Om Prakash and Others vs Motia Devi and Others

Prakash Krishna, J.—The basic question involved in the present writ petition is whether the Respondents herein have denied the title of their landlord, the Petitioners and thus, are liable for eviction under the provisions of the U.P. Act No. 13 of 1972.

The property No. S-21/11, Englishiya Line, Varanasi is the property in dispute. Its original owner and landlord according to the tenants herein was Smt. Aisha Begum widow of Abdul Shakur who had left for Pakistan leaving the said property. The said property was declared as an evacuee property and was vested in the Central Government through the custodian evacuee property. It was put to auction. In auction it was purchased by Mela Ram and Chunni Lal jointly. They were the father and son. The Petitioners are the sons of Chunni Lal and thus are grandsons of Mela Ram. The auction sale was confirmed on 8th of October, 1956. Sri Gokul Das (the original tenant), the predecessor in interest was in occupation of the said property as tenant and he was directed to pay the rent to the auction purchasers i.e. Mela Ram and Chunni Lal. It so happened that Mela Ram expired on 21.2.1957 and by registered Will had bequeathed the property to his minor grandsons, the present Petitioners. It appears that due to the death of Mela Ram issuance of sale certificate was delayed by the custodian on account of the objections raised by Gokul Das, the predecessor in interest of the Respondents-tenants. It has come on record that ultimately on 6th of December, 1988 sale certificate and conveyance deed were executed in favour of Chunni Lal and the present Petitioners, on the basis of Will dated 8.2.1957 executed by Mela Ram.

The original tenant Gokul Das expired in the year 1982 leaving behind the Respondent tenants herein. The heirs of Gokul Das after issuance of the sale certificate in favour of the Petitioners instituted suit No. 561 of 1989 in the Court of City Munsif, Varanasi impleading the State of U.P., Managing Officer, Custodian Evacuee property, Chunni Lal and the present Petitioners as Defendants restraining them to dispossess the Plaintiffs i.e. the present Respondent-tenants from the premises in suit otherwise than in due course of law. The said suit was instituted on the pleas inter alia that they have perfected the title by adverse possession and also by denying the title of Chunni Lal and the present Petitioners, in the property in dispute.

According to the Petitioner-landlords, the tenants herein who had instituted the suit No. 43 of 1991 denied the title of the landlord, therefore, are liable for eviction u/s 20(2)(f) of the Act. The present Petitioners along with their father Chunni Lal instituted SCC Suit No. 43 of 1991 in the Court of Judge, Small Causes against the tenant-Respondents on the ground of denial of their title by the tenants in the suit No. 561 of 1989 as set out in the plaint therein. The Defendants-tenants-Respondents herein have set up title in themselves in the aforesaid suit No. 561 of 1989 and therefore, they are liable for eviction, it was pleaded in the suit giving rise to the present petition.

In reply, the tenants in their written statement have admitted the relationship of landlord and tenant between the parties and have set out that they have not committed any default in payment of rent. So far as the denial of the Plaintiffs'' title is concerned, it was stated that in the year 1989 the Plaintiffs had threatened the Defendants to dispossess them from the disputed property illegally, their counsel in suit No. 561 of 1989, therefore, had taken a plea of adverse possession and this does not amount to denial of the title of Plaintiffs in respect of the disputed house.

Points for determination were framed by the trial Court. The parties led evidence in support of their respective cases and the suit was decreed by the trial Court on 15th of May, 1999 holding that the Defendant-tenants have denied the ownership and land lordship of the Plaintiffs and thus, they are liable for eviction, the notices determining the tenancy is valid and the benefit of Section 20(4) of the Act is not available to the tenants.

In revision, at the instance of the tenants before the Court below the revisional Court confirmed the finding on the question of denial of title etc, but remanded the matter back by the order dated 4.12.2002 passed in SCC revision No. 43 of 1991 to decide the question as to whether the Plaintiff landlords have condoned the act of the Defendant- tenants with regard to the denial of the title. The revisional Court was of the view that under the provisions of the U.P. Act No. 13 of 1972 Section 20(2)(f) in particular, the landlord is also required to prove that the act of denial of title by the tenants has not been condoned.

The trial Court reconsidered the matter in the light of the directions given by the revisional Court and by its subsequent judgment dated 6th of November, 2003 again decreed the suit on the finding that there is nothing on record to show that the Plaintiffs have condoned the act of the Defendant-tenants. The matter was carried in SCC revision No. 26 of 2003 before the Court below who by the impugned order dated October 20, 2004 allowed the revision on the finding that it is not a case of denial of title by the Defendant-tenants Respondents herein.

