S. Mohinder Singh vs Chander Sheikher and Others

Y.P. Nargotra, J.—The respondent-landlord has filed a suit for ejectment and for recovery of arrears of rent against the petitioner-tenant in

the court below in respect of the demised premises leased out to petitioner-tenant on a monthly rental of Rs. 250/-, principally on the ground of

personal necessity. The petitioner-tenant is contesting the suit on various grounds, however, he in his written statement has admitted the tenancy

under the respondent-landlord at the monthly rental of Rs. 250/-.

It is not in dispute that the petitioner-tenant has not paid the rent for the months of December 1998 upto ending June 1999 and, thus, an amount

of Rs. 1750/- is outstanding against him towards the respondent-landlord. The respondent-landlord, therefore, filed an application u/s 12(4) of

Houses & Shops Rent Control Act before the trial court for seeking a direction to the petitioner-tenant for paying or depositing the arrears of rent

in the court and for also paying the future rent regularly.

The petitioner-tenant without disputing the fact that he had not paid the said arrears of rent to the respondent-landlord contested the application

on the ground that he cannot be held to be in arrears of rent because he has already paid an amount of Rs. 7250/- as rent for 29 months for the

period commencing from December 1998 to ending April 2001 to one Parshotam Kumar, son of Sh. Sartan Ram, resident of Chabutra Bazar,

Udhampur, who is alleged by him to be the paramount title holder of the demised premises. In his objections he took up the plea that the said

paramount title holder had served a notice upon him that he had decided to terminate the tenancy of Dev Raj (respondent-landlord) and further

directed him not to pay the outstanding rent from December 1998 to the respondent-landlord. Therefore, under the threat of eviction, he attorned

to the paramount title holder. The learned trial court vide its order impugned dated 5.11.2003 has rejected the defence put forth by the petitioner-

tenant and allowed the application of respondent-landlord with a direction to the petitioner-tenant to deposit the arrears of rent pending since

December 1998 to October 2003, within a period of one month and fifteen days from the date of passing of the order and to pay the future rent at

the stipulated rate before 15th day of every month to the respondent-landlord, being of the view that the petitioner-tenant after having admitted his

tenancy under the respondent-landlord was estopped from disputing the title of his landlord while continuing in possession of the demised premises.

Being aggrieved of the order, the petitioner-tenant has filed this revision petition.

The contention of learned Counsel for petitioner is that though it is a fact that the petitioner-tenant in his written statement has admitted his

tenancy under the respondent-landlord, yet the rule of estoppel for denying his title under the threat of eviction extended by the paramount title

holder could not apply. As the tenant had attorned to the paramount title holder on being put to notice and under the threat of eviction, therefore he

cannot be held to be in arrears of rent against the respondent-landlord so as to become liable for an order u/s 12(4) of the Houses & Shops Rent

Control Act. In support of his contention, he relies upon D. Satyanarayana Vs. P. Jagadish, , wherein their Lordships held as follows:

Section 16 of the Evidence Act provides 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, a title to such immovable property. Possession and permission being

established, estoppel would bind the tenant during the continuance of the tenancy and untill he surrenders his possession. The words ""during the

continuance of the tenancy"" have been interpreted to mean during the continuance of the possession that was received under the tenancy in

question, and the Courts have repeatedly laid down that estoppel operates even after the termination of the tenancy so that a tenant who had been

let into possession, however, defective it may be, so long as he has not openly surrendered possession, cannot dispute the title of the landlord at

the commencement of the tenancy. The rule of estoppel is thus restricted not only in extent but also in time i.e. restricted to the title of the landlord

and during the continuance of the tenancy; and by necessary implication, it follows that a tenant is not estopped, when he is under threat of eviction

by the title paramount, from contending that the landlord had no title before the tenancy commenced or that the title of the landlord has since come

to an end.

The rule of estoppel embodied u/s 116 of the. Evidence Act is that, a tenant who has been let into possession cannot deny his landlord's title,

however defective it may be, so long as he has not openly restored possession by surrender to his landlord. During the continuance of the tenancy,

the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord's title by mere assertion of such a right to the

knowledge of the landlord. See : Bilas Kunwar v. Desraj Ranjit Singh ILR (1915) All 557 : AIR 1915 PC 96 and Atyam Veerraju and Others Vs.

