S.Raghbir Singh vs S.Sranagat Singh and ors.

The petitioner is tenant of a chobara situate in Urdu Bazar (Now Rajinder Bazar) Jammu. The respondents are the landlords A suit for

ejectment was filed by the respondents against the petitioner on 151073. The petitioner resisted the suit. During the pendency of the trial of the suit,

the petitioner filed an application on 28576, in the trial court, to the effect that the Assistant Commissioner (Nazool Department) be summoned a

witness. The reason stated in the application was that the petitioner had received a communication from the Assistant Commissioner (Nazool

Department) to the effect that he should not pay the rent any more to the respondent The application was dismissed by the trial court on 15676

and a revision against that also met the same fate in the High Court.. A few months after i.e. 131176 an application was filed by the petitioner in the

trial court seeking amendment of the written, statement so as to incorporate therein a plea that the suit property belongs to the Nazool Department

of the Government of Jammu and Kashmir and had been taken over by the Government of Jammu and Kashmir, with the result that the

relationship of the landlord and tenant between the petitioner and the respondents had come to end. Vide order of the trial court dated 281276 the

petitioner was permitted to amend the written statement subject to payment of Rs. 40/ as costs. The respondents preferred a revision petition

against the said order and the Civil revision petition no. 95 of 1977 came to be decided on 13th December, 1978 and the order of the learned

Munsiff was set aside While allowing the said revision it was observed :

The learned Munsiff while granting permission to the respondent to amend the written statement opined that the facts which the defendant sought

to introduce by way of amendment in written statement were material for determining the title to the suit property of the petitioners landlords. In my

opinion the learned Munsiff fell in complete error ia this regard. The plea of title in a suit for ejectment is an extraneous plea which the tenant cannot

subsequently be allowed to repudiate the title during the subsistence of the tenancy unless he first surrenders possession. In the instant case the

tenant had admitted the existence of the relationship of landlords and tenant between the parties and the case of respondenttenant was that he has

not committed the defaults as alleged by the petitionerslandlords. By allowing the tenant to amend the written statement in the manner suggested by

the tenant, a Simple suit for ejectment would be converted into a suit for the determination of the title. This, the learned Munsiff could not do more

so in view of the fact that the previous application filed by the tenant to summon the Assistant Commissioner (Nazool) as a witness, precisely on

the same grounds, had been dismissed by the, trial court and the dismissal was upheld by the High Court.

After the revision petition was allowed en 131278, the parties appeared before the trial court and some further evidence was recorded The

tenant petitioner once again, on 13479, filed an application seeking amendment of the written statement. By this application he sought to

incorporate that during the pendency of the suit on 10779, the Government of Jammu and Kashmir, which is the paramount owner of the property

in dispute, had deter mined the lease of the respondent by ordering resumption of the Nazool land and as such the respondent landlord had lost the

cause of action. A copy of Govt. order No. Rev. (NDJ) 158 of 1979, was filed alongwith the application. The application was dismissed by the

learned Musniff vide order dtd. 30480. II is that order of the learned Munsiff which the petitioner seeks to challenge by means of the present

revision petition.

Mr. J. P. Singh, learned counsel for the respondent has raised a preliminary objection to the maintainability of the revision petition. It is urged

that the earlier revision petition in which the matter in controversy was directly and substantially the same, having been decided by this court, the

present revision petition was barred by the general principles of resjudicata. In support of his objections, Mr. J. P. Singh has relied upon the

following observation of their lordships of the Supreme Court reported in AIR 1978 S. C. 1283 :

If by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as resjudicata and bars the trial of

an identical issue in a subsequent suit, between the same parties. The principle of resjudicata also comes into play.

when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have necessarily decided by

implication, then also the principle of resjudicata in that Issue is directly applicable.

(4) Mr. Sehgal has made a futile attempt to meet the preliminary objection by urging that the basis for making application on 13479 which was

decided by the impugned order, was the Govt. order dated 10779, and since this Government order was not even in existence when the earlier

application dated 131176 was decided there was no bar to the maintainability of the present revision petition.

In the first place the amendment which the petitioner sought by his earlier application of 131176 and the one which he sought by ,his application

dated 13476, was materially and substantially the same viz. 'that during the pendency of the suit, the Government of J&K had determine the lease

of the landlords and hence the landlords had lost the cause of action. The latter dated 10779 did not furnish any fresh ground to the petitioners for

amendment of the written statement as filed in the earlier application dated 131176 all these facts were mentioned. In civil revision petition no. 95

of 77, the precise question as to whether under those circumstances amendment of the written statement should have been allowed or net was

considered by the court and it was held that the petitioner could not be allowed to in corporate that amendment was not permissible in view of

section 116, Evidence Act. It is not disputed that the amendment now sought to be made is in identical terms as the earlier amendment except for

the mention of the latter dated 13479. Since the matter in controversy was directly and explicitly decided by this court in civil Revision no. 95 of

77, the decision of that revision would operate as resjudicate in the subsequent to proceedings involving that very issue between the same parties.

All the essential ingredients for the applicability of the general principles of resjudicate are available in the present case. The former decision was in

respect of an issue which is directly and substantially involved in the present proceeding. It was between the same parties>as in the present case

and was decided a court of competent jurisdiction, which heard and finally decided that question. Under these circumstances, the preliminary

objection must be sustained and the revision petition must be held to be not maintainable, as barred by the general principles of resjudicate.

