Himachal Pradesh High Court
Pardeep Kumar vs Ashwani Kumar on 6 November, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 270 of 2017
.
Date of decision: 06.11.2019.
Pardeep Kumar ....Appellant/Defendant
Versus
Ashwani Kumar ....Respondent/Plaintiff
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No.
For the Appellant : Mr. Naresh Kaul, Advocate.
For the Respondent : Mr. R. L. Chaudhary, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
Aggrieved by the judgments and decrees concurrently passed by the learned Courts below, the defendant has filed the instant appeal.
The parties shall be referred to as the 'plaintiff' and the 'defendant'.
2. The brief facts giving rise to the present case are that the plaintiff has filed a suit for ejectment and recovery against the defendant alleging therein that the plaintiff is owner of the shop existing on Khata No. 24 min, Khatauni No. 27 min, Khasra No. 521 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 2 measuring 0-00-32 HM situated in Village and Mauza Jassur, Tehsil Nurpur, District Kangra (HP) (hereinafter referred to as the suit .
premises) as per family settlement. The suit premises was rented out to defendant on monthly rent of Rs.1500/- which was enhanced to Rs.1800/- in June 2011. The tenancy was monthly. The defendant stopped paying rent and quarreled with the plaintiff and as such, the matter was brought into the notice of Gram Panchayat, Jassur. The land over which the suit premises exists was on lease with the father of the plaintiff, who constructed two shops on the ground floor and house on the first floor. The other land owned by the plaintiff and his father on which shops have been constructed is existing adjacent to the suit premises. The lease period has expired. Out of total land measuring 0-00-64 HM in Khata No. 24 min measuring 0-00-40 HM has been purchased by the another tenant, who used to pay rent to Ramesh Chand, the brother of the plaintiff. In June 2011 the defendant failed to pay rent and on this, an application was moved to the police where a compromise was arrived at and the defendant agreed to pay the enhanced monthly rent of Rs.1800/- through one Rajinder Kumar to plaintiff. Despite undertaking, the defendant failed to pay the rent and even gave beatings to the wife of the plaintiff and tried to outrage her modesty. The plaintiff due to growing needs of the family himself intends to run a shop for his livelihood. A legal notice dated 20.7.2011 ::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 3 thereby terminating the tenancy was issued by the plaintiff, but despite notice the defendant did not vacate the suit premises and as such, his .
possession is that of a trespasser. The plaintiff is entitled to recover Rs.1800/- per month as rent of 10 months from June 2011 to March 2012. The plaintiff is also entitled to mesne profit at the rate of Rs.2500/- per month from April 2012 till the vacant possession of the shop is delivered to the plaintiff. Hence, the suit.
3. The defendant contested the lis by filing written statement.
The defendant has taken preliminary objection that the suit is not maintainable. On merits, the defendant admitted the tenancy, however, contended that the defendant stopped paying rent when the shop was sold on 04.07.2009. The shop was sold to Sanjeev Kumar. The defendant denied the remaining averments and prayed for dismissal of the suit.
4. The replication was fled by the plaintiff wherein the contents of the plaint were reaffirmed and reasserted and those of the written statement were denied and refuted.
5. On the basis of the pleadings of the parties, the following issues were framed by the learned lower Court on 22.05.2013:-
1.Whether the plaintiff is entitled for possession of shop measuring Khasra No. 521, as prayed for?OPP
2. Whether the plaintiff is also entitled for arrears of rent w.e.f. June, 2011 till March 2012 @ Rs.1800/-, s alleged?OPP ::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 4
3. Whether suit of the plaintiff is not maintainable in the present form?OPD
4. Whether the plaintiff has no cause of action to file the present .
suit?OPD
5. Relief.
6. The learned trial Court after recording evidence and evaluating the same, decreed the suit of the plaintiff, constraining the defendant to file an appeal before the learned first Appellate Court,
7.
r to which was also dismissed vide judgment and decree dated 01.04.2017, constraining the defendant to file the instant appeal.
