Allahabad High Court
Shri Shiv Prakash vs Additional District Judge Court No - 24, ... on 18 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2588
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 05 Case :- MATTERS UNDER ARTICLE 227 No. - 3423 of 2018 Petitioner :- Shri Shiv Prakash Respondent :- Additional District Judge Court No - 24, Kanpur Nagar And 4 Others Counsel for Petitioner :- Manish Tandon Counsel for Respondent :- Gyanendra Pratap Sharma,Neeraj Dube Hon'ble Surya Prakash Kesarwani,J.
"Main questions involved in this petition are:-
(a) Whether a judgment beyond pleading is sustainable?
(b) Whether owner of a building who inducted a person as tenant, is not landlord of the building for reason that the building is constructed over a leased land which is owned by Cantonment Board?
(c) Scope of a rent case?"
1. Heard Sri Manish Tandon, learned counsel for the plaintiff-petitioner and Sri Shaktidhar Dube holding brief of Sri Neeraj Dube, learned counsel for the defendant-respondent No.2.
FACTS
2. Briefly stated facts of the present case are that one Sri A.P.S. Carvalho has obtained lease of Survey No.551/198 from the Cantonment Board, Kanpur measuring 4560 square feet, which was registered on 13.03.1947. He also obtained permission from the Cantonment Board, Kanpur to construct the building over the demised land which was granted by the Cantonment Board, Kanpur, vide letter No.1/6/8156 dated 13.11.1964. However, the aforesaid Sri A.P.S. Carvalho transferred the leased land to the original plaintiff Smt. Lakshmi Devi by a registered deed dated 11.05.1965. The aforesaid transfer was regularised by resolution of the Cantonment Board dated 22.10.1982 with reference to CVR dated 07.07.1971. The original plaintiff/ landlady constructed a house over the leased land. She had inducted one Sri Suresh Chandra Khanna (husband of the defendant-respondent No.2) as tenant in the said house. Thus, the owner and landlady of the disputed house was the original plaintiff Smt. Lakshmi Devi and Sri Suresh Chandra Khanna was the original tenant and after his death, the tenancy was succeeded by his wife Smt. Bina Khanna (defendant-respondent No.2 herein).
3. The original plaintiff-landlady filed a release application under Section 21(1)(a) of U.P. Act XIII of 1972 for release of the disputed house on the ground of her bona-fide need and also eviction of the tenant on the ground of subletting. The aforesaid case was registered as Case No.40 of 2003 (Smt. Lakshmi Devi vs. Suresh Chandra Khanna). During pendency of the rent case, the original landlady Smt. Lakshmi Devi died. She was succeeded by her husband Ram Chandra Gupta.
4. In the written statement, the tenant admitted the plaintiff-landlady to be the owner and landlady of the disputed house. He also admitted himself to be the tenant of the plaintiff-landlady. The tenant has not taken any objection before the trial court either disputing the landlordship of the landlady or the applicability of the provisions of U.P. Act XIII of 1972. On merit, the said case was decided and it was decreed by judgment dated 18.09.2015 passed by the Prescribed Authority/ Civil Judge (Senior Division), Kanpur Nagar. Aggrieved with this judgment, the tenant filed a Rent Appeal No.81 of 2015 {Suresh Chandra Khanna (deceased) and another vs. Smt. Lakshmi Devi (deceased) and others}. It appears that during pendency of the appeal, the husband of the plaintiff-landlady, namely Sri Ram Chandra Gupta also died and he was succeeded by heirs and legal representatives including the petitioner. In the memorandum of appeal, the tenant has not taken any ground either disputing or denying the applicability of U.P. Act XIII of 1972 or the plaintiff to be the landlord of the disputed house.
5. By judgment dated 31.01.2018 passed by Additional District Judge, Court No.24, Kanpur Nagar, the appellate court allowed the appeal of the tenant beyond the pleadings, on the ground that U.P. Act XIII of 1972 is not applicable in view of Section 2(1)(a) as the disputed property is owned by the Cantonment Board/ Government of India. Aggrieved with this judgment, the plaintiff-landlord has filed the present petition under Article 227 of the Constitution of India.
