Delhi District Court
Sushil Kumar Vaid vs Smt. Surjeet Kaur on 5 January, 2021
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT JUDGE03,
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
RCA 24/2020
Sushil Kumar Vaid,
S/o Late Krishan Lal,
R/o 6/248, 2nd Floor,
Geeta Colony, Delhi -31 ................ Appellant
Versus
Smt. Surjeet Kaur,
W/o Late Iqbal Singh,
R/o A604, Exotica, East Square,
Ahinsa Khand2, Indirapuram,
Ghaziabad (UP) ............Respondent
Appeal filed on 21.09.2020
Arguments heard on - 19.12.2020
Judgment pronounced on - 05.01.2021
JUDGMENT
1. This is defendant's appeal impugning decree dt. 03.03.2020, passed under Order XII Rule 6 of CPC, whereby and whereunder the suit qua the reliefs of possession and permanent injunction was decreed against him and in favour of plaintiffrespondent. Parties shall be referred to in this judgment as per their ranks in the court below.
2. The impugned decree, inter alia, reads: "The present application of plaintiff U/o XII Rule 6 CPC stands allowed. Plaintiff is held entitled for the relief of possession and permanent injunction. Defendant has already vacated the suit property bearing 5/7/71, Third Floor, Geeta Colony, Delhi - 110031 but he is directed to hand over its peaceful vacant physical possession to the plaintiff. Further, the defendant is restrained from creating third party interest in suit property no. 5/7/71, Third Floor, Geeta Colony, Delhi - 110031."
RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 1 of 253. On 20.02.2018 plaintiff Surjeet Kaur presented the plaint for the reliefs of
(a) possession of property no. 5/7/11, 3rd floor, Geeta Colony, Delhi - 31 (for short the 'suit property'), (b) permanent injunction to restrain the defendant from creating third party interest in the suit property, (c) recovery of rental arrears for the months of December 2017 and January 2018 at the rate of Rs. 9,300/ per month, and (d) recovery of mesne profits/damages at the rate of Rs. 500 per day, in addition to Rs. 9,300/ per month, with effect from February 2018 till vacation of the suit property.
4. Plaint averments are as follows.
I) On 15.12.1999 plaintiff had purchased second floor with roof rights of property no. 5/7/11, Geeta Colony, Delhi - 31 from Ms. Santosh Luthra for a valid consideration. Erstwhile owner Ms. Santosh Luthra had handed over to her (plaintiff) the actual physical possession of the property bought by her.
II) After purchasing the same, plaintiff raised construction of the third floor, i.e. the suit property. She thus became owner of the second floor and the third floor. Ever since then, plaintiff has been in possession of the property through her tenants.
III) Vide a lease deed dt. 11.08.2017, registered on 19.08.2017, plaintiff let out the suit property, i.e. the third floor, to the defendant at monthly rental of Rs. 9,300/, excluding electricity and water charges. The tenancy was for 11 months with effect from 14.08.2017.
IV) A recital in this registered lease deed, and which learned counsel for appellantdefendant laid great emphasis on, is as follows:
"WHEREAS THE LESSOR is the General Attorney and in RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 2 of 25 possession of Built Up Property bearing No.5/7/71, Situated at Geeta Colony, Delhi - 31, vide GPA duly Regd. as document No. ................................"
V) Further, Clause 5 of the registered lease deed contains a forfeiture clause. It reads:
"That [if] the Lessee shall fail to pay the rent of any two months or default any term of this agreement deed then the Lessor shall have full right to terminate the tenancy and evict his [sic. him] from the said rented premises."
VI) Defendant allegedly violated this condition of the lease deed. He has allegedly been a habitual defaulter in payment of rent. He did not pay the monthly rentals of December 2017 and January 2018. He allegedly did this at Santosh Luthra's behest, who was trying to usurp the suit property.
VII) Plaintiff, availing her rights under the registered lease deed, terminated the tenancy vide legal notice dt. 22.01.2018 and asked the defendant to vacate and hand over possession of suit property within a month and pay the rental arrears with effect from December 2017. Defendant neither responded to the legal notice nor did he comply with its terms. Defendant instead threatened the plaintiff to hand over possession of the suit property to some other person. It is on these averments that the suit was filed.
5. Averments in defendant's written statement, filed on 02.06.2018, are as follows: I) Defendant admits that plaintiff Ms. Surjeet Kaur had let out the suit property to him vide the aforesaid registered lease deed.
II) However, he states that he has already vacated the suit property on 05.03.2018 under due intimation to plaintiff.
III) Defendant contends that plaintiff is not the 'absolute owner' of the second RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 3 of 25 and third floors. In this regard, he invites attention to the fact that in the registered lease deed plaintiff had described herself as the 'General Attorney'. He avers that Smt. Santosh Luthra, residing on the ground floor, asserted her right to be owner of the entire property and that she used to claim that GPA executed in plaintiff's favour has been revoked. He goes on to aver that Smt. Santosh Luthra served him a legal notice to this effect and 'declared' that plaintiff Surjeet Kaur was merely a GPA holder. He submits that GPA stood revoked on 18.04.2013 and the factum of such revocation was published in Rashtriya Sahara on 26.07.2013.