It is vehemently argued by Shri Naresh Kaul, learned counsel for the appellant, that the findings recorded by the learned Courts below are totally perverse inasmuch as they failed to take into consideration that the shop in question is not owned by the plaintiff and rather owned by one Sanjeev Kumar proprietor of Himachal Rice Mills, therefore, the suit of the plaintiff could not have been decreed.
8. On the other hand, Shri R. L. Chaudhary, learned counsel for the defendant, would argue that since concurrent facts of finding recorded by the learned Courts below, therefore, the same warrants no interference and the appeal filed by the defendant ought to be dismissed.
I have heard learned counsel for the parties and have gone through the records of the case carefully.
::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 59. It is not in dispute and is rather the specific case set up by the defendant that the shop in question was, in fact, given to him on .
rent by the plaintiff and even at the time of filing of the suit it was his wife Smt. Raat Rani who had been collecting the rent on behalf of her husband. His only defence is that shop stood sold vide sale deed on 03.07.2009 (not by the plaintiff) and therefore, he stopped paying rent to the plaintiff.
10. However the moot question is whether the tenant can deny the landlord title in view of Section 116 of the Evidence Act read with Section 111 (g) of the Transfer of the Property Act, which reads as under:-
Section 116 of the Evidence Act "116. Estoppel of tenant and of licensee of person in possession.-
No tenant of immovable property, or person claiming through such tenant, 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; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had title to such possession at the time when such licence was given."
Section 111(g) of the Transfer of the Property Act 111(g) by forfeiture, that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee given notice in writing to the lessee of his intention to determine the lease.
11. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the ::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 6 tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of .
the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule. Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact-situations which entail the lessee having renounced his character as such and they are (I) when the lessee sets up a title in a third person, or (ii) when he claims title in himself. In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord.
12. After the creation of the tenancy if the title of landlord is transferred or devolves upon a third person the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights acknowledges the title of transferee either expressly or by paying rent to him, the rule of estoppel once again comes into operation for it is unjust to allow tenant to approbate and reprobate and so long as the tenant enjoys ::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 7 everything which his lease purports to grant how does it concern him what the title of the lessor is [See Tej Bhan Madan vs. II Additional .
District Judge and Ors. (1988) 3 SCC 137].
13. The doctrine of estoppel as laid down in Cuthberton v. Irwing, 28 LJ Ex 306, has been noticed by the Supreme Court in Tej Bhan Madan (supra) and the same is reproduced as under:-
"This state of the law in reality tends to maintain right and justice and the enforcement of contracts which men enter into with each other - for so long as a lessee enjoys everything which his lease purports to grant how does it concern him what the title of the lessor ... is?"
r (Emphasis supplied)
14. In Anar Devi (Smt.) vs. Nathu Ram , (1994) 4 SCC 250, the Apex Court took into account the views of Jessel, M.R., who adverted to "doctrine of tenant's estoppel" in Stringer's Estate, Shaw v. Jones-Ford, where it was held as under:-
""Where a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord's title, as, for instance, if he takes for twenty-one years and he finds that the landlord has only five years' title, he cannot after five years set up against the landlord the jus tertii, though, of course, the real owner can always recover against him. That is a perfectly intelligible doctrine. He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession has not a title. That is a well-established doctrine. That is estoppel by contract."
15. In S.Thangappan vs. Padmavathy, (1999) 7 SCC 474, the Apex Court elaborated on the significance of the words ::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 8 "at the beginning of the tenancy" as contained in Section 116 of the Evidence Act and clarified that the tenant once inducted as a .
tenant by a landlord later cannot deny his title from the beginning of his tenancy. No matter howsoever defective such title of the landlord may be. The only exception being that subsequent to his induction as tenant if the landlord loses his title under any law or agreement and there is a threat to such tenant of his eviction by subsequently acquired paramount title-holder then any denial of title by such tenant to the landlord who inducted him into the tenancy will not be covered by the principle of estoppel.