SUBMISSIONS:-
6. Learned counsel for the plaintiff-landlord submits as under:
(i) The appellate court has committed manifest error of law to travel beyond the pleadings of the case and grounds of appeal and, therefore, the impugned judgment of the appellate court is not sustainable.
(ii) Section 2(1)(a) makes the U.P. Act XIII of 1972 to be not applicable only with respect to any building of which the Cantonment Board is the landlord. The word 'building' has been defined in Section 3(i) and the word 'landlord' has been defined in Section 3(j) of the U.P. Act XIII of 1972. The disputed house is a building which is owned by the plaintiff and which was constructed over the leased land. Therefore, so far as the disputed building is concerned, the plaintiff is undisputedly the landlord. Therefore, the provisions of Section 2(1)(a) is not attracted on the facts and circumstances of the present case but the appellate court, without application of mind and without realising that the applicability of the provisions of U.P. Act XIII of 1972 is not part of pleadings or the memorandum of appeal; allowed the appeal and thus, committed grave error of law.
(iii) Even otherwise the provisions of Section 2(1)(a) are not attracted in view of the law laid down by Hon'ble Supreme Court.
(iv) It was admitted case of the tenant that the plaintiff is the landlord and he is the tenant of the disputed house. Therefore, he is stopped from denying the landlordship of the plaintiff-petitioner in view of provisions of Section 116 of the Indian Evidence Act and the law laid down by Hon'ble Supreme Court in D. Satyanarayana vs P. Jagadish, (1987) 4 SCC 424 and the judgment of this in Aj Prakashan Ltd. vs. Vinit Sachdeva and another, 2017 (3) ARC 537 (Para-13) and another judgment of Hon'ble Supreme in Apollo Zipper India Ltd. vs. W. Newman and Co. Ltd., 2018 (3) ARC 187 (Paras-45, 46, 47 and 59).
7. Learned counsel for the respondent submits as under:-
(i) The prescribed authority had no jurisdiction to entertain the rent case filed by the plaintiff-landlady in view of the bar created by Section 2(1)(a) of U.P. Act XIII of 1972. Therefore, the appellate court has not committed any error of law to allow the appeal and to set aside the judgment passed by the Prescribed Authority. Reliance is placed on the judgment of this court in the case of Mohd. Hanif vs. Rent Control and Eviction Officer and others, 2006 (65) AllLR 885 (para-4).
No other point has been argued by the learned counsel for the tenant respondent before me.
DISCUSSION AND FINDINGS:-
8. I have carefully considered the submissions of learned counsels for the parties.
Whether a judgment beyond pleadings can be sustained?
9. As per provisions of Order VI Rule 1, C.P.C., 'pleading' shall mean plaint or written statement. Order VI Rule 2 provides that every pleading shall contain only, a statement in a concise form of the material facts on which the party relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph, dates. Sums and numbers shall be expressed in a pleading in figures as well as in words. Thus, a party cannot make out a case on the basis of an evidence for which he/ she has laid no foundation in the pleadings. It is fairly well settled that no amount of evidence can prove a case for a party who has not set up the same in his/ her pleadings.
10. As per Order XX Rule 4, C.P.C., judgments of a court of small causes need not contain more than the points for determination and the decisions thereon while the judgments of other courts shall contain a concise statement of the case, the points for determination and the decision thereon and the reason for such decision. In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit. The object of pleadings is to enable the courts to decide the rights of parties in trial as held by Hon'ble Supreme Court in State of Maharashtra vs. Hindustan Construction Company Ltd., (2010) 4 SCC 518 (Para-16).