IV) He denies that he was a defaulter in payment of rentals. He states that rent till December 2017 stands paid and that since he vacated the suit property on 05.03.2018, the security amount automatically stood adjusted, except a sum of Rs. 2,600/, which he is ready to pay.
V) He denies receipt of plaintiff's legal notice dt. 22.01.2018.
VI) Besides the above, he states that suit is bad for nonjoinder of Smt. Santosh Luthra. He accuses the plaintiff of suppressing material facts as regards her locus standi to institute the instant suit. Pointing out that he has already vacated the suit property and that he has paid uptodate rent, he avers that no cause of action subsists in plaintiff's favour. He seeks dismissal of the suit.
6. In her replication, filed on 29.08.2018, plaintiff reiterates her averments as set out in the plaint and refutes those of the defendant as set out in latter's pleadings. In addition thereto, she submits that GPA executed in her favour by Ms. Santosh Luthra was backed by consideration; that she has already instituted a suit for declaration and permanent injunction against Ms. Santosh Luthra; that on RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 4 of 25 01.08.2018 courtappointed local commissioner had visited the suit property, but the defendant locked it and fled away; that defendanttenant cannot deny her title, howsoever defective it may be; that the defendanttenant is in connivance with Ms. Santosh Luthra.
7. Now to the application under Order XII Rule 6 read with section 151 of CPC. Plaintiff sought a decree on the basis that it is defendant's admission that she had leased out the suit property to him under a registered lease deed on monthly rent of Rs. 9,300/; that he paid no rent for December 2017 and January 2018 and that tenancy stood determined vide legal notice dt. 22.01.2018, which notice was served on him. She points out that on 01.08.2018 courtappointed local commissioner had visited the suit property to ascertain whether the defendant is in possession or not; that local commissioner in her report, submitted on 04.08.2018, stated that defendant and his family members are in possession of the third floor i.e. the suit property.
8. Defendant in his reply to the application reiterates that he vacated the suit property on 05.03.2018 under intimation to the plaintiff; that since plaintiff has sued Ms. Santosh Luthra for the reliefs of declaration and permanent injunction, her claim over the suit property is yet to be established; that local commissioner's report stands questioned by filing of objections. Reiterating his other averments as set out in his pleadings, defendant sought dismissal of the application.
9. Arguments heard. Record perused.
10. To begin with, no quarrel can be found with the contention of learned counsel for the appellantdefendant that a decree under Order XII Rule 6 of CPC cannot be claimed as a matter of right and that the same is discretionary. In this regard, he rightly relied on the reports of State Bank of India v. M/s Midland RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 5 of 25 Industries & Ors., AIR 1988 Delhi 153 and M/s Simla Wholesale Mart v. M/s Baishnodas Kishori Lal Bhalla & Ors., AIR 1977 HP 29.
11. In the case at hand, there is no dispute that the defendant had been let into the suit property as a 'lessee' vide registered lease deed dt. 11.08.2017 at monthly rental of Rs. 9,300/, excluding electricity and water charges for 11 months with effect from 14.08.2017. In paragraphs 45 of reply on merits of his written statement, the defendant states, "In reply to these paras, it is stated that Plaintiff let out the suit premises to the Defendant, vide the Lease Deed referred to herein." In short, there is no dispute about the defendant having been inducted as a 'lessee' in the suit property at monthly rent of more than Rs. 3,500/. Thus, the lease in question is/was out of the purview of Delhi Rent Control Act, 1958.
12. Now comes the question as to who is/was the 'lessor'. It bears repetition to state that in paragraphs 45 of reply on merits of his written statement, the defendant states, "In reply to these paras, it is stated that Plaintiff let out the suit premises to the Defendant, vide the Lease Deed referred to herein." Thus, there is an admission on defendant's part that it is the plaintiff who is/was his 'lessor'. That apart, the lease deed, at the very outset, describes plaintiff Smt. Surjeet Kaur wife of late Shri Iqbal Singh, R/o 5/7/11, Geeta Colony, Delhi - 31 as the 'LESSOR'. The lease deed sets out in detail the mutual rights and duties/obligations of the lessee Sushil Kumar Vaid and the lessor Surjeet Kaur. Relevant would it be to note that in these mutual rights and duties/obligations cast upon the lessee and the lessor, Ms. Santosh Luthra is nowhere in the picture. For the present purpose, it will suffice to note only few of such mutual rights and duties/obligations. Clause 14 of the lease deed states that on expiry / termination of the lease, the lessee shall hand over peaceful and vacant possession of the suit RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 6 of 25 property intact and in good working condition, and if he fails to do so then he would be liable to pay penalty of Rs. 500/ per day to the lessor in addition to the fixed rent. Under clause 23 lessor was authorised to terminate the lease for violation of any condition of the lease and the lessee was then bound to hand over possession to the lessor. Under clauses 1 and 3 the lessee had to pay the monthly rent in advance to his lessor. Under clause 2 interestfreesecurity was to be refunded after expiry of the lease when the lessee had handed over vacant and peaceful possession to the lessor. Clause 12 authorised the lessor or her representative to inspect the suit property at all reasonable timing. Clause 5 authorised the lessor to evict the lessee in case he failed to pay rent. Given this, there can be no manner of doubt that it was none else, but plaintiff Ms. Surjeet Kaur, who was the 'lessor'. If one were to contend that someone else, other than the plaintiff Surjeet Kaur, was the actual lessor, then that would be in the teeth of mandate of sections 91 and 92 of Evidence Act.
