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Judgment
Ajit J. Gunjal, J.—The defendants are the appellants. Plaintiffs are the respondents. The plaintiffs filed a suit for declaration and also for ejectment of the defendants from the suit schedule premises. The learned Trial Judge decreed the suit. On appeal by the defendants, the same is confirmed. Hence, this second appeal.
The facts germane to the disposal of this appeal can be succinctly stated as follows:
The plaintiffs are the absolute owners and landlords of the premises in question. Defendant No. 2 representing as a partner of defendant No. 1 took the suit premises on lease from plaintiffs'' predecessors in title one Kanteppa Chanabasappa Noolvi. The plaintiffs claim that they have succeeded to his rights pursuant to a Will executed by him. The testator died on 03.04.1981. Pursuant to the Will, the plaintiffs'' names are mutated in the CTS records in respect of the suit property. When the Win was executed, the plaintiffs were minors and were represented through their natural guardian mother one Smt. Chandrawwa. After the death of Kanteppa Noolvi, the defendants have been paying rents in respect of the suit schedule properties and have obtained receipts from the mother of the plaintiffs, since they were minors. After the plaintiffs attained majority, they have been receiving rents and receipts are being issued by them. The plaintiffs would also contend that they have become the absolute owners of the suit property pursuant to a compromise decree passed in O.S. No. 77/90 on the file of the Principal Civil Judge (Sr. Dn.) at Hubli. The tenancy of the defendants commences from 27th of each English calendar months and ends on 26th of next English calendar month of the year. Some time in the year October 2000 toy mutual consent and oral agreement between the plaintiffs and defendant No. 2, the rent of the said property was enhanced to Re. 1,000/- per month i.e., the rent was enhanced from Rs. 8,000/- per annum excluding the property tax payable to Rs. 12,000/-per annum. Suffice it to say that the defendants did not pay the agreed rent. The plaintiffs would further aver that the suit property is required by them for their personal use and occupation to start a business. Hence, a notice was issued on 05.11.2003, terminating the tenancy of the defendants and calling upon them to hand-over vacant possession and also to pay the arrears of rent amounting to Rs. 14,000/-. The said notice was served on defendant No. 2 the Managing partner of the Arm and a reply was sent on 19.11.2003. In the said reply, the defendants disputed the title of the plaintiffs. The plaintiffs would further aver that the defendants had initiated proceedings in HRC 73/1989 on the file of the II Additional Munsiff, Hubli u/s 19 of the Karnataka Rent Control Act, 1961. According to the plaintiffs in the said proceedings, the defendants admitted the ownership of the plaintiffs.
The learned Trial Judge allowed the petition and permitted the defendant No. 2 to deposit the rent in favour of the plaintiffs. Incidentally, it is also to be noticed that the said order was questioned by the CTO, 2nd Circle, Hubli in R.R. No. 211/1990, which was dismissed. Since the defendants notwithstanding service of notice did not vacate the premises, the present suit is filed for ejectment coupled with arrears of rent and also for future mesne profits.
The defendants entered appearance and have filed the written statement The main contention of the defendants in the written statement is that the plaintiffs are not the owners of the suit schedule property inasmuch as they claim title under a Will stated to have been executed by Kanteppa Chanabasappa Noolvi. They would further contend that the plaintiffs do not require the premises for their bonafide use and occupation. They would also further contend that the plaintiffs have not derived title to the suit property pursuant to a compromise decree in O.S. No. 77/1990. The other averments are also denied.
During the course of trial, the plaintiffs examined the General Power of Attorney Holder as P.W. 1 and got marked Ex. P1 to Ex.P16. The defendants examined defendant No. 2 as D.W. 1 and Ex. D1 to Ex. D6 were marked.
The learned Trial Judge on the issue regarding title has recorded a finding that the plaintiffs have become the owners of the suit schedule property pursuant to a compromise decree. The learned Trial Judge has also further held that the defendants are estopped from contending that the plaintiffs do not have title to the suit property u/s 116 of the Evidence Act inasmuch as by conduct and also by initiating proceedings under the Rent Control Act, they have acquired their right to question the title of the defendants. On other issues, the teamed Trial Judge has found that the nonce indeed was served on the partner of the firm i.e., defendant No. 2 and the tenancy has been validly terminated and the plaintiffs are entitled for a decree of ejectment The said findings have been confirmed by the teamed Appellate Judge.
