Calcutta High Court
Sri Santi Lal Saha vs Sri Sudhir Kumar Roy on 14 May, 1987
Equivalent citations: (1987)0CALLT230(HC), 92CWN215
JUDGMENT Sukumar Chakravarty, J.
1. This appeal is directed against the judgment and decree passed in Title Appeal No. 970 of 1981 by Sri S. R. Sircar, the learned Additional District Judge, 4th Court, Alipore, reversing those based by Shri D. Bhatttcharya, the learned Munsif, 4th Court, Alipore, in Title Suit No. 443 of 1979 and remanding the suit for fresh decision in the light of the direction as given in the judgment and decree.
2. Plaintiff Santilal Saha filed the aforesaid title suit for recovery of possession in the suit premises on eviction of the defendant Sudhir Kumar Roy therefrom and for mesne profits.
3. The case of the plaintiff in brief was that the suit property belonged to one Anadilal Mukherji and that by a registered deed of lease dated 10th August, 1958, the defendant was inducted as a tenant in the suit premises by Anadilal Mukherji for a period of 21 years beginning from 15th August, 1958 at the monthly rental of Rs. 100 according to English Calendar. On 16th July, 1979 just a month before the expiry of the lease, Anadilal Mukherji sold the suit premises to the plaintiff by a registered sale deed of the same date and both the sellor and the purchaser sent by registered post the notice of attornment to the defendant with a request to pay the rent to the plaintiff. The registered notice of attornment sent by the plaintiff however came back without being served. The plaintiff therefore refused to accept any rent from the defendant. Although no notice to quit was necessary as the lease being a lease for 21 years, terminated with the efflux of time, the plaintiff however asked the defendant to vacate the suit premises by sending a registered notice for the purpose. The defendant did not vacate the suit premises and remain in illegal possession of the same. Hence the suit.
4. The defendant filed the written statement and contested the suit. The defendant admitted the plaintiff's allegation that the defendant took lease of the premises from Anadilal Mukherji for 21 years on the basis of the registered deed of lease at the monthly rental as alleged and that the lease was to expiry with the end of 15th August, 1979. It was contended that in the said registered lease it was agreed between the parties that the leasee would not vacate the lease-hold premises before the expiry of one full year from the date of the effect of the lease and that in case the lessee vacated within one year, the lessee would have to pay to the lessor full rent for the entire period of one-year less the amount he had already paid, and that the lessee would have the option to terminate the lease on giving one calendar month notice in writing expiring with the end of the month. The defendant contended that in view of the aforesaid conditions in the deed of lease, the defendant became a monthly tenant under the West Bengal Premises Tenancy Act, 1956 in respect of the suit premises under Anadilal Mukherji at the monthly rental as alleged. The tenancy, according to the defendant, was therefore not for a period of 21 years although it was so recited in the deed of lease which was void for uncertainty. The defendant denied the avoidance of any letter sent by the plaintiff or his predecessor-in-interest. The defendant, however, disputed the legality and validity of the notice/ letter sent by Anadilal Mukherji or the plaintiff. His further defence was that after the expiry of the lease for 21 years, the defendant became the monthly tenant and that the plaintiff agreed in the last week of July, 1979, to make a new monthly tenancy in respect of the suit premises at the monthly rental of Rs. 150 with the defendant for his residence therein as a tenant under him with effect from August, 1979 and that the said agreement was still subsisting. The plaintiff according to the defendant was, therefore, not entitled to get any relief in the suit.
5. The parties went to the trial with the aforesaid pleadings and the learned trial court on consideration, of the materials in the record, decreed the suit for eviction and passed also the preliminary decree for mesne profits.
