Orissa High Court
Vishnu Deo Roy vs Rajesh Kumar Tiwari And Others on 27 October, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
R.S.A. No.210 of 2007 & R.S.A. No.7 of 2009
From the judgment and decree of learned Additional District Judge,
Jharsuguda confirming the judgment and decree of learned C.J.M.-
Civil Judge (Sr. Divn.), Jharsuguda.
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R.S.A. No.210 of 2007
Vishnu Deo Roy .................. Appellant
---versus--
Rajesh Kumar Tiwari and others .................. Respondents
For Appellant : Mr. R.K. Mohanty, Senior Advocate
Mrs. S. Mohanty, Advocate
For Respondents : Mr. N.K. Sahu, Advocate
Mr. P. Swain, Advocate
R.S.A. No.7 of 2009
Vishnu Deo Roy ................... Appellant
---versus--
Rajesh Kumar Tiwari ................... Respondent
For Appellant : Mr. R.K. Mohanty, Senior Advocate
Mrs. S. Mohanty, Advocate
For Respondent : Mr. N.K. Sahu, Advocate
Mr. P. Swain, Advocate
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing :12.10.2017 │ Date of Judgment:27.10.2017
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Dr. A.K. Rath, J.Since the common question of facts and law are involved in both the appeals, the same were heard together and are disposed of by this common judgment.
202. The appellant and respondents in both the appeals shall be described as tenant and landlord respectively for the sake of clarity.
03. The tenant as plaintiff instituted T.S. No.10/100/2 of 96/98/04 in the court of the learned C.J.M.-cum-Civil Judge (Sr. Divn.), Jharsuguda for a declaration that he is a tenant under the defendants-landlord, notice dated 10.1.1996 issued by the defendant no.1 is invalid and inoperative and subsequent agreements entered into between him and defendant no.1 from 1.1.1989 are void and not binding on him.
04. The case of the tenant is that he was inducted as a tenant by Rampiyare Tiwari, common ancestor of defendants- landlord, in respect of the suit house on a monthly rent. The rent was increased from time to time and at present the monthly rent is Rs.450/-. Rampiyare Tiwari died in the year 1984 leaving behind the defendants-landlord. Defendant no.1 entered into an agreement on 1st January, 1989 with him in the guise of landlord without disclosing that he was acting on behalf of all the defendants who were the co- sharers of the schedule house property. After receipt of the notice under Sec.106 of the T.P. Act on 15.01.1996, he could know that the defendants-landlord were joint owners of the suit premises. Defendant no.1 falsely represented to be the sole owner thereof. The defendant no.1 without the consent of other co-owners had served a notice on him on 10.01.1996 to vacate the schedule premises by 31.01.1996 on the ground of personal use and occupation. Other rooms were in occupation of the defendant no.1. He did not require the house for bonafide requirement. The notice issued by defendant no.1 was invalid and not binding on him. With this factual scenario, the suit was filed seeking the reliefs mentioned supra.
305. The defendant no.1 filed written statement denying the assertions made in the plaint. The case of the defendant no.1 is that the plaintiff was initially inducted as a tenant by his father in the suit premises on a monthly rent. The rent was enhanced to Rs.475/-. The suit premises originally belonged to his father, Rampiyare Tiwari. After death of his father, there was a family settlement in June, 1985. The suit premises with other properties fell to his share. By virtue of the family settlement, the defendant no.1 became absolute owner of the property. He entered into an agreement with the plaintiff-tenant on 01.01.1989. The plaintiff-tenant admitted the ownership of defendant no.1 over the suit premises. The defendant no.1 being the exclusive owner over the suit premises has every legal right to terminate the tenancy. Accordingly, the tenancy in between the plaintiff-tenant and defendant no.1 was terminated by issuing notice under Sec.106 of the T.P. Act. It was further pleaded that the agreement entered into between him and the tenant was voluntary in nature and there was no question of false representation. The agreement was valid. The defendant nos.2 to 9 filed written statement adopting the written statement filed by the defendant no.1. They admitted the title and ownership of defendant no.1 over the suit premises.