11. In Poonam Vs. Sumit Tanwar, (2010) 4 SCC 460 (Para-22), Hon'ble Supreme Court explained the provisions of Order VI Rules 1 and 2, C.P.C. and held as under:
"In case, petitioner's counsel is not able to raise a factual or legal issue, though such a point may have a good merit, the Court should not decide the same as the opposite counsel does not "have a fair opportunity to answer the line of reasoning adopted" in this behalf."
12. As observed in paragraph-4 above, the defendant-respondent has admitted himself in the written statement to be the tenant of the building in question and the plaintiff-petitioner to be landlord thereof. Thus, the landlord-tenant relationship in respect of the disputed building was admitted. Neither in the written statement nor in the memorandum of appeal, the defendant-tenant/ respondent has not taken any objection or ground disputing or denying the applicability of U.P. Act XIII of 1972. Therefore, in the absence of any pleadings, it was not permissible for the appellate court to pass the impugned judgment holding that the provisions of U.P. Act XIII of 1972, are not applicable.
13. It is the settled law that the jurisdiction of a court has to be determined on the basis of plaint allegation alone and on the defence taken in written statement. The jurisdiction of the Prescribed Authority under the U.P. Act XIII of 1972 is essentially one for eviction of a tenant or release of the tenanted accommodation of a building as defined in Section 3(i) and not as to whether the land over which building is constructed is a leased land or a free-hold land.
14. In Municipal Corporation of the City of Jabalpur vs. State of M.P., AIR 1966 SC 837 (para-9), Hon'ble Supreme Court held, as under:-
"Save in exceptional cases, parties should be held strictly to their pleadings and if owing to discovery of new matter or grounds, there is need to add to or to modify the allegations either in the petition or in the counter- affidavit, the Court should insist on formal amendments being effected, for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet it with appropriate defences."
15. In Bhagwati Prasad vs. Chandramaul, AIR 1966 SC 735 (paras-9 and 11), a four judges bench of Hon'ble Supreme Court held as under:
"9. There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. The same principle was laid down by this Court is Sheodhar Rai & Others v. Suraj Prasad Singh & Others, AIR 1954 SC 758. In that case, it was held that where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the Court cannot, on his failure to prove the said case, permit him to make out a new case which is not only made in the written statement, but which is wholly inconsistent with the title set up by the defendant in the written statement. The new plea on which the defendant sought to rely in that case was that he was holding the suit property under a shikmi settlement from the nearest reversioner. It would be noticed that this new plea was in fact not made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by in its pleadings.
11. Therefore, in dealing with Mr. Setalvad's argument, our enquiry should not be so much about the form of the pleadings as their substance; we must find out whether the ground of licence on which the plaintiff's claim for ejectment has been confirmed by the High Court was in substance the subject-matter of the trial or not; did the defendant know that alternatively, the plaintiff would rely upon the plea of licence and has evidence been given about the said plea by both the parties or not ? If the answers to these questions are in favour of the plaintiff, then the technical objection that the plaint did not specifically make out a case for licence, would not avail the defendant."
16. The exceptional cases for the principles and test for upholding a decision on a plea not covered by pleadings and issues struck in the trial court, has been generally summarised by a Division Bench of Calcutta High Court in Saraswati Debi and others vs. Saty Narayan Gupta, AIR 1977 Calcutta 99 (para-8), as under:
"(i) The parties must have fully known before going to the trial that the new plea taken would be thrashed out and decided in the suit to have a bearing on the ultimate result of the suit. None of the parties should be taken by surprise on account of a new plea foreign to the pleading of the party raising it.
(ii) The opponent of the party setting up the new plea must have accepted the challenge of the said plea without objection as to its absence in the pleading or issue by adducing rebutting evidence or otherwise dealing with the same.
(iii) The party challenging the plea must have reasonable opportunity to meet it effectively and to adduce evidence against the said plea.
(iv) The Court must see that by allowing one party to raise a new plea or case not pleaded in his pleading, or for which no issue was framed, no prejudice or injustice is done to the other party.