6. The defendant being aggrieved by the judgment and decree as passed by the learned Trial Court, preferred the appeal before the First Appellate Court and during the pendency of the appeal, filed the petition praying for amendment of the written statement and the said petition was ordered to be heard along with the appeal by the First Appellate Court. The schedule of the propsed amendment of the written statement by addition of the paragraph 8(a) after paragraph 8 in the original written statement was as follows : "8(a) :--that at the time of execution and registration of the deed of lease dated 10th August, 1958, relating to the suit premises in question the lessor--Sri Anadilal Mukherji was not the full owner to the extent of sixteen annas of the suit premises as he had other co-sharers who also granted nine (9) receipts to the defendant for his tenancy and had no status and was not competent to lease out the entire suit premises to the defendant, which is revealed from Ext. 2, i.e., the Deed of to the defendant, which is revealed from Ext. 2, i.e., the Deed of Conveyance dated 16th July, 1979 as the said lease was non-est and as such the lease was void abinitio and not binding upon the parties. Therefore the defendant has been a monthly tenant in respect of the suit premises under Shri Anadilal Mukherji and his cosharers according to the provisions of the West Bengal Premises Tenancy Act, 1956 and the suit is not maintainable on the determination of the socalled alleged lease by efflux of time in accordance with law."
7. The learned Additional District Judge, while hearing the appeal along with the aforesaid petition for amendment of the written statement, felt that the amendment of the written statement should be allowed and that the parties should be given opportunities to adduce further evidence on the issue as raised in the petition for amendment and accordingly the learned Additional District Judge without expressing any opinion on the merit of the suit, set aside the judgment and decree of the learned Trial Court and sent back the suit on remand with the direction that the learned Munsif would allow the defendant to amend the written statement as per the petition made in the Appellate Court on 16th December, 1981 and that the learned Munsif would thereafter frame an additional issue if necessary and would allow opportunities to both the parties to adduce further evidence both oral and documentary on the point at issue and on no other point and that thereafter the learned. Munsif would come to fresh decision after considering evidence already on record and further evidence that may be adduced after remand.
8. The plaintiff being aggrieved, has preferred this appeal.
9. Mr. Dutta appearing for the appellant-plaintiff, has submitted that the learned Additional District Judge has committed mistake both in facts and law in passing the judgment and decree whereby he has sent the suit on. remand for fresh decision after taking necessary steps in the light of the direction as mentioned in the judgment. According to Mr. Dutta the order of remand is against the relevant provisions of Order 41 Rule 23A of the Civil Procedure Code. His further submission is that the defendant having taken the tenancy in respect of the suit premises from Anadilal Mukherji, is estopped from challenging the ownership and status of Anadilal Mukherji as the landlord and that accordingly, the petition for amendment of the written statement challenging the ownership of Anadilal Mukherji as the landlord in the suit premises and containing the statement in contradiction to the original written statement, was not entertainable and was therefore liable to be rejected by the First Appellate Court. Mr. Dutta has further submitted that in the aforesaid position of the law, the defendant's contention that the deed of lease executed between Anadilal Mukherji and the defendant was void ab-initio, Anadilal Mukherji having no sixteen annas title in the suit premises and that the defendant was a monthly tenant under the West Bengal Premises Tenancy Act is not at all sustainable in law. Mr. Dutta's further submission is that the defendant is also estopped from challenging the ownership of the plaintiff in the suit premises and his status as the landlord of the defendant, as the plaintiff purchased the suit premises from Anadilal Mukherji by the registered sale deed dated 16th July, 1979 and as both Anadilal Mukherji as seller and the plaintiff as assignee gave the notice of attornment to the defendant after the said assignment and as the defendant accepted the plaintiff as his landlord. As regards the application of the principle of estoppel under Section 116 of the Indian Evidence Act, Mr. Dutta has relied on the decision in the case of Charubala Basu v. German Gomes reported in A.I.R. 1934 Cal 499.
