yogesh.

It is only when the eviction notice dated 12.12.1991 Ex.P-7 was sent to the defendant that thereafter for the first time, in reply to notice, defendant started disputing and denying the title of the plaintiff vide his reply (Ex.P-19). Defendant''s letters Ex.P-4 and Ex.P-6 are clearly admission of title of the plaintiff as owner as also the conduct that the defendant-tenant initially did not dispute the partition, but took a summersault only when he received notice of eviction, Ex.7. Therefore, inevitable conclusion has to be that the plaintiff-defendant has failed to prove that it is a case of sham partition only to get the defendant evicted from the tenanted premises. The first substantial question of law is accordingly answered against the appellant-defendant and in favour of plaintiff-landlord.

During the course of argument, learned counsel for the appellant also sought to raise an issue that after death of father of Ranidan, his property devolved upon Ranidan and other successor including his mother and brother, which was later on partitioned amongst themselves in the year 1974. It was sought to be contended that the share of Ranidan which included disputed property (shop), became separate or self acquired property of Ranidan and it was not available for being partitioned amongst Ranidan and other members of his family including plaintiff-Yogesh.

The first substantial question of law as framed by this Court is not with regard to an issue of validity of partition but of factum of partition. The plaintiff specifically pleaded that the shop in dispute was a part of joint family property which was partitioned on 1.4.1991 amongst the members of family including the plaintiff. Ranidan, the father of the plaintiff, has also supported this averment. None of the members in the family have disputed this factual position that the property available in the hands of Ranidan which was partitioned on 1.4.1991 amongst Ranidan, his wife and two sons including plaintiff Yogesh is ancestral property. The defendant in his written statement stated that some of the property are joint family property, but the shop in dispute including three other shops, is a self acquired property of Ranidan. Ranidan having not stated so in his evidence and it being only a case set up by the defendant in his written statement, the burden was heavy on the defendant to prove, when, how and in what manner Ranidan acquired the property so as to impart it the colour and status of self acquired or septate property. This burden was very heavy because the plaintiff in the plaint and thereafter in his evidence as also plaintiffs father Ranidan and plaintiffs uncle Fulchand all have stated in their evidence that the shop in dispute was part of joint family property. The evidence on record clearly shows that before partition was effected between Ranidan and his brother Fulchand in the year 1974, plaintiff Yogesh was born in the family. In the absence of there being cogent and clinching evidence that the shop in dispute was self acquired property of Ranidan, the presumption of joint-ness is fortified from the averment made in the plaint and the evidence of Yogesh, the plaintiff, his father Ranidan and uncle Fulchand. Both the Courts below have recorded concurrent finding of fact on the issue that the properly in dispute i.e. shop was ancestral property. In the absence of there being any perversity or illegality, those concurrent finding of fact warrant no interference and it can be safely concluded that Yogesh, by birth, got interest in the ancestral property along with his father and therefore even though there was a partition between Fulchand and Ranidan and their mother in the year 1974, what was received in hand by Ranidan, included the share of the plaintiff Yogesh, who also got interest in it by birth, as he was born prior to 1974. Therefore, in the absence of there being any evidence of the property in dispute being separate property or self acquired property of Ranidan, this Court is not inclined to frame any additional substantial question of law at the final stage of decision of the appeal. Moreover, last but not the least, the defendant having not disputed the partition even after being served with the notices Exs.P-1 and P-2, having acquiesced in the title of plaintiff Yogesh and by his conduct of paying rent now to Yogesh after having received the notice of partition, is estopped to challenge the ownership of Yogesh over the property in dispute.

Having so held, there is no need for this Court to dwell into the second substantial question of law, decision on which would have been necessary had there been a finding that there was no partition. Once partition is held proved and the challenge to the same is found unsustainable in law, there being no other evidence that plaintiff was having any other suitable alternative and vacant accommodation in his possession in the township, the other two vacant shops which have been found to be given in share of other members of the family under partition dated 1.4.1991, cannot be said to be available in the ownership of the plaintiff. Those two vacant shops have been allotted to other family members upon partition held, on 1.4.1991.

The appellant-tenant has also suffered decree of eviction on the ground of denial/disclaimer of title of landlord/plaintiff. The question of law which has arisen for consideration before this Court is whether assertion of the defendant that the suit shop still belongs to Ranidan on the facts and in circumstances of the case is such that it can be held to be a denial of title of the plaintiff. To decide the aforesaid issue, it will be relevant to first examine the pleadings in this regard.