(v) The new plea set up should not be otherwise legally barred. If the conditions mentioned above are fulfilled, then the Court can legitimately act upon the new plea not finding any place in the pleading and on which no issue has been framed when the said pleas are proved. The absence of issue in a case like this will be of no avail and the objection, if any, becomes technical having no value."
17. In R.K.S. Chauhan (Dr. vs. State of U.P. (1995) (Supp.3) SCC 688 (Para-33), Hon'ble Supreme Court held that a decision on a plea not raised in the petition is not sustainable.
18. In Bharat Singh and others vs. State of Haryana and others, (1988) 4 SCC 534 (para-13), Hon'ble Supreme Court held as under:
"13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."
19. In Ramrao and others vs. All India Backward Class Bank Employees Welfare Association and others, (2004) 2 SCC 76 (para- 26), Hon'ble Supreme Court held as under:
"26. It has been accepted at the Bar that no factual foundation was laid down in the writ petition before the High Court as to whether the Bank complied with the requirement of Clause 7.7 of the procedure providing for exchange of reservation between SC/ST and vice-versa. The question as to whether any eligible scheduled caste candidate was available for promotion to the post of Officer or not is essentially a question of fact. It was, thus, not open to the High Court to advert to the said question."
20. In V.K. Majotra vs. Union of India and others, 2003 (8) SCC 40 : JT 2003 (Suppl.2) SC 137 (Para- 5), Hon'ble Supreme Court held as under:
"5. We have perused the pleadings of the writ petition and the counter affidavits filed by the respondents before the High Court. Counsel for the parties are right in submitting that the point on which the writ petition has been disposed of was not raised by the parties in their pleadings. The parties were not at issue on the point decided by the High Court. Counsel for the parties are also right in contending that the point raised in the writ petition was neither adverted to nor adjudicated upon by the High Court. It is also correct that the vires of Section 6(2)(b)(bb) and (c) of the Act were not challenged in the writ petition. The effect of the direction issued by the High Court that henceforth the appointment to the post of Vice-Chairman be made only from amongst the sitting or retired High Court Judge or an advocate qualified to be appointed as a Judge of the High Court would be that Sections 6(2)(b)(bb) and (c) of the Act providing for recruitment to the post of Vice-Chairman from amongst the administrative services have been put at naught/obliterated from the statute book without striking them down as no appointment from amongst the categories mentioned in Clauses (b) (bb) and (c) could now be made. So long as Section 6(2)(b)(bb) and (c) remains on the statute book such a direction could not be issued by the High Court. With respect to the learned Judges of the High Court we would say that the learned Judges have over stepped their jurisdiction in giving a direction beyond the pleadings or the points raised by the parties during the course of the arguments. The writ courts would be well advised to decide the petitions on the points raised in the petition and if in a rare case keeping in view the facts and circumstances of the case any additional points are to be raised then the concerned and affected parties should be put to the notice on the additional points to satisfy the principles of natural justice. Parties cannot be taken by surprise. We leave the discussion here."
21. In Messrs. Trojan & Co. vs. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235 (Para-22), Hon'ble Supreme Court held as under:
"It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."
22. In view of the above discussion, I hold that the impugned judgment on the points beyond pleadings cannot be sustained.
Scope of release application for eviction of a tenant in a rent case:-
23. It is settled law that in an eviction suit filed by a landlord against the defendant-tenant, the landlord and tenant are the only necessary parties. The plaintiff-landlord in such a suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. Firstly, plaintiff-landlord has to prove that there exists a relationship of landlord and tenant between the plaintiff and the defendant and secondly, the grounds on which the plaintiff-landlord has sought defendant-tenant's eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds. The the question of title to the suit premises is not germane for the decision of a eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and also proves existence of the grounds on which the eviction is sought, the eviction suit succeeds.