06. Stemming on the pleadings of the parties, learned trial court struck six issues. Both parties led evidence, oral and documentary, to substantiate their cases. The suit was dismissed. The plaintiff-tenant filed T.A. No.23 of 1999 before the learned Additional District Judge, Jharsuguda. The same was allowed. The suit was remanded to the learned trial court for de novo trial by framing an additional issue as to whether the plaintiff is a tenant under the defendant no.1 alone or under all the defendants. After remand, parties led evidence. Learned trial court held that the 4 status of the plaintiff is a tenant. The tenant is estopped from challenging the title of his landlord. He had also paid the rent to the defendant no.1 admitting the later to be his landlord. Rampiyare Tiwari, original landlord, died in the year 1984. The tenant admitted that the defendant no.1 as his landlord and entered into an agreement as a monthly tenant under defendant no.1. The plaintiff is tenant under defendant no.1 alone and not under all the defendants. The agreement dated 01.01.1989 is valid and binding on the tenant. Held so, it dismissed the suit. The tenant unsuccessfully challenged the judgment and decree of the learned trial court before the learned Additional District Judge, Jharsuguda in R.F.A. No.03 of 2006, which was eventually dismissed. The judgments and decrees of the courts below are impugned in R.S.A. No.210 of 2007.
07. Defendant no.1 in T.S. No.10/100/2 of 96/98/04 as plaintiff instituted T.S. No.57/102/4 of 96/98/04 in the same court for eviction of the tenant. The case of the landlord is that he is the absolute owner of the suit property. The tenant had executed successive rent agreements with him. The tenancy expired on 31.07.1993. He requested the tenant to vacate the suit house, since the same was required for his personal use. The defendant did not vacate. He issued a notice dated 10.1.1996 by registered post with A.D. to the defendant terminating tenancy. The tenant received the notice, but did not vacate the suit house. The tenant also did not pay the monthly rent from January, 1996.
08. The defendant-tenant filed written statement denying the assertions made in the plaint. The specific case of the tenant is that the landlord is not the sole owner of the shop room. There are other co-sharers. The landlord had never shown the family 5 settlement to him. He was inducted as a tenant by Rampiyare Tiwari in 1968. There was no such clause in the agreement that he will vacate the premises when the same will be required by the landlord. He had paid the rent till December, 1995. Rampiyare Tiwari assured him that he will continue as a tenant for an indefinite period on payment of rent. The house was not required for personal use of the plaintiff. It was further pleaded that the house stands over the nazul land. The lease executed in favour of Rampiyare Tiwari had not been renewed. The structure standing over the suit land is deemed to be the joint property of all the co-sharers of the landlord. The notice had not been issued by all co-sharers and as such invalid. He was ready and willing to pay the arrear rent with interest and cost.
09. On the interse pleadings of the parties, learned trial court struck ten issues. Both parties led evidence, oral and documentary, to substantiate their cases. The suit was decreed. The tenant challenged the judgment and decree of the learned trial court before the learned Additional District Judge, Jharsuguda in T.A. No.23/7 of 2000-2002. Learned lower appellate court set aside the judgment and decree of the learned trial court and remanded the matter back to the learned trial court with a direction to frame an issue as to whether the defendant is a tenant in respect of the suit house exclusively under the landlord or under all legal heirs of late Rampiyare Tiwari. The suit was dismissed. Being aggrieved, the tenant filed R.F.A. No.7 of 2007 before the learned Additional District Judge, Jharsuguda. Learned lower appellate court came to hold that the suit land is a nazul land. Father of the landlord was a leasee. Lease land is heritable and transferable. After death of original lessee, there was an oral agreement between the successors of leasee. The suit property fell to the share of the landlord, which was subsequently rectified by way of acknowledgement, vide Ext.2.
6There exists landlord and tenant relationship between them. The tenant had admitted that he is ready and willing to pay all the arrear rent provided the rent is accepted by the landlord and other co- owners or even by the landlord. In view of such admission by him, he is estopped to challenge the title of the landlord. Held so, it dismissed the appeal. RSA No.7 of 2009 has been filed impugning the judgments and decrees of the learned courts below.