As against the plaintiffs plea that shop in dispute was part of the joint family property and upon partition, it has been received by the plaintiff as his share, the averment made by the defendant in his written statement is that the shop continues to be in the ownership of Ranidan as it is separate property and not part of joint family property. It has also been averred in para-7 of the written statement that the rent by way of cheque was sent to plaintiff only on the instructions of the landlord Ranidan and defendant never attorned the plaintiff either his landlord or the owner of the shop. In para-11 A of the written statement, defendant has averred that the defendant cannot be deprived from challenging the derivative title of the plaintiff. In para-13 also, it has been reiterated that the plaintiff is not the owner of the disputed shop. In para-22 of written statement, it has been averred that the shop is the property of Ranidan only and the plaintiff has no tittle in respect of the same unless the same is transferred in favour of the plaintiff by way of registered instrument of sale.

While deciding first substantial question of law, this Court has recorded a finding herein-above that after partition on 1.4.1991, both plaintiff Yogesh and his father Ranidan had sent notices immediately after partition to defendant vide notice Ex.P1 and Ex.P-2. Having received those notices, the defendant did not raise any dispute so as to show that he did not accept partition or stated it as a sham one or alleged that only in order to evict him, bogus story of partition is being projected. At that time, the defendant raised no dispute at all. On the contrary, the defendant acted upon those notices and started sending rent by way of cheque to Yogesh. This is quite clear from defendant letter Ex.P4 and Ex.P6. Contents of the said letters sent by the defendant himself clearly show that the defendant fully admitted the plaintiff as his landlord and thus started sending rent to him. It was only when the plaintiff sent eviction notice dated 12.12.1991 that the defendant started disputing title of the plaintiff which he had already attorned.

It is not a case where from the beginning, the defendant had been challenging the derivative title of the plaintiff. It is a case where the defendant attorned the plaintiff as owner and landlord after receipt of notice Exs.P-1 and P-2 and started paying rent to the plaintiff which is clear from the fact that cheques in the name of plaintiff was sent to the plaintiff. This act on the part of defendant, apparently constituted an act of attorment of not only tenancy and accepting the plaintiff as landlord but also the ownership. Having so attorned, the act of the defendant in disputing the title of the plaintiff cannot be ignored by saying that the defendant has bona fide raised the is sue of derivative title of the plaintiff. This was clearly a mala fide act of the defendant in denying title of the plaintiff, thereby doing an act to serious and utter prejudice of the title and ownership of the plaintiff. In a case where defendant attorns the tenancy and accepts the plaintiff as landlord but later, changes his stand and starts disputing title, it would be a clear case of denial or disclaimer of title warranting eviction of the plaintiff under Section 12 (1) (c) of the Act of 1961. In the case of Tej Bhan Madan, AIR 1989 SC 1413 (supra), concept of denial of title was explained by the Supreme Court as below :

"8. There can be a denial of the title of his landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of jus tertii. The stance of the appellant against the third respondent''s title was not on the ground of any infirmity or detect in the flow of title from Gopinath, but on the ground that the letter''s vendor-Mainavati herself had no title. The derivative title of the third Respondent is not denied on any ground other than the one that the vendor, Gopinath - to whom appellant had attorned - had himself no title, the implication of which is that if appellant could not have denied Gopinath''s title by virtue of the inhibitions of the attornment, he could not question third Respondent''s title either. Appellant did himself no service by this stand.

It must, accordingly, be held on both the aspects contended for by Shri Asthana that what appellant did, indeed, amounted to a denial of title and that appellant was precluded from doing so on the general principles of estoppel between landlord and tenant. The principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate.".......

The principle applicable in a case where tenant had admitted title of the other party as the landlord emanates from Section 116 of the Evidence Act. It was propounded by the Supreme Court in following words :

"5. The law as to the estoppel of a tenant under Section 116 of the Evidence Act is a recognition, and statutory assimilation, of the equitable principles underlying estoppel in relation to tenants. The section is not exhaustive of the law of estoppel. The section, inter alia, predicates that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, title to such property.

Referring to the reason underlying this branch of the doctrine of estoppel Marton B. said : (Cuthberton v. Irwing)

"This state of the law in reality tends to maintain right and justice and the enforcement of contracts which men enter into with each other - for so long as a lessee enjoys everything which his lease purports to grant how does it concern him what the title of the lessor....is?"

Shri Asthana may be right in his submission that a tenant who, without disclaiming his own position as tenant, however, seeks proof of title from an alleged assignee of the reversion cannot be held to have denied the landlord''s title. It may also be true that the estoppel of a tenant is primarily in relation to his landlord who had let him into possession and that, accordingly, such tenant is not precluded from questioning the alleged derivative title of a person claiming to be the successor to, or assignee of, the reversion, for want of proof of the vestitive facts on which the claim for attornment is based. The Rule of estoppel does not also preclude a tenant from contending that the landlord''s title has since terminated by transfer or otherwise or has been lost or defeated by title paramount. In English case law there was some authority for the proposition that the tenant was only estopped from denying his landlord''s title only if at the time he took the lease from the landlord he was not already in possession of the land.

In Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. the Judicial Committee noticed this contention thus :

"The defendant company contended before the High Court that the section only applies where it is shown that the landlord put the tenant into possession of the property, and that when a person already in possession of land becomes tenant to another there is no estoppels against his denying his lessor''s title...."

However, it was held:

"There is in English case law some authority for the view that a tenant is only estopped from denying his landlord''s title if at the time when he took his lease he was not already in possession of the land. But in Section 116, the Indian legislature has formulated no such condition. The words ''at the beginning of the tenancy'' give no ground for it. When a demise of land is made and acted on, when the tenant proceeds to occupy and enjoy under the grant, gets the shelter of the grantor''s title and the benefit of his convents, it is difficult to see why ''during the continuance of the tenancy'' he should be free of this form of estoppel. Tenant who has occupied but not entered'' is a difficult notion to thrust into Section 116 and quite impossible to find therein."

The aforesaid principle was again reiterated by the Supreme Court in its subsequent decision in the case of Pal Singh, AIR 1989 SC 758 (supra) as below :

"11. In Tej Bhan Madan v. II Additional District Judge this Court reiterated that there can be a denial of the title by the tenant of his landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of jus tertii. But the implication of the ground on which the denial of the title was made was that if the appellant tenant could not have denied the vendor''s title by virtue of the inhibitions of the attornment, he could not question the vendee''s title either. The tenant did himself no service by this stand. This Court reiterated that the principle that the tenant cannot deny the title of the landlord in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. The law is that the estoppel of a tenant under Section 116 of the Evidence Act was a recognition and statutory assimilation of the equitable principles underlying the estoppel in relation to tenants. In this case the rent had all along been collected by the respondent."

Learned counsel for the appellant has laid much stress on the Supreme Court''s decision in the case of Sheela and Ors., AIR (2002) SC 567 (supra) to draw support to his submission that mere challenge to the derivative title without claiming title by the tenant for himself would not amount to denial of title so as to warrant eviction under Section 12 (1) (c) of the Act of 1961. That was a case where the Court, on facts, found that the tenant was bona fide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect the tenant or to earn a protection made available to him by Rent Control Law but disowning his character of possession over the tenancy premises as tenant. The basis of finding in that case was based on the nature of plea raised by the plaintiff, which is clear from what has been held in para-17 of this judgment (Sheela and Ors.). In that case, the Supreme Court said that "it is the intention of the tenant, as culled out from the nature of plea raised by him which is determinative of its vulnerability". That was not a case where the tenant first attorned the tenancy, accepted landlord as the owner without raising any dispute to the partition and started paying rent to landlord and later on, upon service of notice of eviction, took somersault and started denying the title of the landlord. Therefore, the aforesaid judgment would be of no help to the appellant. The principles laid down in the decision of three Judges Bench in Tej Bhan (supra) was explained, drawing a line of distinction between the act of tenant in asking landlord to prove his title and act of malice on his part constituting denying/disclaimer of title, in following words:

"16. 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 the 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. II ADJ.) A denial of title which falls foul of the rule of estoppel contained in Section 116 of the 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; Kundan Mai v. Gurudutta and Raja Mohammad Amir Ahmad Khan) We may quote with advantage the law as stated by a Division Bench of the Calcutta High Court in Hatimullah v. Mohd. 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."

In a recent decision, in the case of Keshar Bai (AIR 2014 SC 1394) (supra), the meaning and import of disclaimer/denial of title by the tenant, providing a ground of eviction to landlord was considered on the factual back-drop that the tenant resisted the suit for eviction denying the title of the landlord. He denied that there was an attorment between the parties and also disputed landlord tenant relationship. It was claimed by the tenant that he was the tenant of earlier landlord. That was a case where the tenant was inducted in the tenanted premises by erstwhile landlord and after sale of the tenanted premises, vide registered sale deed, the tenant was informed by purchaser in title that the plaintiff is the new landlord and he should pay rent to new landlord. The defendant-tenant agreed to pay rent but failed to pay it which resulted in issuance of notice and filing of suit for eviction on the ground of bona fide need and other grounds. The tenant having agreed to pay rent, started denying the title of the successor in title. This, on the said factual premises, was held to be a clear denial of title of the landlord by the tenant. The legal position was examined by the Supreme Court after survey of number of earlier decisions including decision in the case of Sheela (supra). The discussion and conclusion are as follows:

"11. The first question that arises is : how denial of title falls within the ambit of Section 12(1)(c) of the M.R Act? Under Section 111(g)(2) of the Transfer of Property Act, 1882, the lease is determined by forfeiture, if the lessee denies the lessor''s title. While dealing with eviction suit, arising out of the M.P Act, in Devasahayam this Court has held that so just is the above rule that in various rent control legislation''s such a ground is recognised and incorporated as a ground for eviction of a tenant either expressly or impliedly within the net of an act injurious to the interest of the landlord. It is further held that denial of the landlord''s title or disclaimer of tenancy by the tenant is an act which is likely to affect adversely and substantially the interest of the landlord. It is, therefore, covered by Section 12(1)(c) of the M.P. Act. The following observations of this Court in Devasahayam are relevant:

"27. In Sheela v. Firm Prahlad Rai Prem Prakash whereupon Mr. Nageswara Rao placed strong reliance, Lahoti, J., as the learned Chief Justice then was, while construing the provisions of clause (c) of sub-section (1) of Section 12 of the M.P. Accommodation Control Act, 1961 observed :

''13. The law as to tenancy being determined by forfeiture by denial of the lessor''s title or disclaimer of the tenancy has been adopted in India from the law of England where it originated as a principle in consonance with justice, equity and good conscience. On enactment of the Transfer of Property Act, 1882. the same was incorporated into clause (g) of Section 111. So just is the rule that it has been held applicable even in the areas where the Transfer of Property Act does not apply. (See: Mohd. Amir Ahmad Khan v. Municipal Board of Sitapur) The principle of determination of tenancy by forfeiture consequent upon denial of the lessor''s title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognise such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. How ever, in various rent control legislation''s such a ground is recognised and incorporated as a ground for eviction of tenant either expressly or impliedly by bringing it within the net of an act injurious to the interest of the landlord on account of its mischievous content to prejudice adversely and substantially the interest of the landlord.''

In our opinion, denial of landlord''s tide 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 the 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 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 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) above-said. It is the intention of the tenant, as culled out from the nature of the plea raised by him, which is determinative of its vulnerability."

Having ascertained the legal position we will now state why we feel that the High Court is not right in disturbing the concurrent finding of fact that the respondent tenant denied the title of the appellant landlady.

There is a specific reference to the registered document under which the appellant purchased the suit building from the earlier landlord in the plaint. Yet, in the written statement the respondent denied the title of the appellant. We notice that there are several documents on record relating to the ownership of the appellant, apart from the registered sale deed, such as municipal tax receipts, ration card, etc. Yet, the respondent refused to acknowledge the appellant''s title. He denied it in his evidence. This is not a simple case of denial of derivative title by a person who did not know about the purchase of the building by the landlord. Even after going through the relevant documents relating to the appellant''s title the respondent feigned ignorance about it. The High Court has accepted that in his cross-examination the respondent has stated that he was not accepting the appellant as his landlady. The High Court has, however, gone on to say that by this piece of evidence no decree of eviction can be passed against the respondent under Section 12(1) (c) of the M.P. Act because the respondent will have no occasion to establish in what circumstances he denied the title of the appellant. The High Court has further held that the respondent was within the permissible limit in asking the appellant to produce documentary evidence about his title as a landlord. The High Court, in our opinion, fell into a grave error in drawing such a con-elusion. Even denial of a landlord''s title in the written statement can provide a ground for eviction of a tenant. It is also settled position in law that it is not necessary that the denial of title by the landlord should be anterior to the institution of eviction proceedings. This is so stated by this Court in Majati Subbarao v. P.V.K. Krishnarao (deceased) by LRs."-

The High Court has expressed that the respondent was justified in asking the appellant to produce the documents. Implicit in this observation is the High Court''s view that the respondent could have in an eviction suit got the title of the appellant finally adjudicated upon. There is a fallacy in this reasoning. In eviction proceedings the question of title to the properties in question may be incidentally gone into, but cannot be decided finally. Similar question fell for consideration of this Court in Bhogadi Kannababu. In that case it was argued that the landlady was not entitled to inherit the properties in question and hence could not maintain the application for eviction on the ground of default and sub-letting under the A.R. Tenancy Act. This Court referred to its decision in Tej Bhan Madan v. Addl. District Judge in which it was held that a tenant was precluded from denying the title of the landlady on the general principle of estoppel between the landlord and the tenant and that this principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. Section 116 of the Evidence Act is clearly applicable to such a situation. This Court held that even if the landlady was not entitled to inherit the properties in question, she could still maintain the application for eviction and the finding of fact recorded by the courts below in favour of the landlady, was not liable to be disturbed. The position on law was stated by this Court as under:

In this connection, we may also point out that in an eviction petition filed on the ground of sub-letting and default, the court needs to decide whether relationship of landlord and tenant exists and not the question of title to the properties in question, which may be incidentally gone into, but cannot be decided finally in the eviction proceeding."

In view of the above discussion, this Court has no hesitation in holding that the act of the appellant defendant clearly constituted the disclaimer/denial of title of the landlord warranting eviction of the tenant under Section 12 (1) (c) of the Act of 1961 also. Accordingly, the third substantial question of law is answered against the appellant tenant and in favour of landlord-plaintiff.

In the result, the appeal fails and is hereby dismissed.

Let a decree be drawn accordingly.