Calcutta High Court (Appellete Side)
Sachindra Nath Mitra vs Ram Bharat Pandey & Ors on 1 February, 2018
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In The High Court At Calcutta
Civil Appellate Jurisdiction
01.02.18
SA 691 of 1977
Sachindra Nath Mitra
-Vs-
Ram Bharat Pandey & Ors.
Mr. Sudish Das Gupta
Mr. Kamalesh Bhattacharyya
Mr. Gopal Chandra Ghosh
Mr. Aninda Bhattacharyya
... for the appellant.
Mr. Bhaskar Ghosh
Mr. Gopal Chandra Ghosh
Ms. Debarati Sen(Bose)
... for the respondents.
This appeal is directed against the judgement and decree passed in Title Appeal No. 88 of 1975 by the Third Court of the Additional District Judge, Howrah, dated 26th May, 1976 and 1st June, 1976 respectively, inter alia, on the grounds that the Learned Lower Appellate Court has given a special reliance on the testimony of the witnesses of the defendants by discarding the evidence of the plaintiff-witnesses and based his observation on hypothesis, conjecture and surmise by holding that the plaintiff has acquired right, title and interest in respect of the suit property by a Registered Deed of Sale dated September 8, 1956.
The Learned Lower Appellate Court below ought to have held that the defendants are ghar bharatias in respect of the disputed rooms. 2
The Learned Lower Appellate Court below should have held that there had been valid attornment of the defendants in favour of the plaintiff in respect of the tenancy of the defendants and that is why they enhanced rents from Rs.16 to Rs.30/-.
It is submitted that the defendants/respondents have admitted that the plaintiff/appellant is the landlord and as such they should be stopped from pleading or raising any dispute in regard to the right, title and interest of the plaintiff/landlord in the suit property. It is also submitted that the Learned Lower Appellate Court below has committed an error in considering that Deed of Kobala(Exhibit-5) has been executed by the minors and that being so held that the Deed of Kobala to be void which does not create any title in favour of the plaintiff/appellant herein in respect of the properties in dispute whereas the Learned Lower Appellate Court should have held that the vendors viz. Sheikh Israil and Meher Afjan Bibi were major and they themselves have stated that they are 22 and 20 years of age respectively, and thus, the Learned Lower Appellate Court below having concurred with the findings of the learned Lower Appellate Court has committed total wrong and the decisions referred to on behalf of the appellant were misconstrued by the learned Judge. Accordingly, the plaintiff/appellant has prayed for setting aside the judgement and decree passed by the learned Lower Appellate Court.
It is pertinent to note that the second appeal was admitted but no substantial question of law was framed by this Hon'ble Court. So, this Court is 3 called upon to frame the substantial question of law to proceed to consider the appeal.
Upon hearing the learned advocate for the parties and in consideration of the grounds enumerated in the memorandum of appeal are to be taken as substantial question of law to be decided. However, in my considered view, appeal may be heard on the following substantial questions of law:-
"i) whether the Learned Lower Appellate Court below erred in law in not appreciating the evidence on record as the last Court of fact that the defendants are ghar bharatias, inasmuch as the defendants appear to have claimed to be thika tenants having a derivative title from the erstwhile owner Babu Mian, whereas according to the plaintiff the defendants are ghar bharatias under the plaintiff.
ii) whether the Learned Lower Appellate Court has made out a third case beyond the pleading on the score of his finding that the Deed of Sale (Exhibit-
5) is a void Deed based on the evidence of the defendant-witnesses alone on coming to a finding that the vendors viz. Sheikh Israil and Meher Afjan Bibi the legal hiers of Babu Mian(since deceased) were minor at the time of execution of the Deed."