10. The R.S.A. No.7 of 2009 was admitted on the following substantial questions of law:
"(i) In view of the admitted fact that the suit land is a Government Nazul land and the plaintiff's father had inducted the appellant as tenant, whether in absence of other legal heirs of the original land-
lord, the plaintiff alone is entitled to maintain the suit for eviction in absence of any clear proof about his exclusive title in the suit land ?
(ii) Whether the findings in T.S. No.10/100/02 of 1996/98/04 would operate as res judicata when those findings are still under challenge in the pending R.S.A. No.210 of 2007 ?
(iii) Whether the plaintiff-respondent can claim any evictable right in respect of the suit shop rooms in view of non-renewal of the original lease by the successors of the original lessee ?"
11. Heard Mr. R.K. Mohanty, learned Senior Advocate, Mrs. S. Mohanty, learned counsel for the appellant-tenant and Mr. N.K. Sahu, Mr. P. Swain, learned counsel for the respondents-landlord.
12. Mr. Mohanty, learned Senior Advocate for the tenant argued with vehemence that the suit house situates over the nazul land. Rampiyare Tiwari was the leasee. He inducted the appellant as a tenant in the year 1968. He died leaving behind the defendants as legal heirs. After death of Rampiyare Tiwari, all legal heirs became the joint owners of the suit premises. All the co-sharers have not 7 filed the suit for eviction. Thus the suit for eviction at the behest of one co-sharer is not maintainable. After death of the leasee, the respondent no.1 filed an application on 05.08.2009 for settlement of nazul land under the provisions of Orissa Government Land Settlement (Amendment) Act, 1990 (hereinafter referred to as "the Act"). The tenant had also applied for settlement of suit land under the said Act claiming to be his exclusive property. Both the petitions were rejected. In view of the same, the suit for eviction is not maintainable. The suit was decreed on the ground that in an unregistered settlement deed Ext.2, the suit premises fell to the share of the respondent no.1. The unregistered partition deed is compulsorily registrable under Sec.17 of the Indian Registration Act. Thus no reliance can be placed upon the same. He further contended that under Sec.116 of the Evidence Act, the tenant is precluded from challenge the title of the landlord. But then the tenant can raise the plea of subsequent loss of title. The original lessee died. As per clause 14 of the said deed, it was incumbent upon the successors to substitute themselves in the manner prescribed. But the same was not done. Further, the respondent no.1 abandoned his right under clause 14 of the said deed, chose to apply for fresh settlement under the Act, thereby admitting his loss of title. The State being the paramount owner rejected the respondent no.1's claim for settlement. He further contended that the judgment and decree passed in T.S. No.10/100/2 of 1996/98/04 will not operate as res judicata, since the same is impugned in R.S.A. No.210 of 2007, which is subsequent sub-judice.
13. Per contra, Mr. Sahu, learned counsel for the respondent-landlord strenuously contended that the lease was originally granted in favour of Rampiyare Tiwari, father of the respondent no.1-landlord, in respect of the nazul land in question.
8After his death, in a family partition, the suit premises fell to the share of the respondent no.1-landlord. Both the courts held that the respondent-landlord is the owner of the suit premises and the appellant is the tenant under him. It was further held that the suit premises are required for bonafide requirement of the landlord. These are essentially the findings of fact, which cannot be disturbed by this Court in a second appeal. He further contended that in T.S. No.10 of 1996, all the co-sharers were arrayed as defendants. They admitted that in the family settlement under Ext.2, the suit premises fell to the share of the defendant no.1/respondent and he is the exclusive owner thereof. The tenant is estopped from questioning the title of the landlord under Sec.116 of the Evidence Act. The appellant-tenant from 1989 was paying monthly rent to the respondent-landlord admitting him as the landlord over the premises. The tenant in his pleadings and evidence has admitted this position. The suit for eviction at the behest of one of the co- sharers is maintainable. He further contended that the judgment and decree passed in T.S. No.10/100/2 of 96/98/04 will operate as res judicata in the subsequent suit filed by the landlord. He further contended that a lease hold estate in the khasmahal land or nazul land is heritable and transferable with a right of renewal. The landlord being the successor of the original lessee has acquired valid title over the suit premises. Further, the landlord had applied before the competent authority for separate recording the land in his favour. The same having been rejected, he filed appeal, which is sub-judice. He relied on the decision of the apex Court in the cases of Sri Ram Pasricha vs. Jagannath and others, AIR 1976 SC 2335, Iswardas vs. The State of Madhya Pradesh and others, AIR 1979 SC 551 and decision of this Court in the case of Republic of India vs. Prafulla Kumar Samal and another, 1976 ILR CUT-1392.