13. The bottom line, thus far is that there existed relationship of 'lessor' and 'lessee' between the plaintiff Ms. Surjeet Kaur and defendant Sushil Kumar Vaid and that the lease was out of the purview of Delhi Rent Control Act.
14. Lessee Sushil Kumar Vaid was contractually bound (see clauses 14 and 23 of the registered lease deed) to hand over possession of the leased property i.e. the suit property to the 'lessor' Surjeet Kaur on expiry/ determination of lease. In terms of the contract, he could not have handed over possession to anyone else other than the 'lessor' Surjeet Kaur. On this count, if the lessee Sushil Kumar Vaid had any doubts about terms of the contract, then he was statutorily enjoined by section 108(q) of Transfer of Property Act 'to put the lessor into possession' of the suit property on determination of lease. This condition is implied in every lease unless there is contract and local usage to the contrary (see Thyarammal v.
RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 7 of 25People's Charity Fund, AIR 1978 Kar 125). Therefore, contractually or statutorily, lessee Sushil Kumar Vaid was under a duty to put his lessor Surjeet Kaur into possession of the leased property i.e. the suit property on expiry/ determination of the lease. It is significant to note that section 108(q) of Transfer of Property Act does not speak of 'owner'; it rather uses the word 'lessee'.
15. But, in the case at hand, the lessee did not 'put his lessor into possession' of the suit property, as was enjoined upon him by law and contract. On this count, he is being clever enough to simply say in his pleadings that he vacated the suit property on 05.03.2018. However, he does not specifically state as to whom did he actually hand over the possession to. But he gives enough hints in this regard in his pleadings when he states that plaintiff is not the absolute owner; that Ms. Santosh Luthra is the owner of the suit property; that Ms. Santosh Luthra used to assert her right to be the absolute owner and she had served upon him a legal notice to this effect declaring therein that plaintiff was merely a GPA holder and which GPA had been revoked on 18.04.2013 and published in Rashtriya Sahara on 26.07.2013. It is in his written submissions/arguments opposing the application under Order XII Rule 6 read with section 151 of CPC (which is on the Trial Court record) that he lets out the Freudian slip when he states that after he vacated the suit property on 05.03.2018, under intimation to the plaintiff, Ms. Santosh Luthra entered the same. Further, in her application under Order I Rule 10 read with section 151 of CPC (which is on the Trial Court record) Ms. Santosh Luthra toes the same line when she states that Sushil Kumar Vaid vacated the suit property on 05.03.2018 whereupon she (Ms. Santosh Luthra) came into its possession. The lessee, under the contract and in terms of the law, was not simply to vacate the suit property, but he was duty bound to put his lessor into its possession. His simply vacating the suit property and thereby RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 8 of 25 facilitating someone else, other than his lessor, to take over the possession was contrary to law and the contract. He had to put his lessor into possession of the leased property. He was not to simply vacate and leave, thereby facilitating the individual residing in the very same building and asserting her rights hostile to his lessor to come and occupy it.
16. The defendant, however, takes the defence of eviction by title paramount. According to him, Ms. Santosh Luthra stood in the position of title paramount. It is no doubt true that under the law eviction by title paramount is a good defence, which brings to an end lessee's obligation to put the lessor in possession of the property under section 108(q) of Transfer of Property Act. Essentials of the defence were thus set out in Vashu Deo v. Bal Kishan, AIR 2002 SC 569: "To constitute eviction by title paramount so as to discharge the obliga tion of the tenant to put his lessor into possession of the leased premises three conditions must be satisfied: (i) the party evicting must have a good and present title to the property; (ii) the tenant must have quitted or di rectly attorned to the paramount titleholder against his will; and (iii) ei ther the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount titleholder or there must be an event, such as a change in law or passing of decree by a competent court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount titleholder directly; or, in others words, the paramount titleholder must be armed with such legal process for eviction as cannot be lawfully resisted. The burden of raising such a plea and substantiating the same, so as to make out a clear case of eviction by paramount titleholder, lies on the party relying on such defence."