Heard the learned Counsel for the parties. Sri C.K. Parekh, learned Counsel for the Petitioners, submits that a perusal of the plaint of the suit instituted by the tenants would clearly show that they not only denied the title of the Plaintiffs to the property in question but they also set up its title in their favour by putting forward the plea of adverse possession. It was submitted that there was no dispute that the property in dispute was purchased by Mela Ram and Chunni Lal, father and son. It is the case of the tenant-Respondents that the rent was paid to Mela Ram during his life time. This being so, irrespective of the fact whether Mela Ram has executed the Will in favour of his grandsons, the Respondent tenants have denied the title of Chunni Lal who was Plaintiff No. 1 also a co-purchaser, the Respondent tenants are liable for eviction u/s 20(1)(f) of the Act.

The second limb of the argument is that the finding with regard to denial of the title of the Plaintiffs in view of its earlier judgment dated 4th of December, 2002 passed in the revision has attained finality so far as the revisional Court is concerned. In contra, Sri Manoj Mishra, learned Counsel for the Defendant-tenants Respondents submitted that they could deny the title of the present Plaintiffs- Petitioners who have derivative title. The principle of estoppel in between landlord and tenant is not applicable where the landlord has got derivative title. In this connection, reliance was placed on the certain observations made by the Apex Court in Subhash Chandra Vs. Mohammad Sharif and Others, in particular.

Considered the respective submissions of the learned Counsel for the parties.

It is desirable to reproduce Section 20(2)(f) of the Act, which reads as follows:

20 (1) ....

(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:

(a) ....

(b) ....

(c) ....

(d) ....

(e) ....

(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right of re-entry or condoned the conduct of the tenant.

The first limb of the argument of the Petitioners is that on a fair reading of the plaint of suit No. 561 of 1989 instituted by the tenant- Respondents herein would show that they denied the title of the present Petitioners. To examine the said plea, it is necessary to have a look to the said document. In paragraphs 1 to 9 of the plaint, the Plaintiffs therein claimed that they are owners in possession of the property in question whose original landlord and owner was Smt. Aisha Begum and she migrated to Pakistan. The custodian of evacuee property asked Gokul Prasad, husband of Plaintiff No. 1, to pay the rent at the rate of Rs. 15/- per month. Thereafter, the rent was reduced to Rs. 10/-. Late Gokul Chand carried repairs and renovation over the property in dispute by getting the electric connection etc. in his name and also by paying the house tax and water tax etc.

Paragraphs 10, 12, 20, 21 and 24 would show that the property was purchased by Mela Ram and Chunni Lal son of Mela Ram, on 8th of October, 1956 and the information of purchase was given to Gokul Chand who paid the rent to the purchasers. For the sake of convenience para 10 is reproduced below (with all the errors and misprints etc., as it is):

That the said property was later on auctioned by State which was purchased in due course of auction proceeding by Mela Ram (Late) and Chunni Lal son of Mela Ram Defendant No. 3 and thereupon on 8.10.56 the said Gokul Chand was intimated about the said auction sale and was direct to pay the rent to the said auction sale purchasers Mela Ram and Chunni Lal after 8.10.56 as the rent was paid by the said late Gokul Chand upto 24.10.55 as alleged therein by the office of the Asstt. Custodian Evacuee Property, Varanasi through Asstt. Custodian Officer Sri. M.D. Sharma Varanasi.

Further in para 12 it was stated that the rent was paid to Chunni Lal against the receipt. The said paragraph is also reproduced below:

That the applicant (plff. No. l)''s husband late Gokul Chand thereupon paid the rent to the said Chunni Lal and also obtained receipt in lieu thereof.

The paragraphs - 20, 21, 22 and 24 as they are, are reproduced below:

That on 16.12.88 the Defendant No. 2 issued a sale certificate and conveyance deed in favour of Defendant No. 3 to 6 on the basis of an alleged WILL dated 8.2.57 which is absolutely false, frivolous and concocted without affording any opportunity of being heard to the Plaintiffs. And as such the ex parte order dated 16.12.88 is nothing but collusive with malafide intention being in collusion with the Defendant No. 3 to 6 and as such it has no nullity in law.

That the said late Mela Ram did not execute and WILL as alleged but the alleged WILL dated 8.2.57 is merely false and fabricated concoction with an intention to grab the property in suit. Further more the proceeding for substitution moved by the Defendant 4 to 6 is bogus, false and barred by time also and as such it bears no nullity in law.