24. In the present set of facts, it is the admitted case of the defendant-respondent that he is tenant of the disputed building and the plaintiff-petitioner is the landlord. The relationship of landlord and tenant between the plaintiff-petitioner and the defendant-respondent was undisputed. Under the circumstances, the appellate court committed a grave error of law to hold that since the disputed building is standing over a leased land of Cantonment Board of which the Cantonment Board is the owner and, therefore, the provisions of U.P. Act XIII of 1972, shall not be applicable since the plaintiff-petitioner is not the owner of the land.
Whether plaintiff-petitioner is landlord of the building in question which was built over leased land.
25. Section 21(1)(a) provides that the Prescribed Authority may, on an application of landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specific part thereof, if he is satisfied that the building is bonafidely required by the landlord for occupation by himself or any member of his family or any person for whose benefit it is held by him either for residential or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust for the objects of the trust or where a building is in a dilapidated condition and it is required for the purposes of demolition and new construction. The eviction of tenant under Section 21(1) of the U.P. Act XIII of 1972 is only with respect to a building as defined in Section 3(i) of the U.P. Act No.XIII of 1972, which is an inclusive definition and means a residential or non-residential roofed structure. Neither Section 21(1) nor the definition of the word "building" in Section 3(i) of the U.P. Act XIII of 1972 requires that the land of the building should be free-hold or it should not be a leased land. Therefore, for the purposes of Section 21(1) of the Act, the relevant consideration is the building of which the applicant should be the landlord and person whose eviction is sought, should be a tenant and there is landlord-tenant relationship between them.
Principles of Estoppel:-
26. Thus, as per undisputed facts as briefly noted above and also as per his own stand of the defendant-respondent he is the tenant of the disputed house of which the plaintiff-petitioner is the landlord. Therefore, the defendant-respondent is estopped from denying the landlordship of the plaintiff-petitioner in view of Section 116 of the Indian Evidence Act. This legal position is also supported by the law laid down by Hon'ble Supreme Court in the case of D. Satya Narayan vs. P. Jagdish (1987) 4 SCC 424 and State of Andhra Pradesh and others vs. D. Raghukul Pershad (dead) by LRs and others, (2012) 9 SCC 584. As a general rule, 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. Hence, the defendant-respondent who was tenant of the plaintiff-petitioner/ landlord cannot deny the landlord's title and he has to surrender possession to the plaintiff-petitioner before he can challenge the title of the plaintiff-petitioner.
27. In the case of D. Raghukul Pershad (dead) by LRs and others (supra), Hon'ble Supreme Court held in Para-6, as under:-
"6. The law is settled by this Court in D. Satyanarayana vs. P. Jagdish 1987(4) SCC 424 that the tenant who has been let into possession by the landlord cannot deny the landlord's title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord. Although, there are some exceptions to this general rule, none of the exceptions have been established by the appellants in this case. Hence, the appellants who were the tenants of the respondents will have to surrender possession to the respondents before they can challenge the title of the respondents."
28. In Apollo Zipper India Ltd. vs. W. Newman and Co. Ltd., 2018 (3) ARC 187 (Paragraphs-45, 46 and 47), Hon'ble Supreme Court held as under:-
"45. It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the Rent Laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.
46. In other words, the burden of proving the ownership in an eviction suit is not the same like a title suit. (See Sheela & Ors. vs. Firm Prahlad Rai Prem Prakash, 2002 (3) SCC 375, Para 10 at page 383 and also Boorugu Mahadev & Sons & Anr. vs. Sirigiri Narasing Rao & Ors. 2016 (3) SCC 343, Para 18 at page 349 : 2016 (1) ARC 490).