16. The Apex Court in S.K.Sarma vs. Mahesh Kumar Verma (2002) 7 SCC 505, was dealing with a case of lessor who was ought to be ejected under the provisions of Indian Railways Act, 1890. The Apex Court reiterated the principles as under:-
"The rule of estoppel so enacted has three main features: (i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy; (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and (iii) section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant. The principles emerging from section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case. Rule of estoppel which governs an owner of an immovable property and his tenant would also mutatis mutandis govern a tenant and his sub-tenant in their relationship inter se. As held by the Privy Council in Currimbhoy & Co. Ltd. v. L.A. Creet [AIR 1933 PC 29] and Bilas Kunwar v. Desraj Ranjit Singh [AIR 1915 PC 96] the estoppel continues to operate so long as the tenant has not openly restored possession by surrender to his landlord. It follows that the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually ::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 9 fulfilling the obligation or by proving his landlord's title having been extinguished by his landlord's eviction by a paramount title-holder"
(Emphasis supplied) .
17. In E.Parashuraman (dead) by LRs. vs. V.Doraiswamy (dead) by L.R., (2006) 1 SCC 658, a petition for ejectment filed by the landlord under the provisions of Karnataka Rent Control Act was sought to be objected for the reason that notwithstanding the fact that one 'A' was the landlord but, however, since his name stood deleted from the record maintained by the Municipal Corporation, hence 'A' was not entitled to file the petition for ejectment. The Apex Court repelled the tenant's contention by holding that in the absence of Corporation establishing its title in any proceedings in accordance with law and in the absence of a new jural relationship of landlord and tenant between the Corporation and tenant having come into existence keeping in view the provisions of Section 116 of the Evidence Act, the tenant was estopped from challenging the relationship between the landlord and the tenant.
18. Similar reiteration of law can be found even subsequently in Vashu Deo. vs. Balkishan (2002) 2 SCC 50, Sheela and others vs. Fir Prahlad Rai Prem Prakash (2002) 3 SCC 375, Bansraj Laltaprasad Mishra vs. Stanely Parker Jones, (2006) 3 SCC 91 and Bhogadi Kannababu and others vs. Vuggina Pydamma and others (2006) 5 SCC 532.
::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 1019. The legal position is well summed up in a fairly recast judgment of the Hon'ble Supreme Court in Jaspal Kaur Cheema and .
another vs. Industrial Trade Links and others (2017) 8 SCC 592, wherein it was observed that Section 116 of the Evidence Act deals with the estoppel of a tenant founded upon contract between the tenant and his landlord. It enumerates the principle of estoppel which is merely an extension of principle that no person is allowed to approbate and reprobate at the same time. The tenant who has been let into possession cannot deny his landlord's title. The principle of estoppel arising from contract of tenancy is based upon the principle of law and justice that a tenant who could not have got possession but for a contract of tenancy admitting the right of the landlord, should not be allowed to put his landlord in some inequitable situation taking undue advantage of the position that he got and any probable defect in the title of his landlord.
20. It will be apposite to refer to the necessary observations as contained in para 9 to 16 of the judgment, which reads thus:-
9. Now, the question is whether it is permissible for the respondent-tenant to deny his landlord's title having regard to Section 116 of the Evidence Act. Section 116 of the Evidence Act reads as under:
"116 No tenant of immovable property, or person claiming through such tenant, 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;::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 11
and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such .
license was given."
10. Section 116 deals with estoppel of a tenant founded upon contract between the tenant and his landlord. It enumerates the principle of estoppel which is merely an extension of principle that no person is allowed to approbate and reprobate at the same time. The tenant who has been let into possession cannot deny his landlord's title. In Mt. Bilas Kunwar v. Desraj Ranjit Singh & Ors., 1915 AIR(PC) 96, it was held 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.
11. The principle of estoppel arising from contract of tenancy is based upon the principle of law and justice that a tenant who could not have got possession but for a contract of tenancy admitting the right of the landlord, should not be allowed to put his landlord in some inequitable situation taking undue advantage of the position that he got and any probable defect in the title of his landlord. This Court in Bansraj Laltaprasad Mishra v. Stanley Parker Jones, 2006 3 SCC 91 has enumerated the policy underlying Section 116 as follows:
"13.The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant ispermitted to question the title of the landlord at the time of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.