Brief facts leading to this appeal is that the appellant as plaintiff instituted the suit for declaration and injunction contending that the plaintiff as the owner of the thika tenancy right in the land measuring 8 cottahs 20 sq.ft. with the structures standing thereon appertaining to holding nos. 89,90, 90/1 and 92, G.T. Road (North) by virtue of a registered Deed of Sale dated 8.9.1956 executed by the then owners Sk. Israil, Sm. Meher Afjan Bibi and Sk. Sahajada and since his purchase he is in possession of the same by realizing rent from the tenants including the defendants. It is a specific case of the plaintiff that Mokaraari 4 Mourashi interest of the aforesaid land in dispute was purchased by the plaintiff's wife viz. Sm. Ava Rani Mitra wherein defendants are monthly ghar bharatias in respect of the two rooms that is room no. 1 and 2 as shown in the sketch map appended to the plaint who were ghar bharatias under the predecessor-in-interest of the plaintiff/appellant and thereafter under the plaintiff at a monthly rental of Rs.30/- payable according to the English Calendar Month commencing from the 1st day of the month and ending with the last date of the month.
Further case of the plaintiff/appellant herein is that the plaintiff was constructing one shop room on the front road side. Pucca wall of the three sides were finished and only the wall on the Eastern side was not finished when the defendants, with ulterior motive obstructed the plaintiff in completing the eastern wall of the said shop room and the defendants were trying to take possession of a brick wall room no. 4 and were trying to put lock on the gate of the plaintiff. On being protested they hold out threat, hence the suit for declaration that the defendants/respondents had no right to raise such construction over the suit holdings land and to obstruct the egress and ingress of the plaintiff being monthly premises tenant bharatia in respect of the two suit rooms and further prayed for permanent injunction restraining them from disturbing the peaceful possession of the plaintiff/appellant and also prayed for a decree of mandatory injunction directing the defendants/respondents to remove the obstruction raised and to allow egress and ingress to and through the gate on the front side of the suit property by the plaintiffs.
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The defendants contested the suit by filing a written statement denying all material particulars made in the plaint and contended, inter alia, that Municipal Holding Nos. 89, 90, 90/1 and 92, G.T.Road(North) were the properties of one Babu Mia, which the defendants held in respect of 3 cottahs of open land on a rental of Rs. 16/- per month for which two rent receipts have been granted separately. The defendants had constructed two big rooms of pantile and tin roofing on partly pucca and partly chitta bera walls, that they also took electric connection and erected a pucca meter room just on the southern side of the tea shop and pucca office room of the defendants since the time of their inception of tenancy under Babu Mian.
It is also the case of the defendants that the 3 cottahs of open land appertained to holding no. 90, G.T. Road (North), and holding Nos. 89,90, 90/1 and 92, G.T. Road(North) are contiguous holdings without any distinct boundary and demarcation of each holding, that said Babu Mian had several structures which were let out to different tenants and the open land measuring about 3 cottahs was let out to these defendants.
It is a further case of the defendants/respondents is that the defendants in good faith and relying upon their representations and request by the plaintiff have enhanced the monthly rent for 3 cottahs of open land from Rs. 16/- to Rs.30/- per month and the plaintiff's son issued rent receipts. The sketch map attached to the plaint is not only incorrect but the same does not correctly represent a true picture of the site and that they have every right to raise construction over the suit property. However, they have denied having raised any 6 construction on the open land including the door and lock and also denied having encroached any land of the plaintiff.
On the pleadings of the parties, the learned trial Court framed as many as seven issues including issues as to whether the plaintiff has right, title and interest in the suit property and whether the defendants are ghar bharatias at the suit room.
It is the admitted fact that Sk. Babu Mian had the right, title and interest in the suit properties. It is also proved from the evidence that Babu Mian died in the year 1948.
From the evidence of the D.Ws, it is clear that the defendants have tried to establish that the deed Exhibit-5 is not a valid document being executed by the minor heirs of Sk. Babu Mian.
The learned advocate for the defendants submits that the Exhibit 5 has been executed by the heirs of Sk. Babu Mian who were at the time of execution, minors and as such the deed Exhibit 5 is void ab initio as per the provisions under Mohammedan Law.
Learned advocate for the defendants/respondents has referred provisions of Section 364 of Mohammedan Law which provides that a de facto guardian has no power to transfer any right or interest in the immovable property of the minor. Such a transfer is not merely voidable but void and has relied on a decision in the case of Meethiyan Sidhiqu v. Muhammed Kunju Pareeth Kutty & Ors., reported in AIR 1996 SC 1003. The Hon'ble Apex Court made observation in paragraph 10 which reads thus:-
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" Father is the natural guardian and in his absence other legal guardians would be entitled to act. In their absence, property guardian appointed by the competent Court would be competent to alienate property of the minor with the permission of the Court. When a sale is to be made on behalf of the minor the necessary ingredients are that the sale must be for the benefit of the estate of minor and, therefore, the competent person entitled to alienate the minor's property would be, subject to the above condition, either the natural guardian or the property guardian appointed by the Court. In this case after the demise of the father no property guardian was appointed. The mother, therefore, is not guardian for the alienation of the property of the minor. The sale made by the mother, therefore, is void."