That the order for issuing sale certificate conveyance deed dated 16.12.88 is quite unjustified and beyond jurisdiction and ex parte as well without providing any sufficient opportunity of being heard to the Plaintiffs to this effect.

xx xx xx xx 24. That the Plaintiffs are in actual and physical possession over the property in suit and they possess every proprietary rights in respect thereof being adverse possession over the premises in suit and they are also entitled to enjoy over the property in suit according to existing law as provided in easementry rights.

A plain reading of paragraphs reproduced above would show that the tenants herein admitted the payment of rent by Gokul Chand to Mela Ram. They have admitted that the property in dispute was purchased by Mela Ram and his son Chunni Lal jointly. The husband of the Plaintiff No. 1 namely Gokul Chand paid the rent to Chunni Lal. After stating so, the Respondent-tenants pleaded that they have made certain improvements in the property in question and Mela Ram did not execute the alleged Will dated 8.2.1957 which is merely false and fabricated document, the tenants have acquired the proprietary right in respect of the property in dispute being in adverse possession. It is, thus, clear that the tenants-Respondents have unequivocally admitted the auction sale in favour of Mela Ram and Chunni Lal and payment of rent to Chunni Lal. It was not disputed anywhere that after the death of Mela Ram, the property was not inherited by Chunni Lal who happens to be son of Mela Ram as also a co-sharer. The suit giving rise to the present writ petition was instituted by Chunni Lal and his sons namely Om Prakash, Som Prakash and Ved Prakash, the Petitioners herein. Chunni Lal was made Respondent No. 3 in the aforestated suit No. 561 of 1989 instituted by the Respondents-tenants along with his sons/Petitioners. This clearly shows that the Respondents herein in no uncertain terms have denied the title of their landlord namely of Chunni Lal. This conclusion is further fortified by the fact that they have set up the proprietorship plea in their favour on the basis of adverse possession. They have come out with the case that Chunni Lal is absconding since 1969 and his whereabouts are not known for a very long time vide para 18 of the plaint. Be that as it may, it is but obvious that the ownership as also the landlord-ship of Chunni Lal, the father of the present Petitioners, was denied which could not be done by the Respondents-tenants in view of Section 116 of the Evidence Act.

Section 116 of the Evidence Act provides that no tenant of immovable property shall during the continuance of the tenancy be permitted to deny that a landlord of such tenant had, at the beginning of the tenancy a title to such immovable property. Section 116 of the Evidence Act contains the rules of estoppel and it applies so long as tenancy is not terminated and the rules estops the tenant from challenging the ownership of landlord at the commencement of the tenancy.

The Apex Court in the case of Sheela and Ors. v. Firm Prahlad Rai Prem Prakash AIR 2002 SC 1624 has laid down as follows:

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 - Raja Mohammad Raja Mohammad Amir Ahmad Khan Vs. Municipal Board of Sitapur and Another, 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 recognize such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. However, in various rent control legislations such a ground is recognized 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.

Denial of landlord''s title or disclaimer of tenancy, is it an act injurious to interest of landlord? How does this rule operate and what makes it offensive? Evans and Smith state in the Law of Landlord and Tenant (Fourth Edition, 1993, at p.89) that it is an implied condition of every lease, fixed-term or periodic and formal or informal, that the tenant is not expressly or impliedly to deny the landlord''s title or prejudice it by any acts which are inconsistent with the existence of a tenancy. Disclaimer of the landlord''s title is analogous to repudiation of a contract. The rule is of feudal origin; the courts are not anxious to extend it and so any breach of this condition must be clear and unambiguous. Hill and Redman in Law of Landlord and Tenant (Seventeenth Edition, para 382, at page 445-446) dealing with "Acts which prejudice lessor''s title" state that there is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor may re-enter for breach of this implied condition. Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging that the title of the landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title. It is a question of fact, however, what intention underlies the words or the actions of a tenant, whether in fact he is definitely asserting a title adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. Thus, it is not sufficient that the lessee does not at once acknowledge the title of the landlord and a general traverse in the defence to an action for possession does no more than put the landlord to proof and does not assert that the title is in another. The essential characteristic of disclaimer by tenant as stated in Foa''s General Law of Landlord and Tenant (Eight Edition, para 934, at p.589) is that it must amount to a renunciation by the tenant of his character of tenant, either by setting up a title in another, or by claiming title in himself. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. The denial, though it need not be express and can be implied, must nevertheless be a clear denial and it must be clearly proved.