17. In Vashu Deo (supra) a Trust owned certain premises. The Trust let out the premises to a tenant, who in turn inducted a subtenant. The tenant sought to evict the subtenant for nonpayment of rent. The owner/landlord (Trust) too sued to evict the tenant on the ground of subletting. In the action by the tenant RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 9 of 25 against the subtenant the defence taken was that after institution of the lis by the owner/landlord (Trust), the subtenant had directly attorned to the owner/landlord (Trust) and entered into a direct tenancy with it, and as such tenant's right to secure eviction had come to an end. It was held that under the given fact situation the defence of eviction by title paramount was not available to the subtenant. Apex Court observed: "12. We have already stated that the respondent's [tenant's] tenancy in the suit premises will not come to an end unless and until a decree for eviction on one of the grounds available under the Rajasthan Act has been passed against him and termination of his tenancy upheld by a judicial verdict. Till then he would remain a tenant of the Trust. Mere institution of a suit for eviction by the Trust, the owner of the property, against the respondent does not bring the tenancy of the respondent to an end. The respondent cannot be said to have been evicted by title paramount. It cannot be said that the respondenttenant does not have any defence nor can he lawfully resist the suit filed by the owner Trust. The plain and simple legal position which flows is that the appellant [sub tenant] must discharge his statutory obligation to put his landlord, that is, the respondent in possession of the premises in view of the latter's entitlement to hold the tenancy premises until his own right comes to an end and the respondent must discharge his statutory obligation to put his own landlord, that is, the Trust, in possession of the tenancy premises on his entitlement to hold the tenancy premises coming to an end.
13. ....................In the case before us the plea of eviction by paramount title is not available to the appellant [subtenant] for three reasons: firstly, it cannot be said that the Trust is armed with a legal process for eviction which cannot be lawfully resisted by the respondent tenant or to which he has no defence; secondly, the attornment by the appellant in favour of the Trust is voluntary and not under any compulsion; and thirdly, it cannot be said that the Trust has such good and present title against the respondenttenant so as to hold the appellant liable to be evicted against his will. As already stated, and even at the risk of repetition, it has to be emphasised that, in view of the respondent tenant's relationship with the Trust being one governed by the provisions of the rent control law, his title as tenant (and hence as landlord as against the appellant subtenant) will not come to an end unless and until RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 10 of 25 the suit for eviction filed by the Trust against the respondent is decreed and the decree has achieved finality."
18. This Court is of the view that in the case at hand, the defence of eviction by title paramount is not available to the defendant. The three essentials of this defence are not shown to exist. Ms. Santosh Luthra did not have a 'good and present title'. What she was instead setting up was a title dispute. The defendant did not quit or directly attorn to Ms. Santosh Luthra against his will. The landlady Surjeet Kaur was not a willing or a consenting party to such direct attornment by the tenant to Santosh Luthra. Santosh Luthra was never armed with any legal process for eviction which could not be lawfully resisted by the defendanttenant or to which he had no defence.
19. The reason why I say that Ms. Santosh Luthra did not have a 'good and present title' is set out in her application itself under Order I Rule 10 read with section 151 of CPC. In the application, Ms. Santosh Luthra states that in 1999 she agreed to sell the second floor to plaintiff for a consideration of Rs. 4.50 lacs; that Agreement to Sell dt. 02.10.1999 was executed; that on execution of Agreement to Sell plaintiff paid her Rs. 65,000/ in total, did not make the balance payment and instead obtained her signatures on some blank papers fraudulently and took possession of the second floor; that plaintiff then raised construction; that when plaintiff did not pay the balance money she cancelled the registered GPA dt. 15.12.1999 vide a cancellation deed registered on 06.06.2013. Now for documents of 1999, Ms. Santosh Luthra resorts to cancellation more than 13 years later on the plea that she was made to sign documents fraudulently. This does not, to my mind, constitute a 'good and present title' for the defence of eviction by title paramount. Next, in the pleadings of the defendant I see no plea that he had quit against his will. There is no plea in writing in his pleadings that RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 11 of 25 he had been harassed by Santosh Luthra.
20. In Vashu Deo (supra) the defence of eviction by title paramount was not available in the face of the fact that the title paramount happened to a person who was admittedly the owner of the tenanted premises. If that be so, I wonder as to how such a defence can be availed of in this case when what is pleaded is at best a title dispute by Ms. Santosh Luthra. This is more so when the title dispute was sought to be created much before inception of the lease in favour of defendant (Ms. Santosh Luthra had cancelled the attorney in 2013 and the lease in favour of the defendant is of 2017).
21. Notice may also be taken here of Radheylal v. Ratansingh, 1977 MPLJ 335 : AIR 1977 NOC 340 (MP). This was a case where Municipality had let out the premises to a tenant, who in turn had inducted a subtenant. In an action for eviction by the tenant against the subtenant, defence taken was that Municipality Rules prevented subtenancy; that pursuant to a dispute between Municipality and the tenant, the subtenant had directly become a tenant under the Municipality. Referring to section 108(q) of Transfer of Property Act, Madhya Pradesh High Court held that tenant's obligation to hand over possession to the landlord on determination of tenancy cannot be escaped by the tenant contending that he has entered into a contract of tenancy with a person who has paramount title over his landlord and by voluntarily entering into contract with a person from whom his lessor was holding the lease. The landlord's tenancy had not come to an end by operation of law, and therefore, in the opinion of the Madhya Pradesh High Court, the subtenant's voluntarily becoming the tenant of the Municipality and that too without consent of his own landlord (i.e. the principal tenant) could not be set up as a defence for discharging his obligation under RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 12 of 25 section 108(q) of the Transfer of Property Act. This report of Radheylal (supra) finds a mention in Vashu Deo (supra) and quoted with approval therein.