There is no dispute as the principle laid down in the cited decision wherein after the demise of the father no property guardian was appointed. The mother, therefore, was not guardian for the alienation of the property of the minor.
The cited decision has been relied by the trial Court in applying provisions of Section 364 of the Mohammedan Law. The trial Court was of the view that the defacto guardian has no power to transfer any right or interest in the immovable property of the minor and such transfer is not merely voidable but void.
The learned trial Court having considered the evidence of DW-3 found that DW-3 who happens to be the brother of Babu Mian has stated that Sk. Saha Zada used to look after the son and daughter of Babu Mian, after the death of Fazle Rahaman who was also the brother of Babu Mian. It is in the evidence that after Babu Mian's death, Fazle Rahaman used to look after the minor son and minor daughter of Babu Mian and after his death, Sk. Saha Zada used to look 8 after them. Accordingly, the learned trial Court was of the view that Sk. Saha Zada is nothing but a defacto guardian of the minor son and daughter of Babu Mian and such defacto guardian being a custodian of the person and property of the minor as per Section 364 of the Mohammedan Law was not empowered to transfer any right and interest of the immovable property. Accordingly, the learned trial Court held that the deed being void, plaintiff has no right, title and interest in the suit properties and thus, dismissed the suit.
As regards the principle of estoppel applicable to this case, the learned trial Court also opined that there was no principle of estoppel applicable as against the defendant, who could not be stopped from disproving the plaintiff's title, as the defendants were not inducted as tenants by the plaintiff. Submission was put before the trial Court about title having been acquired by adverse possession which is in the making of a third case beyond the pleading to my mind. The learned trial Court rightly observed that he cannot go beyond the pleading to consider the argument on behalf of the defendant against acquiring the title by adverse possession. My attention is invited by Mr. Gopal Chandra Ghosh, learned counsel for the appellant, to the judgment passed by the learned appellate Court below in respect of a finding that the learned trial Court has not considered the dispute as to whether the defendants were only ghar bharatia or math bhratia but found on admission the facts on both sides that Babu Mian died in the year 1948 leaving behind his son Sk. Israel and a daughter Meher Afjan Bibi. One Sk. Saha Zada appears to have executed a Kobala (Exhibit-5) and was of the further view that he is one of the executants of Exhibit- 5 for the 9 reason that he used to look after the properties of the children of Babu Mian after his death and he looked after those children. The learned appellate Court below was of the view that Sk. Saha Zada was at best a defacto guardian of the said children of Babu Mian from whom the plaintiff claimed to have purchased his thika tenancy right in the suit holdings by means of Kobala (Exhibit- 5).
The learned appellate Court below appears to have misconstrued the deposition of P.W.- 3, which was elicited doing his cross-examination thus:
"I am the thika tenant of my wife.
When the thika sortha was purchased son and daughter of Babu Mia were minors. Sk. Sahajada was the guardian of the two minors. Sk. Sahajada signed on behalf of the minors."
P.W.- 3 further stated in cross-examination thus :
"When Babu Mia died, he had one daughter Meherjan Bibi and her husband and he had another minor son/daughter as his heirs."
Relying on this peace of evidence the learned appellate Court below came to observe that Sk. Israil and Meher Afjan Bibi were minors and therefore, the Kobala (Exhibit- 5) is a void document. This was the finding of the learned trial Court which was concurred by the learned appellate Court below.
If this Court has to go through the averments in paragraphs 5, 6, 7, 8, 9 and 10 of the written statement filed on behalf of the defendants respondents, there is nowhere averred that the deed by virtue of which the plaintiff has acquired right, title and interest in the suit property was a void deed because of the fact that deeds were executed by minors. So, discussion made by the learned 10 Courts below are undoubtedly a third case made out who have harped on the findings that the deed registered dated 8.9.1956( Exhibit-5) was executed by minors and Sk. Sahajada the guardian defacto representing the minors for transferring the suit property in favour of the plaintiff.