10. Mr. Mitter appearing for the respondent defendant has supported the judgment and decree of remand passed by the learned Additional District Judge in his submission and has submitted that the defendant having not given any notice of attornment accepting the plaintiff as the assignee-landlord and having not paid any rent to the plaintiff for the suit premises cannot be estopped from challenging the title and ownership of the plaintiff in the suit premises and that the plaintiff cannot invoke Section 116 of the Indian Evidence Act on its terms against the plaintiff and that accordingly defendent's application for amendment of the written statement which also challenges the title and ownership of the plaintiff in the suit premises was entertainable by the First Appellate Court and was rightly ordered to be filed before the Trial Court by the remand order with a direction for its acceptance and allowance. In support of his such submission, Mr. Mitter has relied on the decision in the case of Santilal Dulichand Shah v. Ramesh Chandra Gujrati reported in 1980 (2) C.L.J. 518.
11. It is an undisputed fact that the defendant was inducted as a leasee for 21 years in the suit premises, viz., 1/C, Fakir Halder Lane, Calcutta by Anadilal Mukherji on the basis of the registered deed of lease dated 10th August, 1958 Ext. 1, beginning from 15th August, 1958 at the monthly rental of Rs. 100 according to English Calendar. There is no dispute to the fact as well that Anadilal Mukherji sold the suit premises subject to the lease of the defendant to the plaintiff by virtue of the registered sale deed dated 16th July 1979 Ext. 2, before the expiry of the lease of 21 years with the end of 15th August, 1979 by efflux of time. It is also an undisputed fact that the defendant did not restore posession to the landlord by surrendering the tenancy and posession of the suit premises during the lease period or subsequent thereto. The defendant is admittedly in posession of the suit premises since his taking the lease by the deed of lease Ext. 1. The defendant now by filing the application for emendment of the writ ten statement, wants to deny the lessor's sixteen annas title and ownership in the suit premises and also plaintiff's title thereto by his alleged purchase from the lessor on the basis of the sale deed Ext. 2.
12. Under Section 116 of the Indian Evidence Act the defendant is estopped from denying the title of his lessor, Anadilal Mukherji to the suit premises at the beginning of the tenancy during the continuance of the tenancy. "A tenant who had been let into possession can not deny his landlord's title, however, defective it may be, so long as he has not openly restored posession by surrender to his landlord. The decision in the case of Charubala Basu v. German Gomes reported in A.I.R. 1934 Cal. 499 is relied on. It has been further held in the said decision that tenant's estoppel operates even, after the termination of the tenancy. Such being the position, the defendant is estopped from denying, lessor's title in the suit premises and accordingly cannot challenge, the deed of lease as void on the ground that Anadilal Mukherji as lessor had no sixteen annas title to the suit premises by amending the written statement to that effect.
13. Now the question is whether the defendant is also estopped from challenging the title of the plaintiff who is the assignee by virtue of his purchase of the suit premises from Anadilal Mukherji on the basis of the registered sale deed Ext. 2 which undisputedly recited about the defendant's tenancy in the suit premises under the assignor Anadilal Mukherji. The case in A.I.R. 1934 Cal. 499 (Supra) has also answered this question. In that case the defendant originally held the land under a kabuliyat for 9 years which he executed in favour of Mr. John Louis. He got a renewal of the lease in 1320 B.E. excepting a fresh kabuliyat, for 9 years and paid rent upto 1327 B.E. for the land and for three years to the plaintiff to whom Mr. John Louis had transferred his interest in 1325 B.E. corresponding to 1918. On termination of the lease in 1922, the plaintiff asked the defandant to quit posession and had a notice served upon the defendant. The defendant was sued as a trespasser by the plaintiff for eviction after expiry of the term of the lease. It was held in that case that, the defendant was not entitled to dispute plaintiff's title.
14. Mr. Mitter has submitted that the principle of law as laid down in the decision in A.I.R. 1934 Cal 499 (Supra) based upon the facts as mentioned above will not be applicable in the present case as the defendant did not pay any rent to the plaintiff and did not accept him as his landlord by issue of the notice of attornment to the plaintiff. The materials in the record and the pleadings of the present suit have shown that the notice of attornment issued to the defendant by the transfer lessor Anadilal Mukherji was received by the defendant, but the notice of attornment issued to the defendant by the transferee plaintiff come back and was not received by the defendant. It is also an undisputed fact that the defendant did not, pay rent to the plaintiff. The question is whether in the facts and circumstances of the present case, the defendant is estopped from challenging the plaintiff's title to the suit premises.