47. Similarly, the law relating to derivative title to the landlord and when the tenant challenges it during subsistence of his tenancy in relation to the demised property is also fairly well settled. Though by virtue of Section 116 of the Evidence Act, the tenant is estopped from challenging the title of his landlord, yet the tenant is entitled to challenge the derivative title of an assignee of the original landlord of the demised property in an action brought by the assignee against the tenant for his eviction under the Rent laws. However, this right of a tenant is subject to one caveat that the tenant has not attorned to the assignee. If the tenant pays rent to the assignee or otherwise accepts the assignee's title over the demised property, then it results in creation of the attornment which, in turn, deprives the tenant to challenge the derivative title of the landlord. [See Bismillah De (dead) by Legal Representatives vs. Majeed Shah. 2017 (2) SCC 274 Para 24]"
29. In Kamaljit Singh vs. Sarabjit Singh, 2014 (3) ARC 210 (Paragraphs-16, 17 and 19), Hon'ble Supreme Court held as under:-
"16. There is considerable authority for the proposition both in India as well as in U.K. that a tenant in possession of the property cannot deny the title of the landlord. But if he wishes to do so he must first surrender the possession of the property back to him. He cannot, while enjoying the benefit conferred upon him by the benefactor, question latter's title to the property. Section 116 clearly lends itself to that interpretation when it says:
"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 a title to such possession at the time when such licence was given."
17. A three-Judge of this Court in Sri Ram Pasricha v. Jagannath and Ors. (1976) 4 SCC 184 reiterated the principle that a tenant in a suit for possession was estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The title of the landlord, declared this Court, even otherwise irrelevant in a suit for eviction of the tenant. The only exception to the rule of estoppel as stated in Section 116 (supra) may be where the tenant is validly attorned to the paramount title holder of the property or where that the plaintiff-landlord had, during the intervening period, lost his title to the property. We are not, however, dealing with a case where the respondent-tenant claims that the property is vested in anyone else who could be described as the paramount title holder or there was any extinction of the title of the appellant on any count whatsoever since the induction of the respondent as a tenant into the premises. We need not, therefore, be detained by any one of those considerations. What is important is that so long as a jural relationship exists between the respondent-tenant and the appellant and so long as he has not surrendered the possession of the premises in his occupation, he cannot question the title of the appellant to the property. The inevitable inference flowing from the above proposition would be that (viz-a-viz the respondent) the appellant was and continues to be the owner of the premises in question since the year 1992 when the respondent was inducted as a tenant. Reckoned from the year 1992 the appellant has established his ownership of the premises for a period of five years before the filing of the eviction petition thereby entitling him to invoke the provisions of Section 13-B of the East Punjab Urban Land Restriction Act, 1949.
19. The upshot of the above discussion is that the Courts below fell in manifest error in holding that the appellant-landlord was obliged to prove his title to the property, no matter the tenant clearly admits the existence of jural relationship of landlord and tenant between him and the appellant. We have, in the circumstances no hesitation in reversing the view taken by the Courts below and in decreeing the eviction petition."
30. Thus, under the facts and circumstances of the case, it was not permissible for the defendant-tenant/ respondent to deny the title of the plaintiff-petitioner.
CONCLUSION:-
31. The discussion made and conclusions reached above are briefly summarized, as under:-
Pleadings and Decision:-
(i) A party cannot make out a case on the basis of an evidence for which he/ she has laid no foundation in the pleadings. It is fairly well settled that no amount of evidence can prove a case for a party who has not set up the same in his/ her pleadings.
(ii) Neither in the written statement nor in the memorandum of appeal, the defendant-tenant/ respondent has not taken any objection or ground disputing or denying the applicability of U.P. Act XIII of 1972. Therefore, in the absence of any pleadings, it was not permissible for the appellate court to pass the impugned judgment holding that the provisions of U.P. Act XIII of 1972, are not applicable.
(iii) Save in exceptional cases, parties should be held to abide strictly to their pleadings and if owing to discovery of new matter or grounds, there is need to add to or to modify the allegations either in the petition or in the counter- affidavit, the Court should insist on formal amendments being effected, for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet it with appropriate defences.
(iv) The exceptional cases for the principles and test for upholding a decision on a plea not covered by pleadings and issues struck in the trial court, has been generally summarised, as under:
"(i) The parties must have fully known before going to the trial that the new plea taken would be thrashed out and decided in the suit to have a bearing on the ultimate result of the suit. None of the parties should be taken by surprise on account of a new plea foreign to the pleading of the party raising it.