It would appear that the learned appellate Court below based his finding on the deed of Biana-nama dated 27.11.1053 that it was said Sahajada, uncle as a guardian of Sk. Israil who had executed the Biana-nama in favour of the plaintiff appellant. The learned Judge wrongly construed the said biananama which does not create right in the holder of the agreement for sale. Learned Judge was further of the view that Sk. Israil was less than 18 years of age, but there is no concrete finding as to what was the age at the time of execution of agreement for sale. I am of the view that it was in the wishful thinking of the learned appellate Court below that if in 1953 Sk. Israil was less than 18 years of age, then in 1956 he cannot be 22 years old. So, his mentioning of age in the affidavit is obviously incorrect. These findings appear to be assumption of the learned appellate Court below without considering the recital of the registered deed of sale of the year 1956(Exhibit-5) which clearly recites the fact as to why the said Biana-nama executed by Sahajada uncle and sister of Sk. Israil could not be reduced to a registered deed of sale. It was because his sister was married and was in Dhaka and for that reason sale deed could not be executed and registered but as on the date of execution and registration of the deed of the year 1956 (Exhibit-5), the said Sk. Israil attained his majority and executed the deed 11 of sale duly registered before the Registrar in favour of the plaintiff transferring the suit property duly inherited by Sk Israil and his sister Meher Afjan Bibi.
In this regard, the learned advocate for the plaintiff/appellant has pointed out that no amount of oral testimony can be laid on the documents for derivation of the recital as noted in the deed itself and invited my attention to the provisions of Sections 91 and 92 of the Evidence Act. It would be profitable to reproduce the provisions of those Sections which reads thus :
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document. - When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1. - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2. - Wills [admitted to probate in [India]] may be proved by the probate.
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Explanation 1. - This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.
Explanation 2. - Where there are more originals than one, one original only need be proved.
Explanation 3. -- The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
92. Exclusion of evidence of oral agreement. - When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms :
Proviso (1). -- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.
Proviso (2). -- The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent, with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. 13
Proviso (3). -- The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4). -- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5). -- Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6). -- Any fact may be proved which shows in what manner the language of a document is related to existing facts."
In order to fortify his argument he has referred a decision in the case of Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun vs. Bipin Kumar and another, reported in (2004) 2 SCC 283 and observation made in paragraph 7 to this extent that it has been held that provision of Section 92 of the Evidence Act precludes a party from leading evidence contrary to the terms of a written document.
Mr. Ghosh further relied on a decision in a case of Ramaswamy (Dead) by LRS. vs. M. Lobo (Dead) by LRS., reported in (2001) 10 SCC 176 and 14 contended that in this case too, it is not in dispute that the sale deed is a registered document and, therefore, no oral evidence could be adduced to show that no title passed on to the respondent under the sale deed.
Obviously reading of the facts of the case cited is distinguishable from the facts at hand. However, the principle as laid down bearing in mind the provision of Section 92 of the Evidence Act does apply in the present case.
A question has been raised by the learned advocate for the respondents that why Sahajada uncle of the said vendor has also put the signature in the deed of sale. It is well understood from the deed itself that it was Sahajada who had put his signature in the Biana-nama on the basis of which the deed of sale (Exhibit- 5) was executed by the heirs of the said Babu Mian (since deceased). Heirs are Sk. Israil and Meher Afjan Bibi. There is no doubt about it who have executed the said deed and presented it for registration when Sk. Israil had already attained his majority. The recital goes to show that Meher Afjan Bibi was in Dhaka. It is pointed out that she was married daughter of Babu Mian. Obviously, she is supposed to be the major at the time of execution of the deed.
Sk. Israil, the son of Babu Mian attained his majority as on the date of execution and registration of the deed on 8.5.1956 before the Registrar. The registering authority of the deed must have visualized the presence of the executant being the vendors of the plaintiff. So, there cannot be any doubt that as on the date of execution, heirs of Babu Mian were minor and there is no scope of misgiving arising out of signature of their uncle Sahajada on the sale deed so as to find that it was Sahajada who signed as a guardian of Sk. Israil. 15 In the second fold of argument Mr. Bhaskar Ghosh, learned advocate for the respondent no. 1, has raised against the applicability of estoppel under Section 116 of the Evidence Act, which provides "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."