15. Under Section 109 of the Transfer of Property Act, the transferee, in the absence of a contract to the contrary, shall posses all the rights of the lessor on transfer by the lessor. Under the relevant provisions of the Transfer of property Act fresh attornment by the lessor to the lessor's assignee may not be necessary but in practice attornment is generally insisted upon as it is useful as an acknowledgement of the tenancy, in view of the provisions of Section 109 of the Transfer of Property Act, the assignee of the lessor has as against the leasee, all the rights that the lessor had, including the light to receive the rent in terms of the lease and the lessee cannot say that he is not bound to pay the same to the assignee merely because there is no privity of contract. Attornment is not required. So Section 100 of the Transfer of Property Act entitled the lessor also to evict the lessee on termination of the lease, even if there be no attornment. Section 109 of the Transfer of Property Act however does not say anything about the estoppel of the tenant from denying the title of the assignee. It has already been stated that under Section 116 of the Indian Evidence Act which deals with estoppel of tenant, a tenant who had been let into possession by the lessor, is estopped from denying his lessor's title however defective it may be so long as he has not openly restored posession by surrender to his landlord. Section 116 of the Indian Evidence Act does not strictly apply to the case of the assignee who has derived title on the assignment of the demised promises by the lessor in his favour. The plaintiff in the instant case not being the original landlord but claiming title by purchase from the original landlord is not entitled to invoke Section 116 of the Indian Evidence Act on its terms. There may be other kinds of estopped as between such landlord and tenant even though the case may not come within the meaning of Section 116 of the Indian Evidence Act, if the tenant attorns to the assignee landlord and pays rent to such assignee landlord not by mistake or in ignorance. The position in ]aw in such circumstances has been explained in Loodfall's Law of Landlord and Tenant, 28th Edition, Vol. 1 paragraph 1730 in the following words:--as quoted from the decision in 1980 (2) C.L.J. 518. The Rule that a tenant may not dispute his landlord's title applies only to the title of the landlord who let, him in and not to that of the assignee or reversion and such title, may be disputed by the tenant. But if the tenant has paid rent to the claiming assignee or reversion or his agent, such payment is prima facie evidence of title of the assignee, and the tenant, except in a case of fraud or misrepresentation, can only defeat that title by showing that he paid in ignorance ; and that some third person is the real assignee or the reversion ; it is not enough for him to show that the claiming assignee has no title."
16. At page 195 in paragraph 192 of the book "The Law Relating to Estopped by Representation" 3rd Edition by Spencer Bower and Turner, it has been commented as follows:--
"Where a tenant with full knowledge of the facts, either expressly in writing or impliedly by acts, such as the payment or rent, attorns tenant to a person other than his original landlord or one who is claiming the estate or interest or such original landlord by assignment, succession or otherwise, he is ordinarily estopped from questioning the title of the person to whom he has so attorned."
17. The principle of law relating to what extent the doctrine of estoppel would be attracted in the similar facts and circumstances as already narrated in respect of the present case, has been discussed in detail by the Single Bench of this court presided-over by A.K. Sen, J. in the case of Dr. Chaitanya Chandra Saha v. Parimal Chandra Dutta and Ors. reported in 1979 (2) C.L.J. at page 19 para. 19 and again by the Division Bench presided over by A. K. Sen and B. C. Chakraborty, JJ. in the case of Santilal Dulichand Saha v. Ramesh Chandra Gujrati reported in 1980 (2) C.L.J. 518 which has been relied on by Mr. Mitter.