Mr. Manjunatha Udupa, learned Counsel appearing for the defendants would strenuously contend that the Courts below were not Justified in recording a finding that the plaintiffs have derived title to the suit property pursuant to a compromise decree in a suit and further that they have derived title to the suit property pursuant to a Will stated to have been executed by Chanabasappa Noolvi. He further submits that the Courts below could not have recorded a finding that it is not open for the defendants to question the title of the plaintiffs as they are estopped u/s 116 of the Evidence Act Consequently he submits that the Judgments and decrees of the Courts below are liable to be interfered.
Mr. V.T. Rayareddi, learned Counsel appeasing for the plaintiffs would support the Judgment and Decree of the learned Trial Judge and Appellate Judge. He submits that it is not open for the defendants-tenants to question the title of the plaintiffs inasmuch as u/s 116 of the Evidence Act, they are estopped. He further submits that to substantiate that the plaintiffs have title to the suit property, a reference is made to the title of the plaintiff in the Rent Control Proceedings and the Compromise decree would dearly show that the plaintiffs have title to the suit property. Hence, he submits that the defendants cannot be permitted to question the title of the plaintiffs.
I have given my anxious consideration to the submissions made by the teamed counsel appearing to the parties. Indeed u/s 116 of the Evidence Act, the tenant is estopped from questioning the title of the landlord. In this regard, this proposition of law is no longer res Integra inasmuch as the Apex Court in the case of Sri Ram Pasricha Vs. Jagannath and Others, has ruled that it is not open for the tenant to question the title of the landlord. But however, it is to be noticed that it is always open for the tenant to dispute the title of the landlord, which would be in the nature of Assignment/Succession attornment. The Doctrine of Estoppel would certainly apply, where the tenant has been let into possession by the landlord. Where the landlord has not himself inducted the tenant in the disputed property and derives title like an assignee, donee, vendee, heir etc., there is no estoppel against the tenant Consequently, the tenant already in possession is entitled to show that the plaintiff does not derive title he claims but it is in some other person. Indeed it was open for the tenant to raise such a question.
In fact one of the issues framed by the learned Trial Judge is that; whether the plaintiffs prove that they are the absolute owners of the suit property? While discussing on the said issue the learned Trial Judge has referred to various proceedings, which were initiated by the defendants themselves, wherein they have clearly admitted the ownership of the plaintiffs. What is significant is that if there is an admission on the part of the tenant that he has attorned his tenancy to a particular landlord, it would certainty be difficult to the tenant to challenge his leasehold rights moreso when the title to the properly decreed on a person pursuant to a lawful decree against the landlord. Such derivative title cannot be questioned by the tenant, so long as the decree stands.
In the case on hand, it is to be noticed that the 2nd defendant representing the firm had initiated proceedings u/s 19 of the Karnataka Rent Control Act. The said proceeding is marked as Ex. P4 during trial. It is useful to extract the pleadings in the said proceedings:
That the above named petitioner is the tenant of the above named respondents 1 to 3 (plaintiffs) that the respondents 1 to 3 are landlord of City Survey No. 122/71 and CTS Ward No. III, Hubli. The petitioner it the tenant of above said premise i.e., Godown office, Waranda and open space etc., measuring the rent of the above said premises is Rs. 8,000/- per year and foot the tenancy commences from October 27th day every year. Tat the tenant is paying rent sincerely to the respondent.
That the above named tenant has paid the rents in advance to the respondent upto 1987 October on 08.11.1986. Mow the respondent No. 4 issued notice to the petitioner u/s 14 of the K.S.T. Act directing this petitioner that you have to pay the rent amount of the above said petition premises to respondent No. 4 only and not to the respondents 1 to 3.
On the basis of this pleading a finding is recorded in the said House Rent control proceedings that the plaintiffs, who were opponents therein are the owners of the suit schedule property. It is useful to extract the observation made in the earlier proceedings:
The petitioner clearly admits landlord-tenant relationship between opponent Nos. 1 to 3 and himself.
Incidentally, it is to be noticed that the said proceedings have attained finality directing the defendants to pay the rents to the plaintiffs. The other compelling circumstances would be the Ex. P3 i.e., the Compromise decree in O.S. No. 1977/1990. In the said Compromise decree, the suit property has been allotted to the share of the plaintiffs. Obviously, as stated earlier as long as the decree stands and is not set-aside by a Competent Court the defendants cannot deny the title.
As stated earlier, it is no doubt true that it is open for the defendants to question the derivative title of the landlord. The said question has been addressed by the learned Trial Judge as well as the learned Appellate Judge. That apart, the defendants have paid the rents to the plaintiffs, Ex. P7 to Ex. P13 are the rent receipts, which would conclusively prove that the 2nd defendant has acknowledged the title of the plaintiffs to the suit property and as his landlord. Hence, after acknowledging the title of the plaintiffs, it is not open for the defendants now to contend that the plaintiffs have derivative title and the estoppel u/s 116 of the Evidence Act will not come in their way in questioning the said title. Obviously, once by conduct and acquiescence, the defendant acknowledges the plaintiff as the owner/landlord of the suit schedule property, it is trite for him to take up a contention at a later point of time, when the suit is instituted for ejectment to contend that the plaintiff has derivative title and he is not competent to sue.