22. Great emphasis was laid by the appellantdefendant, during the course of arguments before this court, that plaintiff Surjeet Kaur, as per the registered lease deed itself, was a mere 'General Attorney' of the suit property. But then, being a mere 'General Attorney' of the suit property will not change the fundamental premise that under the contract (registered lease deed) it was the plaintiff, who was the 'lessor' and not anyone else. And being the lessor, possession of the suit property had to be handed over, either under the contract or the statute, to the lessorplaintiff, irrespective of whether she was a mere general attorney. The argument of appellantdefendant on this count is contrary to the terms of the contract as also the law of the land {section 108(q) of Transfer of Property Act}. The law nowhere requires that to be a 'lessor' of an immovable property, he/she must first be a real and/ or actual owner.
23. If this argument of the defendant is taken to its logical end then it would open up a Pandora's Box. And in every case, the defendant would arrogate upon himself the power to ascertain whether his 'lessor' is the 'true owner'/ 'real owner' / 'actual owner' of the leased premises or not. To take an example, in a given case, a trespasser is in settled possession and he lets in a lessee. Can the lessee turn around and say that he will not hand over possession of the leased premises to his lessor on determination of the lease for the reason that his lessor was a mere trespasser? Certainly not. Subject to a contrary to the contrary, section 108(q) of Transfer of Property Act would warrant that the lessor, even if a trespasser, be put into possession on determination of lease.
24. Next, in the case at hand, whether or not the General Attorney in favour of RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 13 of 25 his lessor stood revoked was none of lessee's concern. He was not an adjudicator to decide whether or not it had been validly revoked under the law. He was no authority to pass a verdict on title and then opt to hand over possession to one whom he thought had a better claim. Revocation of his lessor's General Attorney did not ipso facto alter the terms of the contract under which he took the suit property on lease; Surjeet Kaur continued to be his 'lessor'. The law under section 108(q) of Transfer of Property Act that he had to put his 'lessor' into possession of the suit property on determination of lease did not change owing to revocation of general attorney. Revocation of his lessor's General Attorney at the most created a title dispute, which title dispute had been sought to be created much before inception of the lease in favour of the defendant. Such a title dispute did not alter the contract and the law under section 108(q) of Transfer of Property Act. There was no verdict of any judicial forum/court that Ms. Santosh Luthra had become the actual owner.
25. Appellantdefendant submitted that 'real/actual owner' Santosh Luthra started to harass her and that he informed the plaintiff about the harassment and told her that wished to vacate and which he did vacate on 05.03.2018. Defendant in his pleadings or in his reply to the application does not state that Ms. Santosh Luthra used to harass her. And if indeed she used to harass her, then he lodged no complaint with the police or any authority. He neither approached any court of law with any such a grievance. If at all he had any doubt as to whom to hand over the possession, then he could have approached the Court under an impleader suit (Order XXXV of CPC).
26. It was argued that plaintiff has sued the real owner Ms. Santosh Luthra for the reliefs of declaration and permanent injunction and she admits therein that the General Attorney on the strength of which the suit property had been let out to RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 14 of 25 him has been cancelled. This argument is meritless. A lessor being involved in litigation(s) with another, over title qua the property leased out to him, does not at all enure to lessee's benefit. Mere pendency of such a litigation is not a formal declaration of Santosh Luthra's title. It does not confer any right under the law to the lessee to hand over possession to the rival litigant in the title dispute. Under the law it was the lessor who had to be put back in possession, irrespective of whether or not his title is/was defective. It will neither change the terms of the contract under which he had taken the suit property under the lease from his lessor.
27. Replying on D. Satyanarayan v. P. Jagadish, AIR 1987 SC 2192 it was argued that a tenant could challenge the 'derivative title' of his landlord; that the principle of estoppel under section 116 of Evidence Act is restricted to the denial of title 'at the commencement of tenancy' and consequently it is open to the tenant to show, even without surrendering possession, that landlord's title had come to an end. There can be no quarrel with this legal argument. But in the case at hand, this legal principle does not assist the defendant. The reasons are as follows:
a) First of all, the law is 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 (see Bilas v. Desraj, AIR 1915 PC 96). In the case at hand, the lessee has not put his lessor into possession of the suit property, which the latter had leased out to him.