It is pointed out that a mere denial of title is not enough. Such denial has to be bona fide. I have found on perusal of the judgment impugned with that of the pleadings made by the parties to the suit that nowhere the defendants/respondents have denied the title of the plaintiffs and/or even claimed declaration of the registered deed of sale in favour of the plaintiffs as void by reason of deed having been executed by minors.
Mr. Ghosh has further relied on a decision in the case of T. Lakshmipathi and Ors. Vs. P. Nithyananda Reddy and Ors., reported in (2003)5 SCC 150. In the said judgment the case of Vashu Deo Vs. Balkishan, reported in 2000(2) SCC 50 has been relied on.
It is settled principle that the rule of estoppel between landlord and tenant continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord. The estoppel would cease to operate only on the tenant openly restoring possession by surrender to the landlord. So by operation of Section 116 of the Evidence Act the defendants/tenants are estopped from challenging the ownership of the plaintiffs/appellants.
16Yet another decision in the case of Sheela & others Vs. Firm Prahlad Rai Prem Prakash, reported in (2002)3 SCC 375 has been relied on and my attention is adverted to the observation made in paragraph 16 which read thus "16. After the creation of the tenancy if the title of landlord is transferred or devolves upon a third person the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights acknowledges the title of transferee either expressly or by paying rent to him, the rule of estoppel once again comes into operation for it is unjust to allow the tenant to approbate and reprobate and so long as the tenant enjoys everything which his lease purports to grant, how does it concern him what the title of the lessor is? (See Tej Bhan Madan Vs. II ADJ, (1988)3 SCC 137). A denial of title which falls foul of the rule of estoppel contained in Section 116 of the Evidence Act is considered in law a malicious act on the part of the tenant as it is detrimental to the interest of the landlord and does no good to the lessee himself. However, it has to be borne in mind that since the consequences of applying the rule of determination by forfeiture of tenancy as a result of denial of landlord's title or disclaimer of tenancy by tenant are very serious, the denial or disclaimer must be in clear and unequivocal terms. (See Majati Subbarao Vs. P.V.K. Krishna Rao, (1989)4 SCC 732, Kundan Mal Vs. Gurudutta (1989)1 SCC 552 and Raja Mohammad Amir Ahmad Khan AIR 1965 SC 1923). We may quote with advantage the law as stated by a Division Bench of the Calcutta High Court in Hatimullah V. Mohd. Abju Choudhury, AIR 1928 Cal 312: 32 CWN 391."
In rebuttal Mr. Bhaskar Ghosh has pointed out that the defendants are claiming to be thika tenants in respect of 3 cottahs of land having obtained from the original owner Babu Mia and they have denied to be ghar bharatia in respect of the suit premises. My attention has been invited to evidence of Sachin Mitra, P.W 3, who has stated that suit property was purchased in his wife's name, Ava Mitra, in 1952 by a registered sale deed and Sachin Mitra, 17 P.W 3 purchased the thika tenancy right including all the structures from the heirs of Babu Mia by a registered deed of sale, Exhibit-5, for a consideration. If this is the quality of the evidence adduced by P.W 3 then it may be said that plaintiffs have not adduced the title deed of the year 1952 in respect of the land which the plaintiff's wife Ava Mitra had purchased from the erstwhile landlord, jamindar. But the fact remains that the deed, Exhibit-5, is a registered deed executed by the heirs of Babu Mian in favour of the plaintiffs showing the thika tenancy rights having been purchased including all structures with tenants 16 Nos. of occupation including the defendants/respondents. The counterfoils of the rent receipts issued by the plaintiff, P.W 3, Exhibit-2 series clearly reflect that the defendants have paid rent to P.W 3. It is admitted fact that he had given letters to all individual tenants informing the fact that he has become the owner of the said land. It is not in dispute that the defendants are not in the enjoyment of two rooms. According to the plaintiffs, they reside in a new room built i.e. room nos. 4 & 5 built by the plaintiffs.