It is to be noticed that there is another compelling reason as to why the defendants should not be allowed to challenge the right of the plaintiffs to prosecute the suit. The plaintiffs have clearly averred in the pleadings that the defendants have paid the rents to them. Thus by conduct have attorned the tenancy In respect of the suit premises as per the terms of the original lease. Added to this, the defendants by conduct have admitted the ownership of the plaintiffs and they are their landlords. Indeed this may not be a case of estoppel within the meaning of Section 116 of the Evidence Act, which would certainly operate In favour of the landlord. The principal of Estoppel is also applicable to cases not strictly coming within the provisions of Section 116 of the Evidence Act. Indeed the case on hand would fall in one of the cases where, notwithstanding Section 116 of the Evidence Act not strictly applicable, but by acknowledging the plaintiff as the owner and paying rent to a landlord, who has derivative title, the defendant cannot at a later stage be permitted to raise a contention that he is not his landlord. Indeed the Court proposes to proceed on the general principles of Estoppel de hoarse with reference to Section 116 of the Evidence Act. The Calcutta High Court in case of Jitendra Nath Roy Chaudhury and Ors. v. Narandra Kumar Karforma and Ors. reported in AIR 1988 Cal 393 has observed thus:
For even if no such estoppel operates against a tenant who has attorned to a successor landlord, the tenant is not allowed to Impeach the title of a person to whom he has paid rent or whose tide he has otherwise recognised without showing a better title. Even though it is open for the tenant to show that no title was derived by the landlord suing in ejectment, if there has been any payment of rent and no case of fraud or misrepresentation is made out, the very fact that by payment of rent the defendant has admitted and acknowledged the person now claiming to be landlord to have actually obtained the title, is prima Jade evidence to show that the We was actually derived and when that is the position, the onus shifts to the defendants to prove that, in fact, title has not been derived. Where Section 116 of the Evidence Act would not apply in terms because the landlord who has sued for ejectment is not the original landlord who let in the tenant, but is one who has derived his title from such landlord, the tenant may not be estopped from disputing his title. But where there has been attornment to such a landlord, the tenant''s right to dispute his title would be subject to his proving that such attornment was due to mistake, misrepresentation, fraud or ignorance.
In the case on hand, it is to be noticed that the defendant had Initiated Rent Control Proceedings u/s 19 of the Karnataka Rent Control Act, 1961 wherein he had admitted ownership/title of the plaintiff and he wanted an order from the Court as to in whose favour the rent should be paid. In feet the defendant has not been able to prove that the landlord does not have title to the suit schedule property. As stated, the defendants in this case have not pleaded or proved any such mistake, misrepresentation, fraud or ignorance. Consequently, I am of the view that the Trial Court was justified in holding that their exists a relationship of landlord and tenant inter se between the plaintiff and the defendants. Another way to look at this situation would be the plaintiffs title was denied by the defendant. The learned Trial Judge has framed an issue on the question of title and having regard to the evidence adduced has come to the conclusion that the plaintiff has title to the property. Hence, I am of the view that the findings recorded by the learned Trial Judge as well as the Appellate Judge cannot be faulted.
Once a finding is recorded that the plaintiffs have title to the suit property, the defence which is set up by the defendants that in view of the derivative title, the plaintiffs are estopped from seeking ejectment in respect of the suit schedule property cannot be accepted. Having perused the judgments and decrees and also for the reasons stated, I am of the view that no substantial question of law arises for consideration in this appeal.
Appeal stands dismissed.
Mr. Manjunath Udupa, learned Counsel appearing for the defendants submits that some time may be granted to deliver vacant possession. He seeks two years time.
The same is seriously opposed by Mr. Rayareddy, learned Counsel appearing for the plaintiffs, he submits that at best three months time may be granted.
Having regard to the fact that the defendants are required to mid an alternate accommodation to relocate themselves, in fitness of things, time is extended till the end of August 2008.
The defendants shall file an affidavit within a period of four weeks incorporating the following conditions:
That the defendants shall not induct any third party into the suit schedule premises.
That they shall go on paying the agreed amount for the use and occupation of the schedule premises.
That they shall not drive the landlord to file Execution petition.
They shall not seek any further extension of time.