b) Visàvis the lessee, the plaintiff cannot, be said to be having a 'derivative title', derived from Santosh Luthra. In the context of principle of estoppel RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 15 of 25 in Kumar Raj Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Limited & Ors., AIR 1937 PC 251 it was observed, "The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent, etc." In D. Satyanarayan (supra) too there is an observation to the following effect, "Thus a tenant is not precluded from denying the derivative title of the persons claiming through the landlord." In Bismillah Be (dead) By Legal Representatives v. Majeed Shah, (2017) 2 SCC 274, it was, inter alia, observed, "Though by virtue of Section 116 of the Evidence Act, 1872, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/lessee is entitled to challenge the derivative title of an assignee/vendee of the original landlord (lessor) of the demised property in an action brought by the assignee/vendee against the tenant for his eviction from the demised property under the rent laws." Therefore, it is clear that when one speaks of derivative title in the context of landlord tenant dispute, it means title of one who has since become entitled to the property, being assignee/vendee of the original landlord, after inception of lease in lessee's favour. If lessor Surjeet Kaur had transferred the title to another person during subsistence of lease in defendant's favour, then such other person could be said to be having derivative title visàvis the defendant. Insofar as the lessee Sushil Kumar Vaid is concerned, plaintiff Surjeet Kaur was holding no derivative title. Thus he cannot ride this horse of derivative title to challenge the title of plaintiff Surjeet Kaur.
c) Next, the legal principle that a lessee can challenge derivative title of RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 16 of 25 assignee/vendee of the original landlord (lessor) is subject to a very important caveat. The caveat is that once the lessee has attorned to assignee/vendee of the original lessor, then he is precluded from challenging even the derivative title. In Bismillah Be (supra) it was observed' "This right of a tenant is, however, subject to one caveat that the tenant/lessee has not attorned to the assignee/vendee. In other words, if the tenant/lessee pays rent to the assignee/vendee of the tenanted property then it results in creation of an attornment between the parties which, in turn, deprives the tenant/lessee to challenge the derivative title of an assignee/vendee in the proceedings." In the case at hand, it is an admitted fact that defendant had entered into the lease contract with plaintiff Surjeet Kaur in August 2017 and that it was plaintiff Surjeet Kaur who had let him in the suit property. Further, it common ground of both the plaintiff and the defendant that rent for few months after inception of tenancy in August, 2017 stands paid. Therefore, even assuming for the sake of arguments that Surjeet Kaur had derivative title, yet the defendant is precluded from challenging her title owing to this important caveat under the law.
d) Further, in the Privy Council judgment of Kumar Raj Krishna Prosad Lal Singha Deo (supra) in the context of principle of estoppel under section 116 of Evidence Act there is an important observation and which runs as follows, "In this sense it is true enough that the principle only applies to the title of the landlord who "let the tenant in" as distinct from any other person claiming to be reversioner." Thus, what is clear is that the principle of estoppel under section 116 of Evidence Act does apply to the title of the landlord who "let the tenant in". In the case at hand, it was RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 17 of 25 admittedly, the plaintiff Surjeet Kaur who had "let in the tenant Sushil Kumar Vaid". As such, lessee Sushil Kumar Vaid is precluded from denying his lessor's title. For this additional reason defendant cannot challenge plaintiff's title.
e) It is no doubt correct that principle of estoppel under section 116 of Evidence Act is restricted to the denial of title 'at the commencement of tenancy' and that it is open to the tenant to show, even without surrendering possession, that landlord's title had come to an end. But such denial of title is through the defence of eviction by title paramount. In the case at hand, it is already held hereinabove that defence of eviction by title paramount is not available to the defendant.
28. Next, in Pt. Kishan Lal v. Ganpat Ram Khosla, AIR 1961 SC 1554 a company took a shop/office premises on lease. One fine day, it addressed a letter to the lessor stating that it desired to close down its office with effect from 01.09.1954 and that its Sales Manager Mr. Khosla will take over the office and shop in his personal capacity and will be responsible to pay the rent. The landlord applied for eviction. Apex Court observed:
6. It is one of the obligations of a contract of tenancy that the tenant will, on determination of the tenancy, put the landlord in posses sion of the property demised (see Section 108(q) of the Transfer of Prop erty Act). Unless possession is delivered to the landlord before the expiry of the period of the requisite notice, the tenant continues to hold the premises during the period as tenant. Therefore, by merely assigning the rights, the tenancy of the company did not come to an end. It was ob served by this court in W.H. King v. Republic of India [(1952) SCR 419]: "There is a clear distinction between an assignment of a tenancy on the one hand and a relinquishment or surrender on the other. In the case of an assignment, the assignor continues to be liable to the land RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 18 of 25 lord for the performance of his obligations under the tenancy and this liability is contractual, while the assignee becomes liable by reason of privity of estate. The consent of the landlord to an assignment is not necessary, in the absence of a contract or local usage to the contrary.
But in the case of relinquishment, it cannot be a unilateral transaction; it can only be in favour of the lessor by mutual agreement between them. Relinquishment of possession must be to the lessor or one who holds his interest: and surrender or relinquishment terminates the lessee's rights and lets in the lessor."
7. In the present case, the company did not surrender its rights to the appellant; it sought to transfer its rights to Khosla. The company ad mittedly did not serve the notice as required by law, nor did the appellant agree to accept the unilateral determination of the tenancy by the com pany. The true position was, therefore, that the company did not immedi ately on the service of the notice cease to be a tenant; and Khosla, be cause he was let into possession became an assignee of the rights of the company as a tenant, and he could not be regarded as a trespasser. The High Court was, therefore, in our view in error in holding that the pro ceedings were not maintainable in the Court of the Controller for posses sion. Khosla being an assignee of the tenancy rights of the company was as much liable to be sued in the Court of the Controller as the company for an order in ejectment.