Although, the decision of the preliminary objection, is enough to dismiss the revision petition but since arguments have been addressed by counsel

for the parties even on merits. I would like to deal with those also

Accordingly to Mr. Sehgal, though a tenant cannot in terms of S. 116 of the Evidence Act be permitted to deny the title of his landlord at the

beginning of the tenancy' without first surrendering the possession of the premises to him, yet there is no bar to the tenant pleading that the title of

the original lessor has since come to an end by some subsequent event and that the title in the demised' premises now vests in the paramount title

bolder and as the tenant can be permitted to amend the written statement to incorporate the subsequent events; in it. In support of this submission

reliance is placed on a Division Bench judgment of the Calcutta High Court reported in AIR, 1922 Calcutta 237, wherein the learned Judges

opined:

It is open to the .tenant to prove a subsequent censor of the landlord's title. The estoppel mentioned in section 116 of the Evidence Act refers to

the title at the beginning of the tenancy. One way in which the tenant can show that the title has determined is the proving an eviction by title

paramount or the equivalent of such an eviction"".

Reliance is also placed on a judgment of the Patna High Court reported in AIR 1977 Patna 246. The learned Single Judge of that High Court,

observed :

Section 116 only estops a tenant from challenging the title of the landlord at the beginning of the tenancy. It does not estop him from challenging

the title on the basis of events which occurred before the tenant was inducted or en the basis of subsequent events.

I am afraid, the reliance on both the aforesaid authorities by Mr. Schgal is misplaced and both the judgments are distinguishable on facts. In AIR

1922 Calcutta 237 Supra the principle which was laid down was that it is open to a tenant to show that the title of the landlord had ceased by

proving ""an eviction by title paramount"". There is no quarrel with that proposition. In the instant case however, there is no eviction by the title

paramount in so far as the tenant is concerned, and therefore, the proposed amendment which merely states that the original lessor had lost his title

could not allowed Similarly, in AIR 1977 Patna 246 (Supra) the title of the landlord had been challenged in a civil court by the title paramount and

the finding had been returned in favour of the title paramount. It was under those circumstance that the principle of estoppel, laid down in S. 116 of

the Evidence Act was held not applicable to the facts of that case

In the instant case, there is no determination of the lessor by any court. The order of the Govt. dated 10779 itself is subject matter of an appeal,

as is stated at the bar by Mr. Singh, before the appellate authority. In any event, how can the tenant set up the title to the property in title

paramount without first attorning to him. If the proposed amendment suit in to a 'suit for determination of the title of the original lessor, without the

tenant first quitting the premises. Section 116 Evidence Act rests on a well settled doctrine that a tenant who has been let in to possession of a

premises, cannot be permitted to deny any landlord's title, however defective it may be so long as he has not openly restored possession of the

premises by surrendering the same to his landlords (see with advantage AIR 1935 P. C 59' and 1970 KLJ 224). This general principle is, of

course, subject to a well recognized exception, is, which is that of the tenant is evicted from possession of the premises by a true owner, the

tenancy comes to an end and there after there is nothing in law to prevent the tenant to attorney to the true owner is such a case and deny the title

of the lard lord without surrendering the possession to him. The following three conditions must however be fulfilled to make this exception

applicable (XI) the eviction of the tenant must be by the title paramount from the demised premises (2) party evicting the tenant must have a title

superior to that of the original lessor and (3) that he tenant must have quitted the premises against his will.

Thus it follows that if there has been conviction by the title paramount then the tenant is not estopped by the from denying the title of his

landlord (see AIR 1959 Patna 56 it is, of course not necessary in order to constitute the eviction by title paramount that the tenant must actually

have been dispossessed or even that there should have been a suit for ejectment against him. It would suffice if there is even a threat of eviction by

the title paramount and the tenant, as a result of such threat, has attorned to the title paramount, Under possession to show that since the date of

tenancy, the title of the landlord had come to an end and as such there was no subsisting tenancy with the original lessor but not otherwise. The

dispute of title between the title of the petitioner. The determination of lease in favour of the landlord by title paramount which is the sheet anchor of

the petitioners case, cannot confer any right on the petitioner to deny the title of the landlord during the subsistence of his tenancy. It stands

uncontroverted that the petitioner has acknowledged the respondents as the landlord and his tenancy has continued all along. In the facts of the

case, the estoppel to deny the title of the landlord continues to apply to the petitioner until be has surrendered the possession to the landlords

would be infinitely and endangered.

The amendment which has been proposed by the petitioner did not include any such plea that the tenant had since attorned to the paramount

title or that he had been evicted or, was under a threat of eviction by the paramount title holder. The amendment which he sought was a only to set

up the title in the demised premises in the Govt. of Jammu and Kashmir during the subsistence of his tenancy, with the respondents. This he cannot

permitted to do. The proposed amendment only appears to be an attempt to delay the disposal of the ejectment suit was instituted more than seven

years ago. The application is not at all bonafide The proposed amendment does not come even within the ambit and scope of order 6 Rule 17

CPC, because the amendment is not necessary for the determination of the real matter in controversy. On the other hand, the proposed

amendment would cloud the determination of the real matter in controversy. The impugned order of the learned Munsiff is perfectly legal and

justified. It is unassailable and calls for no interference.

For what has been stated above this revision petitions fails and is dismissed as such. The respondents shall be entitled to Rs. 150/. as costs.

The parties through their learned counsel are directed to appear before the trial court on 221280.