(ii) The opponent of the party setting up the new plea must have accepted the challenge of the said plea without objection as to its absence in the pleading or issue by adducing rebutting evidence or otherwise dealing with the same.
(iii) The party challenging the plea must have reasonable opportunity to meet it effectively and to adduce evidence against the said plea.
(iv) The Court must see that by allowing one party to raise a new plea or case not pleaded in his pleading, or for which no issue was framed, no prejudice or injustice is done to the other party.
(v) The new plea set up should not be otherwise legally barred. If the conditions mentioned above are fulfilled, then the Court can legitimately act upon the new plea not finding any place in the pleading and on which no issue has been framed when the said pleas are proved. The absence of issue in a case like this will be of no avail and the objection, if any, becomes technical having no value."
(v) When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.
Jurisdiction in a case of eviction of tenant:-
(vi) Jurisdiction of a court has to be determined on the basis of plaint allegation alone and on the defence taken in written statement. The jurisdiction of the Prescribed Authority under the U.P. Act XIII of 1972 is essentially one for eviction of a tenant or release of the tenanted accommodation of a building as defined in Section 3(i) and not as to whether the land over which building is constructed is a leased land or a free-hold land.
Scope of release application and landlord:-
(vii) The plaintiff-landlord in such a suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. Firstly, plaintiff-landlord has to prove that there exists a relationship of landlord and tenant between the plaintiff and the defendant and secondly, the grounds on which the plaintiff-landlord has sought defendant-tenant's eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds. The the question of title to the suit premises is not germane for the decision of a eviction suit. The relationship of landlord and tenant between the plaintiff-petitioner and the defendant-respondent was undisputed. Under the circumstances, the appellate court committed a grave error of law to hold that since the disputed building is standing over a leased land of Cantonment Board of which the Cantonment Board is the owner and, therefore, the provisions of U.P. Act XIII of 1972, shall not be applicable since the plaintiff-petitioner is not the owner of the land.
(viii) The eviction of tenant under Section 21(1) of the U.P. Act XIII of 1972 is only with respect to a building as defined in Section 3(i) of the U.P. Act No.XIII of 1972, which is an inclusive definition and means a residential or non-residential roofed structure. Neither Section 21(1) nor the definition of the word "building" in Section 3(i) of the U.P. Act XIII of 1972 requires that the land of the building should be free-hold or it should not be a leased land.
Principle of estoppel under Section 116 of the Evidence Act and challenge to the derivative title:-
(ix) As a general rule, 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. Hence, the defendant-respondent who was tenant of the plaintiff-petitioner/ landlord cannot deny the landlord's title and he has to surrender possession to the plaintiff-petitioner before he can challenge the title of the plaintiff-petitioner.
(x) Though by virtue of Section 116 of the Evidence Act, the tenant is estopped from challenging the title of his landlord, yet the tenant is entitled to challenge the derivative title of an assignee of the original landlord of the demised property in an action brought by the assignee against the tenant for his eviction under the Rent laws. However, this right of a tenant is subject to one caveat that the tenant has not attorned to the assignee. If the tenant pays rent to the assignee or otherwise accepts the assignee's title over the demised property, then it results in creation of the attornment which, in turn, deprives the tenant to challenge the derivative title of the landlord.
32. For all the reasons afore-stated, the petition is allowed. Impugned judgment dated 31.01.2018 in Rent Appeal No.81 of 2015 {Suresh Chandra Khanna (deceased) and another vs. Smt. Lakshmi Devi (deceased) and others}, passed by Additional District Judge, Court No.24, Kanpur Nagar, is hereby set aside. The judgment dated 18.09.2015 in Rent Case No.40 of 2003 (Smt. Lakshmi Devi Vs. Suresh Chandra Khanna), passed by the Prescribed Authority/ Civil Judge (S.D.), Kanpur Nagar, is upheld.
Order Date :- 18.10.2019 NLY