In Williams and Jeffery v. Cooper (1840) 1 Scott NR 36, Tindal C.J. stated, "a disclaimer, as the word imports, must be a renunciation by the party of his character of tenant, either by setting up a title in another, or by claiming title in himself." Setting up a title hostile to that of the landlord by the tenant himself or the tenant assisting another person to set up such a claim entails forfeiture of tenancy, said Lord Lyndhurst, C.J. in Doed Ellerbrock v. Flynn 1 Cr M & R 137. As held in Doed Grav v. Stanion (1836)1 M&W 695 at p.703, the disclaimer may be verbal or written but it must amount to a direct repudiation of the landlord-tenant relationship or it may be a distinct claim to hold possession of the estate, upon a ground wholly inconsistent with the existence of that relationship which is a repudiation of such relationship by necessary implication. Park B. therein explained, "an omission to acknowledge the landlord as such, by requesting further information, will not be enough.

In paragraph 16 it has been stated that if after creation of tenancy, the title of landlord is transferred or devolves upon a third person, a tenant is not estoppel from denying such title. A denial of title which falls foul of the rule of estoppel contained in Section 116 of 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 Vs. P.V.K. Krishna Rao (Deceased) by Lrs., Kundan Mal Vs. Gurudutta, and Raja Mohammad Amir Ahmad Khan, (supra). We may quote with advantage the law as stated by a Division Bench of Calcutta High Court in Hatimullah and Others Vs. Mahamad 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".

Coming to the facts of the case, even if for the sake of argument, the Will executed by Mela Ram in favour of his grandsons, the Petitioners, is kept out of the view, the fact remains that Chunni Lal who was the Plaintiff No. 1, admittedly, purchased the property in dispute in auction sale along with his father Mela Ram. After the death of Mela Ram, Chunni Lal, inherited the share of his father if the said Will is ignored, otherwise the Petitioners would be heirs to the extent of Mela Ram. It is of some interest to note that the Will in question is a registered document and the Respondents-tenants are outsiders of the family of Mela Ram and Chunni Lal. They did not set up any Will or any claim otherwise to the property left by Mela Ram. Nor any other person has come forward to claim the property left by Mela Ram. The Respondents-tenants on their own showing, as pointed out above, paid the rent through Gokul Chand, the predecessor in interest. On this fact situation, the plea set out by the Respondents-tenants in their suit that they have perfected the title by adverse possession and the Defendants therein including Chunni Lal and the Petitioners have no right, title or interest in the property in dispute, in my considered view amounts to renunciation of their character as tenant. It amounts to denial of the title of their own landlord i.e. all the Petitioners and Chunni Lal who died during the litigation.

Submission of learned Counsel for the Respondents-tenants that a tenant can challenge the derivative title of his landlord is well established but its applicability to the facts of the present case is a different thing. It will not be out of place to mention here that the in the ruling relied by him i.e. Subhash Chandra Vs. Mohammad Sharif and Others, in particular it has been stated that the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the Plaintiff. Where the landlord himself has not inducted a tenant in the disputed property and his rights are founded on the derivative title, for example as assignee, donee, vendee, heir etc. the position is a little different. A tenant already in possession can challenge the Plaintiffs'' claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by Section 116 of the Evidence Act. The section does not permit the tenant during the continuance of the tenancy to deny that his landlord had at the beginning of the tenancy a title to the property. It has been further laid down that the tenant is entitled to show that the Plaintiff has not, as a matter of fact, secured a transfer from the original landlord or that the alleged transfer is ineffective for some valid reasons, which renders the transfer to be non-existent in the eyes of law.

In the case on hand, it may be noted that the Respondents-tenants have not challenged and could not have challenge the title of Chunni Lal at least. On their own showing Mela Ram and Chunni Lal purchased the property in dispute in auction from the Custodian of Evacuee Property and in recognition of that auction, on the direction of Custodian Evacuee Property, Gokul Chand, their predecessor in interest paid the rent admittedly to Chunni Lal. This would amount to attornment by Gokul Chand in favour of Chunni Lal. Having regard to the above fact it is not a case of derivative title, as Chunni Lal was a co-purchaser and his title was accepted by making payment of rent. It is a case of denial of title by the Respondents-tenants by setting up a title in themselves by adverse possession. Once that being the case, the Respondents-tenants could not take a turn round and say that they have perfected their title by adverse possession. The plea as set out by them in their suit regarding plea of adverse possession goes to the very root of the matter and it amounts to denial of title of Chunni Lal, Plaintiff No. 1.

There being no such plea that the present Petitioners are neither grandsons of Mela Ram nor sons of Chunni Lal, it cannot be said that the Petitioners are claiming derivative title to the property in question. In other words, there being no dispute of relationship referred to above, even assuming for the sake of argument, the alleged Will executed by Mela Ram is kept aside, there cannot possibly be a dispute of heir-ship and as such the question of derivative title would not arise at all.