As regards the principle of estoppel in rebuttal Mr. Ghosh has relied on a decision in the case of Santilal Dulichand Shah Vs. Ramesh Chandra Guzrati, reported in 1980(2) CLJ 518 where it has been held "16. Upon a consideration of the authorities it follows, therefore, that where the person receiving the payment was not the person who let the payer into possession, but some one who is claiming title by succession, the mere act of payment as and for rent, without more, is not conclusive and does not estop the payer from afterwards repudiating the payee's title if he can explain away the payment by showing that he made it in mistake, ignorance or incomplete knowledge of the circumstances of payee's title or of other material facts." 18 Thus, it is argued by Mr. Ghosh that the mere fact of payment of rent by the defendant to the plaintiff cannot by itself is sufficient to entitle the plaintiff to a decree of eviction.
Taking cue from the observation made in paragraph 17 of the cited decision it is argued that since the defendants were not inducted by the plaintiff at the suit premises, it is open for the defendants/plaintiffs to challenge the title of the plaintiff.
In my considered opinion the decision is quite distinguishable from the facts of the instant case. The plaintiff has admitted the tenancy of all tenants including that of the defendants and the defendants have been paying the rents to the plaintiff. So it cannot be said that the defendants were not apprised of the ownership of the plaintiff by virtue of purchase of thika tenancy right in the suit property from the heirs of said Babu Mian. Mr. Ghosh has also relied on Meethiyan Sidhiqu Vs. Muhammed Kunju Pareeth Kutty and Ors., reported in AIR 1996 SC 1003. Mr. Ghosh has also relied on Subhash Chandra Vs. Mohammad Sharif and Ors., reported in AIR 1990 SC 636 where it has been held "7. It is true that the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff. Where the landlord has not himself inducted the tenant in the disputed property and his rights are founded on a derivative title for example, as an assignee, donee, vendee, heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiff's claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by S. 116 of the Evidence Act. The section does not permit the tenant, during the continuance of the tenancy, 19 to deny that his landlord had at the beginning of the tenancy a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in. So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non-existent in the eye of law. By way of an illustration one may refer to a case where the original landlord had the right of possession and was, therefore, entitled to induct a tenant in the property but did not have any power of disposition. The tenant in such a case can attack the derivative title of the transferee-plaintiff but not on the ground that the transferor- landlord who had initially inducted him in possession did not have the right to do so. Further since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage when the tenancy commenced, he is not forbidden to plead that subsequently the landlord lost this right. These exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy." This decision is also not well nigh within the facts and circumstances of the instant case because the fact of the cited case is that the defendant' s father was a tenant in possession of the house which belonged to one Smt. Raj Rani who sold the same on 11.8.1952 to the plaintiff's predecessor-in- interest Nabin Chand Dal Chand who had filed a suit for eviction of the defendant' s father Misri Lal. Eviction suit was resisted by the defendant on 20 the ground that said original owner Smt. Raj Rani had earlier transferred this house to a trust and she could not later convey any title to the plaintiff. In the present suit, such is not the case entitling the defendant to challenge the title of the plaintiff in view of my discussion in the foregoing paragraph.
Mr. Ghosh has also relied on a decision in the case of Sambhunath Mitra & Ors. Vs. Khaitan Consultant Ltd. & Ors., reported in AIR 2005 CAL 281 where the aforesaid decision of the cited decision of the Honble Supreme Court Subhash Chandra (supra) is relied on. **** Mr. Bhaskar Ghosh, learned advocate for the defendants/respondents pointed out that the defendants have made averments in their written statement that they were tenants inducted by Sk. Babu Mian by grant of two rent receipts, I do find on evidence that the rent receipts being Exhibits A-11, A-12 and A-13 were granted by Sk. Babu Mian, owner of the suit premises. There is no dispute as such in this regard. The dispute raised is mainly on the ground that the deed of Sale, Exhibit-5 being the void deed by virtue of the same being executed by minors, the plaintiff/appellant has no right, title and interest and so they cannot claim the decree as prayed for in the plaint.
I have already discussed with regard to the legal position of the deed, Exhibit-5 in consideration of the submission and the proposition relied on by learned advocate for the plaintiff/appellant that the defendants as tenants have no legal right to dispute the title of the plaintiff/landlord and they are estopped from pleading under Section 116 of the Evidence Act.