Pechetti Venkanna and Others, . The general rule is however subject to certain exceptions. Thus a tenant is not precluded from denying the

derivative title of the persons claiming through the landlord. See: Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. AIR 1937 PC

Similarly, the estoppel u/s 116 of the Evidence Act is restricted to the denial of the title at the commencement of the tenancy. From this, the

exception follows, that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the

landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from

the property, under a threat of eviction he had attorned to the paramount title-holder. In order to constitute eviction by the title paramount, it has

been established by decisions in England and in India, that it is not necessary that the tenant should be dispossessed or even that there should be a

suit in ejectment against him. It will be sufficient if there was threat of eviction and if the tenant as a result of such threat attorns to the real owner, he

can set up such eviction by way of defence either to an action for rent or to a suit in ejectment. If the tenant however gives up possession

voluntarily to the title-holder, he cannot claim the benefit of this rule. When the tenancy has been determined by eviction by title paramount, no

question of estoppel arises u/s 166 of the Evidence Act. See : AIR 1949 124 (Privy Council) . The principle must equally apply when the tenant

has attorned under a threat of eviction by the title paramount and there comes into existence of new jural relationship of landlord and tenant as

between them.

Mr. O. P. Thakur, learned Counsel for petitioner-tenant submits that in the present case as the tenant attorned to the paramount title holder and

paid the rent, therefore, there has come into existence of new jural relationship of landlord and tenant between them and, as such, the respondent-

landlord cannot insist for payment of arrears of rent. On the other hand, Mr. V.R. Wazir, learned Counsel for respondent-landlord has submitted

that the above defence projected in the objections filed by the petitioner-tenant is not the defence raised in his written statement. According to him,

for the purposes of Section 12(4) of Houses & Shops Rent Control Act, the relationship of the parties as well as the rate of rent is required to be

determined on the basis of pleadings of the parties made in the plaint and the written statement. He submits that in the plaint the respondent-

landlord alleged that the petitioner is a tenant under him to whom he has leased out the demised premises on a monthly rent of Rs. 250/-. The

petitioner-tenant in his written statement has admitted the said relationship and the rate of monthly rent, therefore, he could not be permitted to take

a new stand on the question of his liability in terms of Section 12(4) of Houses & Shops Rent Control Act.

Mr. Thakur admits that in the written statement the petitioner-tenant has admitted the respondent to be his landlord in respect of his tenancy

over the demised premises. He further admits that the rate of rent has also not been disputed by the petitioner-tenant in the written statement.

According to him, after the petitioner-tenant received the notice from the paramount title holder, he applied to the court under Order 6 Rule 17 for

seeking a permission to amend the written statement, however, the same was declined. Against the order of rejection of permission, he had filed C.

Rev. No. 222/2001 in this Court, which was dismissed vide order dated 4.3.2002.

In the order dated 4.3.2002, whereby the civil revision filed by the petitioner-tenant was dismissed, it was held ""it be seen that petitioner having

admitted that he was paying rent to Dev Raj cannot get out of this plea. In this controversy the only question which is required to be gone into is

relationship between the tenant and landlord. The petitioner having admitted that he was tenant under plaintiff cannot get out of this admission. The

view expressed by the trial court cannot be faulted.

Admittedly, the above order passed by this Court has not been challenged by the petitioner-tenant in any proceedings and thus has acquired the

finality. The fact of the matter therefore is that in the written statement the petitioner-tenant has not set up the defence of threat of eviction at the

hands of paramount title holder nor there is necessary pleadings to the fact that by payment of rent to the paramount title holder a new jural

relationship has come into existence. In the absence of such defence in the written statement, the petitioner-tenant is not entitled to set up the

defence of attornment while contesting the claim of respondent-landlord for seeking an order in terms of Section 12(4) of Houses & Shops Rent

Control Act, as the said fact can not be permitted to be proved in an application u/s 12(4) of the Act. Had he set up such a defence in the written

statement, he could have been asked to prove the same. In the absence of such a proof in an application u/s 12(4) of the Act, the defence set up

cannot be deemed to be a bonafide defence and, therefore, no exception can be taken to the order of learned trial court, which is impugned in this

revision petition.

In view of the above, there is no merit in the contention raised, the revision petition of the petitioner-tenant deserves dismissal. Accordingly, the

same is dismissed.