29. In MEC India Pvt. Ltd. v. Lt. Col. Inder Maira & Ors., 1999 SCC OnLine Del 422 : 80 (1999) DLT 679 it was held that in terms of section 108(q), Transfer of Property Act, a lessee continues to be liable to the lessor till possession has been actually restored to lessor. It was held as under:
45. Section 108(q) thus ensures that a lessee continues to be liable to the lessor till possession has been actually restored to the lessor and a semblance of relationship subsists till that contingency takes place. His continuing in possession is expressive of his continuing stand that the tenancy, in whatever form, continues. It is said that he does not hold it adversely to the landlord only till he has unequivocally renounced his status as a tenant and asserted hostile title, but even that appears to be doubtful, for in law his possession remains permissive till it has been actually restored to the landlord.
46. In law there is presumption in favour of the continuity of the tenancy and against the possession of the tenant becoming adverse.RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 19 of 25
Furthermore, the doctrine of tenant estoppel, which continues to operate even after the termination of the tenancy, debars a tenant who had been let into possession by a landlord, from disputing the latter's title or pleading adverse possession, without first openly and actually surrendering possession of the tenanted premises and restoring them to the landlord.
47. A tenant who upon determination of the tenancy does not deliver up possession to the landlord as required by Section 108(q), cannot be heard to say that he is not a tenant--be he one at sufferance or be he one from monthtomonth. Therefore, unless the landlord is actually put into possession, the premises remain under a tenancy, which unless assented to by the landlord, has the character of one at sufferance.
48. Thus, a tenant at sufferance is one who wrongfully continues in possession after the extinction of a lawful title and that a tenancy at sufferance is merely a legal fiction or device to avoid continuance in possession from operating as a trespass. A tenant remaining in possession of the property after determination of the lease does not become a trespasser, but continues as a tenant at sufferance till possession is restored to the landlord. The possession of an erstwhile tenant is juridical and he is a protected from dispossession otherwise than in due course of law. Although, he is a tenant, but being one at sufferance as aforesaid, no rent can be paid since, if rent is accepted by the landlord he will be deemed to have consented and a tenancy from monthtomonth will come into existence. Instead of rent, the tenant at sufferance and by his mere continuance in possession is deemed to acknowledge both the landlord's title and his (tenant's) liability to pay mesne profits for the use and occupation of the property.
49. To sum up the legal position or status of a lessee whose lease has expired and whose continuance is not assented to by the landlord, is that of a tenant at sufferance. If, however, the holding over has been assented to in any manner, then it becomes that of a tenant from month tomonth. Similar, i.e. from monthtomonth, is the status of a lessee who comes into possession tinder a lease for a period exceeding one year but unregistered. He holds it not as a lessee for a fixed term, but as one from monthtomonth or yeartoyear depending on the purpose of the lease. If upon a tenant from monthtomonth (or yeartoyear) and in either of the aforesaid two contingencies, a notice to quit is served, then on the expiry of the period, his status becomes of a tenant at sufferance. Waiver of that notice, or assent in any form to continuation restores to him his status as a tenant from monthtomonth, but capable, of once again being RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 20 of 25 terminated with the expiry of any ensuing tenancy month.
30. This judgment of MEC India (supra) was quoted with approval in Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393.
31. Now to the aspect of determination of tenancy. The tenancy in the present case stood determined for multiple reasons. The plaintiff states that the defendant paid no rent since December 2017. The tenant says he paid the monthly rent till December 2017. As per the contract, the security money was to be refunded on handing over of vacant and peaceful possession to the lessor. Therefore, by virtue of the forfeiture clause in clause 5 of the lease deed on nonpayment of rent for two months the tenancy stood determined {section 111 (g) (1) of Transfer of Property Act}. The tenancy also stood determined on account of the fact that lessee questioned his lessor's ownership {section 111 (g) (2) of Transfer of Property Act}. Naeem Ahmed v. Yash Pal Malhotra (deceased) through LRs & Anr., 188 (2012) DLT 579 holds that on a lessee denying lessor's ownership of a tenanted premises, the lease of the lessee is legally brought to an end. The tenancy, since after filing of the suit, also stood determined by efflux of time (section 111 (a), Transfer of Property Act).
32. To sum, in the case at hand:
a) It is not in dispute that plaintiff and the defendant stood in the position of lessor and lessee.
b) It is not in dispute that tenancy was out of the purview of Delhi Rent Control Act.
c) The lessee Sushil Kumar Vaid, as discussed hereinabove, cannot challenge the title of his lessor, who had actually let him in the suit property.
d) The lease already stood determined. After determination of the lease, the lessee is a tenant at sufferance.
RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 21 of 2533. Given this, it was a fit case under Order XII Rule 6 read with section 151 of CPC to pass a decree for possession and permanent injunction against the lessor Sushil Kumar Vaid, whose status is/was that of a tenant at sufferance until and unless possession of the suit property is restored to his lessor.