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I have gone through the decision cited even on the part of the defendants which in my view are not well nigh within the facts and circumstances of the instant case. So the provision of Section 364 of the Mohammedan Law would not be applicable in the given facts of the case. I have discussed in the foregoing paragraphs that the plaintiff has proved his deed and the title having been acquired from his vendors, who were major at the time of execution of the deed, which fact is well depicted from the recital of the registered deed itself.
It would not be out of the context to take note of the oral testimony of the plaintiff's PW-3 wherefrom it is well understood that the vendors of the plaintiff had declared before all the tenants in the presence of the defendants at the locality that they had no right from that moment because they had sold the property to the plaintiff. A notice was also given to all the tenants informing them that the plaintiff has become the owner of the suit property. This fact finds expression from the receipts adduced in the trial Court which shows that the defendants were accepted as tenants under the plaintiff after attornment of their tenancy and the plaintiff used to receive rents from them against proper grant of rent receipts.
Mr. Bhaskar Ghosh, learned advocate for the defendants points out that no decree of injunction can be granted on an unspecified land and as such the claim of the suit is bad. It appears from the averments made in the written statement and also from the deposition of the defendants that they have claimed to have raised construction on the suit property as a matter of right. In considering the totality of the evidence on record and bearing in mind the rival pleadings between 22 the parties this Court finds that there was overt act on the part of the defendants when they claimed to have raised construction as a matter of right after challenging the title of the plaintiff. So, there is clouding of the plaintiff's title in the suit property, therefore, the plaintiff would be entitled to a decree of declaration of their right, title and interest in the suit property. Secondly, an overt act is evident from the evidence on record on the part of the defendants, who have locked the main gate by which the egress and ingress to and from the suit property by the plaintiff has been obstructed. Therefore, a decree of mandatory injunction can be granted in favour of the plaintiff directing the defendants to remove any obstruction on the passage upto the gate so as to allow a free egress and ingress to and from the premises by the plaintiff and his men and agents.
Having regard to my finding that the deed Exhibit-5 cannot be held to be void as alleged by the defendants for the reason of being executed by the minors, as I have found that the vendors of the plaintiff were major at the time of execution and registration of the deed. Therefore, the learned Courts below ought to have answered the issue as to plaintiff's has right, title and interest in the suit property in the affirmative.
The learned Lower Appellate Court has come to a finding that the issue relating to the fact whether the defendants are a ghar bharatias or tenants have been considered.
The defendants may, for their safety and protection make minimal construction of the brick wall removing the chitta bera wall under the consent of 23 the landlord. Since there is no inspection, therefore, it is not possible even for this Court to understand as to whether there was any substantial raising of the wall or not save and except the averments by the defendants themselves that they have right to raise construction. I find that the learned Appellate Court below having considered the deed (Exhibit- 5) being void beyond pleading of the parties to the suit has made out a third case, therefore, impugned judgment and decree cannot be allowed to be sustained under the law and fact.
For the reasons above, this appeal is liable to be allowed. Consequently, the judgement and decree dated 26th May, 1976 and 1st June, 1976 passed by the Third Court of the Additional District Judge, Howrah in TA No. 88 of 1975 affirming the judgement and decree passed by the learned Munsif, 4th Court, Howrah in T.S. No. 43 of 1974 is hereby set aside.
Hence, the plaintiff/appellant do get a decree of declaration that the defendants/respondents are monthly tenants in respect of the suit rooms displayed in the map annexed to the schedule of the plaint. The plaintiff/appellant do also get a decree of mandatory injunction directing them to remove obstruction for the egress and ingress of the plaintiff to and from the suit property through the main gate. The defendants/respondents are also restrained by a decree of permanent injunction from raising any construction over the suit property without lawful consent of the landlord/plaintiff/appellant herein.
Thus, the appeal being S.A. No. 691 of 1977 is allowed with costs. Certified website copy of the judgment and order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities. 24
After the judgement, the learned advocate for the defendants/respondents prays for stay of operation of the judgement. I do not find any substantial reason to stay the operation of judgement passed hereinabove and such, request is not acceded to.
sh/pj/ar ( Shivakant Prasad, J)