18. It is an undisputed fact in the present case as already stated that the defendant did not attorn to the plaintiff by accepting him as the landlord and did not pay any rent to the plaintiff. So the doctrine of estoppel may not be extended to the assignee like the plaintiff in the absence of attornment and payment or rent. But in view of the averment in the written statement and the additional written statement admitting plaintiff's title to the suit premises and in view of the sale deed Ext. 2 showing plaintiff's derivative title by purchase of the suit premises from defendant's lessor Anadilal Mukherji during the continuance of the lease and in view of the materials in the record showing at least the service of notice of attornment by the transferor lessor upon the defendant, the defendant can not be permitted to amend the written statement further by denying also plaintiff's title to the suit premises, even if defendant's original lessor Anadilal Mukherji was only a cosharer having no sixteen annas title to the suit premises, as sought to be contended by the defendant by amending the written statement. The plaintiff in this case has already prima facie shown his derivative title by the sale deed. Ext. 2 to establish the relationship of landlord and tenant between the plaintiff and the defendant. Further the position is different in this case. Assuming that defendant's original lessor Anadilal Mukherji was a cosharer having no sixteen annas interest in the suit premises as sought to be contended by the defendant, when he let the defendant into possession as a tenant, it is not impossible for one of the several cosharers to effectively demise a property. In such a situation it may not be open to the tenant to contend that there are other cosharers of the lessor. It has already been stated that Section 109 of the Transfer of Property Act has entitled the assignee to possess all rights of the transfer or in the absence of any contract to the contrary.
19. In paragraph 12 of the written statement, the defendant has contended that on and about the last week of July, 1979, the plaintiff finally agreed to make a new monthly tenancy in respect of the suit premises. In the additional written statement it has been contended that after the -expiry of the lease dated 10th August, 1958 on mutual agreement between the parties the plain tiff consented to the continuance of the defendant as a tenant from month to month, etc. It is, therefore, clear from the aforesaid written statement and additional written statement that the defend ant admitted plaintiff's derivative title as the assignee of the original lessor.
19A. In view of what has been discussed above we are of the view that the defendant cannot be permitted to amend the written statement by denying the original lessor's title against the statutory estoppel and by denying the plaintiff-assignee's title in contradiction to the averment already made in the written statement and against the evidence of the plaintiff's title already brought in the record in the form of sale deed Ext. 2. The learned Additional District Judge, therefore, committed mistake in taking a decision to allow the petition for amendment of the written statement and giving a direction to the Trial Court to allow such petition if filed before that, court by sending back the suit on remand for fresh decision by the Trial Court in the light of the direction as given in the Judgment of remand, after setting aside the judgment and deverse of the learned Trial Court, without deciding the appeal on merit with reference to the materials in the record. It also appears that the remand of the suit has not been in accordance with the provisions of Order 41 Rule 23 A of the Civil Procedure Code. Further it is also not understandable why the learned Additional District Judge himself did not allow the petition for amendment of the written statement which was filed by the defendant before him during the hearing of the appeal and why he himself did not frame the additional issue and sent back the suit on limited remand for decision of that additional issue alone after recording decision on other issues by keeping the first appeal pending in his file, if he decided so. It has been already shown that his such decision; was unwarranted and erroneous.
20. On careful consideration we are of the view that it cannot be just and proper on our part to decide the appeal on merit on the materials in the record when the First Appellate Court has not expressed any opinion whatsover and gave any decision on the merit of the appeal itself. We, however, are of the opinion that the ends of justice demand that the matter should be sent back on remand to the First Appellate Court concerned for decision of the first appeal on merit after/setting aside the judgment and decree on remand as passed by the learned Additional District Judge and after rejecting their petition for amendment of the written statement filed by the defendant before the First Appellate Court without expressing any opinion on merit of the suit itself.
21. In the result, the appeal is allowed. The judgment and decree of remand passed by the learned Additional District Judge are set aside. The application for amendment of the written statement filed by the appellant-defendant before the First Appellate Court is rejected and the appeal is sent back to the First Appellate Court concerned for deciding the same on merit according to law in the light of the direction and observations as made in the judgment, without being prejudiced by our expression of opinion if any on the merit of the suit. We make no order as to costs. Preparation of formal decree is dispensed, with.
Gobinda Chandra Chatterjee, J.
22. I agree.