914. Taking a cue from the decisions of the apex Court in the cases of Sri Ram Pasricha vs. Jagannath and others, AIR 1976 SC 2335, Smt. Kanta Goel vs. B.P. Pathak and others, AIR 1977 SC 1599, this Court in the case of Jogeswar Pandey vs. Trilochan Chandra Kakani @ Trilok Chand Kakani (disposed of on 23.11.2016 in R.S.A. No.550 of 2005) held that in Sri Ram Pasricha (supra), the apex Court held that jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. A co- owner is as much an owner of the entire property as any sole owner of a property is. In India Umbrella Manufacturing Co. and others, vs. Bhagabandei Agarwalla (Dead) by LRs. Savitri Agarwalla (Smt.) and others, (2004) 3 SCC 178, the apex Court held that one of the co- owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disengagement. It was further held that a suit filed by a co- owner is maintainable in law.
15. Section 3 of the Odisha Government Land Settlement Act, 1962 provides for reservation and settlement of Government land. Sub-sec.(4) of Sec.3 of the Act which was originally stood in the statute book, has undergone an amendment in the year 2009. Clause (a) of sub-sec.(4) of Sec.3 of the aforesaid Act provides:
"(a) any land of the category of Khasamahal, Nazul, Gramkantha Parambok or Abadi, wherever situated 10 and used for any purpose, may, on application, be permanently settled with the person who is in occupation of such land either on the basis of lease or otherwise for a period of at least three years prior to the appointed date, in such manner and subject to payment of such amount to the Government as may be prescribed;
xxx xxx xxx"
16. On a conspectus of the aforesaid provision, it is clear that any land of the category of Khasamahal, Nazul, Gramkantha Parambok or Abadi, wherever situated and used for any purpose, may, on application, be permanently settled with the person who is in occupation of such land either on the basis of lease or otherwise for a period of at least three years prior to the appointed date, in such manner and subject to payment of such amount to the Government as may be prescribed.
17. In Prafulla Kumar Samal and another (supra), this Court held that a lease hold estate in the Khasmahal land or Nazul land is heritable and transferable with a right of renewal. The right of a lessee in Khasmahal lands or Nazul lands are in no way different from those which one has in his own private land. The lessee's right in the Khasmahal land/Nazul land being heritable and transferable, the lessee can create a permanent tenancy in his holding. Thus in all respect the rights of a lessee are just similar to those of an owner of a private land.
18. Admittedly, the appellant was a tenant under Rampiyare Tiwari. He used to pay rent from time to time. He had executed successive agreements. The lease was granted in favour of Rampiyare Tiwari. After his death, there was a partition between the legal heirs of Rampiyare Tiwari. The respondent-landlord applied for separate recording of land in his favour. The same having been 11 rejected, he filed appeal. The Government has not resumed the land.
19. Whether it is permissible for the tenant to deny his landlord's title having regard to Sec.116 of the Evidence Act. On a survey of earlier decision, the apex Court in the case of Jaspal Kaur Cheema and another vs. Industrial Trade Links and others, (2017) 8 SCC 592, held:
"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 Bilas Kunwar v. Desraj Ranjit Singh, 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 has enumerated the policy underlying Section 116 as follows: (SCC p.96, paras 13-15) "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 is permitted 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.12
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 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.
15. 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, this Court has held that Section 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, this Court had held that (SCC p.444, para 16) 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 and application for eviction."
20. The ratio in the case of Jaspal Kaur Cheema and another (supra) proprio vigore applies to the fact of the case. Since the substantial questions of law enumerated in ground nos.(i) and (iii) are answered in affirmative in favour of the landlord, the question of res judicata is not germane for consideration.
1321. In the wake of aforesaid, the appeals, sans merit, are dismissed. No costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 27th October, 2017/Basanta