14. The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not ::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 12 have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession .
that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time."
12. In S. Thangappan v. P. Padmavathy, 1999 7 SCC 474, this Court has held thatSection 116 puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy, however defective the title of such landlord could be.
13. In Keshar Bai v.Chhunulal, 2014 11 SCC 438, this Court has held that a tenant is precluded from denying the title of the landlady on the general principle of estoppel between the landlord and the tenant and this principle in its basic foundation, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. It was further held that even if a landlady was not entitled to inherit the properties in question, she could still maintain an application for eviction.
14. Learned counsel for the respondents submits that the appellants are the power of attorney holders of Smt. Raj Nanda in relation to the premises. Therefore, they cannot maintain an eviction petition for self occupation. In this connection, she has relied on the decisions of this Court in Estralla Rubber v. Dass Estate (P) Ltd., 2001 8 SCC 97 and Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana & Anr., 2012 1 SCC 656.
::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 1315. In Estralla Rubber , it was held that amendment ought to be allowed where the purpose of amendment is to elaborate the defence and take additional pleas in support of the case.
.
In the instant case, the proposed plea is not for the elaboration of the existing plea. Further, in Estralla Rubber , this Court was not considering the application of Section 116 of the Evidence Act. In Suraj Lamp , this Court has held that immovable property can be legally transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of "GPA sales" or "SA/GPA/will transfers" do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or conveyances as they neither convey title nor create any interest in an immovable property. This decision also does not deal with the effect of Section 116 of the Evidence Act. Therefore, these decisions have no application to the facts of the present case.
16. In the instant case, it is not disputed by the respondents that they were put in possession of the premises as tenants thereof by the appellants. In the circumstances, they cannot dispute the title of the landlord in respect of the said premises.
21. In view of the aforesaid exposition of law, it is not open to the defendant to deny the title of the plaintiff/landlord.
22. As regards findings regarding termination of tenancy, it has specifically come on record that notice of termination of tenancy under Section 106 of the Transfer of Property Act was sent to the defendant on 20.07.2011, which was duly received by the defendant but no reply to the same was sent by him.
::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 1423. Since the contract of tenancy has been validly terminated under Section 106 of the Transfer of Property Act as otherwise has .
been found by both the Courts below, such findings cannot be interfered in the second appeal being one of the pure finding of fact.
24. To be fair to the learned counsel for the appellant, he has also moved an application for leading additional evidence to show that the shop in question has been sold to Mr. Sanjeev Kumar during the pendency of the suit and has placed on record certain documents to this effect.
25. A perusal of the application alongwith documents reveals that even though some shops have been sold to Sanjeev Kumar but the same has not been sold by the plaintiff and it is otherwise no where the case of the defendant that the shop in question which was owned by the plaintiff has been sold by him to Sanjeev Kumar. Rather he has specifically admitted in his cross-examination that the plaintiff has not sold the shop to Sanjeev Kumar. Even otherwise this plea is not available to the defendant in view of the Section 116 of the Transfer of Property Act and for the reasons already set out above.
26. As a last ditch effort, Shri Naresh Kaul, Advocate would argue that since the plaintiff has played a fraud with the Court, therefore, the judgments and decrees passed in his favour should be set aside. It is vehemently argued by Shri Naresh Kaul, Advocate, that ::: Downloaded on - 11/11/2019 20:23:58 :::HCHP 15 once the plaintiff is not the owner of the premises in question, therefore, he could not have filed a suit for possession and placed .
strong reliance on the judgment of the Hon'ble Supreme Court in Hamza Haji vs. State of Kerala and another (2006) 7 SCC 416.
27. To say the least, such contention is fallacious as it is the admitted case of the defendant himself that he took on rent a shop in question from the plaintiff. In such circumstances, the provisions of Section 111(g) of the Transfer of Property Act and Section 116 of the Evidence Act stares at his face and it is no longer open to the appellant to question the title of the landlord.
28. Consequently, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) th 6 November, 2019 Judge (Sanjeev) ::: Downloaded on - 11/11/2019 20:23:58 :::HCHP