34. It was argued that the decree itself notes that 'defendant has already vacated the suit property' and as such it is a nonexecutable paper decree. It was also argued that defendant, having already vacated the suit property, cannot now be 'restrained from creating third party interest' and be asked to 'hand over its peaceful vacant physical possession' to plaintiff as ordained in the decree. This argument is meritless. Reasons thereof are as follows.
a) As already set out hereinabove, under the law lessee continues to be liable to the lessor till possession has been actually restored to the lessor and a semblance of relationship subsists till that contingency takes place. In M.C. Chockalimgam & Ors. v. V. Manickavasagam & Ors., (1974) 2 SCC 48 it was observed, "Law in general prescribes and insists upon a specified conduct in human relationship or even otherwise. Within the limits of the law, courts strive to take note of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to be handed over to the lessor. Besides under Section 108(q) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessee's continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful possession."
b) Under the law, a landlord continues to retain legal possession although the RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 22 of 25 actual possession, user and control may be with the tenant {Sadashiv Shyama Sawant v. Anita Anant Sawant, (2010) 3 SCC 385}. In the case at hand, the legal possession was thus with the lessor Surjeet Kaur. And the manner of taking possession by Santosh Luthra has no sanctity of law.
c) Transfer of possession to Ms. Santosh Kaur was done after the suit had been filed. Thus, such a transfer is hit by section 52 of Transfer of Property Act. Section 52 of Transfer of Property Act is as follows: "During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
d) In Dhansingh v. Sushilabai, AIR 1968 MP 229 delivery of possession of land by the judgment debtors, in a suit, in favour of their transferees during pendency of the suit was held to hit by the doctrine of lis pendens under section 52 of Transfer of Property Act. Delivery of possession pendente lite was held to be falling within the ambit of 'otherwise dealing' as occuring in section 52 of Transfer of Property Act.
RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 23 of 25e) In Radheylal (supra) where the subtenant took the plea of displacing the principal tenant and voluntarily entering into contract directly with the Municipality (the owner) on the legal principles of attorning under the title paramount it was held that such transaction had taken place during the pendency of the suit between his landlord and himself and therefore, it was hit by the provisions of Section 52, Transfer of Property Act. Thus, in this case too, the transaction between the lessee and Ms. Santosh Luthra has to be held to be hit by section 52, Transfer of Property Act.
f) The doctrine of lis pendens is intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of the court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the Court's power to decide a pending dispute or frustrate its decree.
35. Now to some of the judgments relied upon by learned counsel for the appellantdefendant. It was argued that since the defendant, after having vacated the suit property, raised a dispute qua plaintiff's ownership, and also put up a denial about receipt of the notice under section 106 of Transfer of Property Act, a decree under Order XII Rule 6 read with section 151 of CPC could not have been passed. Reliance was placed on Smt. Radha Lal v. M/s Jessop Company, AIR 1992 Delhi 331. This argument cannot be accepted. It has been held hereinabove that the denial of title of the lessor is legally not tenable. Under the law, serving a notice under section 106 of Transfer of Property Act is not the only way to determine a tenancy. It has also be been held hereinabove that tenancy stood determined under clauses (1) and (2) of section 111 (g) of Transfer of Property Act as also by efflux of time under section 111 (a) of Transfer of Property Act.
RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 24 of 2536. It was next argued that issues raised in the suit were disputed and the same could not have been resolved without recording of evidence. For this, reliance was placed on Lalita Sahoo & Ors. v. Rania Das & Ors., AIR 2004 Orissa 152; Smt. Dipali Biswas & Ors. v. Reserve Bank of India & Ors., AIR 2006 Calcutta 137; Saket Cultural Club (Regd.) v. Oriental Bank of Commerce, 98 (2002) DLT 20 and Kanti Singh & Ors. v. Project & Equipment Corporation of India Ltd., 70 (1997) DLT 419. In the case at hand, (a) it is admitted that plaintiff and the defendant stood in the position of lessor and lessee; (b) it is admitted that tenancy was out of the purview of Delhi Rent Control Act, (c) lessee Sushil Kumar Vaid, as discussed hereinabove, cannot challenge the title of his lessor, who had actually let him in the suit property; and (d) lease already stood determined. After determination of the lease, the lessee is/was a tenant at sufferance.
37. To sum up, the impugned decree dt. 03.03.2020 of learned Trial Court is liable to be upheld with the slight modification that the defendant is also liable to pay the admitted amount of Rs. 2,600/. In paragraph 6 of reply on merits of his written statement he states that he is only liable to pay Rs. 2,600/. Decree sheet be drawn up accordingly.
38. Trial court record be sent back with a copy of this judgment. Appeal file be consigned to record room.
Digitally signed by MURARI MURARI PRASAD SINGH Location: Court PRASAD No.7, Announced in the open Court Karkardooma SINGH Courts, Delhi Date: 2021.01.05 on 5th January, 2021 14:00:13 +0530 (M. P. Singh) Addl. District Judge03, East, Delhi 05.01.2021 RCA 24/2020 Sushil Kumar Vaid v. Surjeet Kaur Page 25 of 25