Patna High Court
Rajeshwar Prasad And Anr. vs Sita Ram Marwari And Ors. on 11 March, 1977
Equivalent citations: AIR1977PAT247, AIR 1977 PATNA 247
JUDGMENT B.P. Jha, J.
1. The defendants preferred this second appeal before this court. The plaintiff brought a suit under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 for eviction of the defendants from the suit premises on the ground of personal necessity as well as on the ground of non-payment of rent.
2. The case of the plaintiff was that he took permanent settlement from one Wasi Haider on 17-6-1968. Wasi Haider being the Mutawalli of Bihar Subai Sunni Majlish-e-Waqf granted a permanent settlement to the plaintiff. The Bihar Subai Sunni Majlish-e-Waqf brought Title Suit No. 1 of 1950 before Subordinate Judge, Patna. In that suit the trial court by its judgment (Ext K) held that the lease granted by the Mutwalli in favour of the plaintiff was void. In First Appeal No. 59 of 1955 a learned single Judge of the Patna High Court upheld the judgment of the trial court. In Letters Patent Appeal No. 15 of 1959 a Division Bench of the Patna High Court also upheld the judgment of the trial court (Ext K/1).
3. On the basis of these judgments the case of the defendants was that there was no relationship of landlord and tenant. The trial court accepted the plea of the defendants and held that there was no relationship of landlord and tenant.
4. The lower appellate court while setting aside the judgment of the trial court relied on Section 116 of the Indian Evidence Act (hereinafter referred to as 'the Act') and held that the defendants could not challenge the title of the plaintiff. In my opinion Section 116 of the Act does not apply to the facts of this case. It is relevant to quote Section 116 of the Act.
"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 license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given."
In my opinion Section 116 estops the tenant from denying the title of the landlord at the beginning of the tenancy. In the present case the High Court held in L. P. A. No. 15 of 1959 that the lease executed by the Mutwalli of the Waqf in favour of the plaintiff was void. Hence I hold that the defendants can challenge the validity of the title of the landlord and Section 116 of the Act does not debar such plea.
5. In the present case, the Mutwalli of the Bihar Subai Sunni Majlish-e-Waqi granted lease to the plaintiff and on that basis he inducted the defendants as tenants in the suit premises. The Bihar Subai Sunni Majlish-e-Waqf brought Title Suit No. 1 of 1950 and in that suit it was held that the lease granted to the plaintiff in respect of the suit premises was void. Certainly the defendants can raise the plea that there was no relationship of landlord and tenant on the basis of the subsequent event. The principle of estoppel as laid down under Section 116 of the Act does not apply to the facts of this case. Hence I remand the matter to the lower appellate court for fresh consideration.
6. I have been informed by learned counsel for the respondents that parties went to the Supreme Court after the judgment of the Division Bench of the Patna High Court in L. P. A. No. 15 of 1959. It is stated on behalf of the respondents that after the decision of the Supreme Court the Bihar Subai Sunni Majlish-e-Waqf sanctioned a fresh lease to the plaintiff for 99 years in respect of the suit premises. It is on the basis of this lease the plaintiff claims that he is the actual landlord in respect of the suit premises. If the plaintiff respondent files a petition before the lower appellate court for adducing additional evidence, I direct the lower appellate court to allow the plaintiff respondent to lead additional evidence. The defendants will be entitled to reply to the additional case of the plaintiff. The lower appellate court is directed to hear tooth the parties before delivering a fresh judgment.
7. The law may be briefly stated thus:--
Section 116 of the Act prohibits a tenant from challenging the validity of the title of the landlord at the beginning of the tenancy. In other words, the estoppel in Section 116 of the Act refers to the title at the beginning of the tenancy. It does not debar a tenant from challenging the validity of the title of the landlord on the basis of the previous events which occurred before the tenant was inducted in the premises. Section 116 of the Act also does not debar a tenant from proving the subsequent events in relation to the title of the landlord. The bar imposed under Section 116 of the Act is that the tenant cannot challenge the defective title of the landlord at the beginning of the tenancy. In other words, the tenant is estopped from challenging the fact that the plaintiff obtained title to the suit property on the basis of mis-representation, fraud etc. Section 116 of the Act refers to the estoppel in respect of a defective title' at the beginning of the tenancy. Section 116 does not estop the tenant from raising the plea that the landlord had no title to the suit property before he was inducted as tenant. In other words, the defendant-tenant cannot challenge the defective title of the landlord at the beginning of the tenancy. Such a plea is estopped by Section 116 of the Act
8. In the result the appeal is allowed and the judgment and decree of the lower appellate court are set aside and the case is sent back to the lower appellate court for a fresh decision. The lower appellate court is also directed to finish the hearing of the case within three months from the date of the receipt of the record.