Having said so as above, the argument of the Respondents'' counsel that they could deny the title of the Plaintiffs, has got no substance and the same is hereby rejected.

The Court below has taken a very curious view of the matter. By strange reasoning it has reached to the conclusion that the Respondents under some confusion instituted the suit No. 561 of 1989. Proceeding further, it invoked the principle of equity and principle of interest of justice and proceeded to address the issue that nobody can take advantage of his own wrong and since the present Plaintiffs treated the tenants as unauthorised occupants they instituted the aforestated suit No. 561 of 1989 on the basis of adverse possession and claimed the ownership right in the house in question. It is difficult to understand the approach of the Court below in the matter. The principle of equity or the principle of natural justice has hardly any application to the controversy so far as the question of denial of title of landlord is concerned. It seems that the Court below while deciding the revision failed to consider the relevant statutory provision and somehow on its ipse dixit allowed the revision. It misdirected itself in not deciding the issue in the light of Sections 20(2)(f) of the U.P. Act No. 13 of 1972 read with Section 116 of the Evidence Act and the established principle of law in this regard.

Even otherwise also, it very conveniently ignored the judgment delivered between the parties in the earlier stage of the litigation by the revisional Court confirming the finding recorded by the trial Court holding that it is the case of denial of title of Plaintiffs. The said finding recorded by the revisional Court in the earlier stage of litigation between the parties in the judgment dated December 4, 2002 is final and conclusive. While doing so the revisional Court by its earlier order had already rejected the plea of confusion as was set out by the Respondents, specifically.

The matter was discussed therein in detail and the plaint allegations of original suit No. 561 of 1989 have been referred in extenso in the judgment. After taking into consideration the attending facts and circumstances of the case, it confirmed the finding with regard to the denial of relationship of landlord and tenant between the parties as was recorded by the trial Court by holding that the finding recorded by the trial Court in this regard cannot be said to be invalid or without any basis.

As noticed herein above, at one stage, the matter was remanded by the revisional Court to the trial Court to record a finding as to whether the Plaintiffs have condoned the act of the Respondents with regard to the denial of title. The trial Court found that the said act of Respondents-tenants has not been condoned. This finding has not been reversed by the revisional Court thereafter. Even otherwise also, I find that the finding recorded by the trial Court is essentially a finding of fact. Besides above, the plea of such condonation does not find place in the written statement. Evidence in this regard is also lacking.

Section 3(j) of the U.P. Act No. 13 of 1972 defines ''landlord'' in relation to a building, means a person to whom its rent is or if the building were let, would be, payable. The Respondents by setting their own proprietary right over the property in question have, thus, denied the land lordship of the Plaintiffs-Petitioners including Chunni Lal and as such they have renounced their character as tenant and therefore, they are liable for eviction in view of Section 20(2)(f) of the Act. There is no pleading nor there is any material to show that the Petitioners/Plaintiffs have condoned the said act of the Respondents. On the other hand, the filing of the suit giving rise to the present writ petition immediately after the suit No. 561 of 1989 is indicative of the fact that the Plaintiffs have not condoned the act of the Respondents.

In this view of the matter, it is held that the Respondents-tenants are liable for eviction for denial of title of the Petitioners including Chunni Lal who was Plaintiff No. 1 as landlord and the latter has not waived his right of re-entry or condoned the conduct of the Respondents.

Viewed as above, the judgment of the revisional Court cannot be allowed to stand. The same is hereby set aside and the judgment of the trial Court decreeing the suit for recovery of arrears of rent, damages etc. stands decreed with costs throughout.

Time up to 30th of September, 2011 is granted to vacate the disputed premises subject to the fulfillment of the following conditions within a period of one month:

The tenants-Respondents shall file an undertaking on affidavit before the trial Court that they will vacate the disputed accommodation and will hand over its peaceful vacant possession to the landlords without creating any third party interest on or before 30th of September, 2011.

The arrears of rent/damages, if any, for the period up to 30th of September, 2011 at the decreed rate is deposited before the trial Court, after adjusting the amount, if any, already deposited.

In case of default in compliance of either of the conditions stipulated above, the time granted by this Court shall stand vacated. It is further provided that if the contesting Respondents fail to vacate the disputed accommodation on or before 30th of September, 2011 they shall be liable to pay the damages at the rate of Rs. 2,000/- per month. The amount of damages has been fixed looking the extent of construction and situation. It is situate in the heart of city Varanasi.

The writ petition is allowed and the impugned order dated 20.10.2004 is hereby quashed. No order as to costs.