Patna High Court
Rameshwar Lal Sharma vs Sardar Amrik Singh on 21 September, 1973
Equivalent citations: AIR1974PAT195, AIR 1974 PATNA 195
JUDGMENT Madan Mohan Prasad, J.
1. This second appeal by the defendant arises out of a suit for his eviction from a house situate at Ramgarh in the district of Hazaribagh.
2. The case of the plaintiff was that the house belonged to one Sukhdeo Singh and the plaintiff had purchased it from him. The house was let out to the appellant as a tenant by Sukhdeo Singh near about the year 1959 on a monthly rental of Rs. 18/-. There was, however, subsequently in the year 1962 an agreement entered into between Sukhdeo Singh and this appellant that the latter would vacate the house by the 15th of November 1962, failing which he would be liable to pay rent at the rate of Rs. 40/- per month. The appellant did not vacate the house by the aforesaid date and continued to be in possession. Thereafter took place the sale of the house by Sukhdeo Sinsh to the plaintiff-respondent on the 4th July 1963. The appellant paid rent for the month of July and August 1963, to the respondent and stopped the payment thereafter. Therefore, a notice under Section 106 of the Transfer of Property Act was given by the respondent to the appellant for vacating the house. The present suit was filed thereafter for his eviction as well as for arrears of rent.
3. The defence of the defendant-appellant was that he was neither a tenant of Sukhdeo Singh nor of the present respondent. He claimed to have taken settlement of it from the Manager of the Court of Wards incharse of the Ramgarh Estate. He further alleged that there was a suit between him and the Rani of Ramaarh which ended in a corn-promise between the two: in other words, the appellant claimed title in himself.
4. Both the Courts below held that the appellant was a tenant and decreed the suit. The appellant then filed a second appeal in this Court. At the hearing of that appeal it was contended on behalf of the appellant that two documents (Exhibits 14 and 14 (a)) which were not registered ones were not admissible in evidence and the findings of the Courts below on the question of relationship of landlord and tenant having been mainly based on these two documents, were vitiated in law. It was further contended that the Courts below had rightly not decided the question of title and the casual observation made by them that the plaintiff had title to the house was not of any avail to him. The learned Judge who heard that second appeal agreed with the contention that Exhibit 14 (a), a document of lease, was not admissible in evidence. Ext. 14 was, however, found to be admissible. Accordingly this Court directed the Court below to leave out of consideration Exhibit 14 (a) and to consider the evidence afresh in order to find out whether the relationship of landlord and tenant existed. The matter having gone back on remand the lower appellate Court has considered the evidence on the point and found that the relationship of landlord and tenant existed between the parties, and, accordingly, decreed the suit, both in respect of eviction as well as in respect of arrears of rent. Hence, this appeal.
5. Learned Counsel appearing on behalf of the appellant has raised two points before me; firstly that the lower appellate Court has refused to decide the question of title which it was bound to do, the question of title having been raised by the appellant and secondly that the Court below has again relied upon Exhibit 14 (a) for the purpose of proving the tenancy. I must say at the outset that there is no substance in either of these two contentions.
6. On the first point learned Counsel has urged that in every case as soon as a defendant sets UP a plea of title either in himself or in some third Party, irrespective of the fact that the suit is framed as between a landlord and a tenant and such relation is proved the question of title has got to be decided. In support of his arguments he has placed reliance on the decisions in the cases of Mahabir Ram v. Shiva Shankar Prasad, 1968 BLJR 447 = (AIR 1968 Pat 415) (FB); Jiwan Ram v. Mahabir, (1968) ILR 47 Pat 730 and Balmakund v. Dalu, (1903) ILR 25 All 498 (FB). None of the cases aforesaid support the extreme proposition of law urged by learned Counsel. In the case of Mahabir Ram, 1968 BLJR 447 = (AIR 1968 Pat 415) (FB) (supra), the question was whether the defence regarding the eviction of a tenant under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as 'the Act') having been struck down, the defendant had a right to out questions to the plaintiff's witnesses on the question of title. Tarkeshwar Nath. J., who delivered the judgment of the Full Bench held that the moment a defendant in such a suit takes the defence that he is not a tenant of the plaintiff landlord and no relationship of landlord and tenant was ever created, the position is that such a defence is taken by him not in the capacity of a tenant, and, therefore, even on the striking out of his defence against ejectment he cannot be debarred from cross-examining the plaintiff's witnesses on the question of title. The question which fell for decision by their Lordships was not as to whether where the relationship of landlord and tenant is proved, it is still open to the defendant to set up his own or somebody else's title. This case is, therefore, of no avail to the appellant. In the case of Jiwan Ram, (1968) ILR 47 Pat 730 (supra), the suit was for eviction on the ground of non-payment of rent by the defendants. The defendants denied that thev were tenants. The trial Court and the first appellate Court both found that the relationship of landlord and tenant between the parties had not been proved. They however, found that the plaintiff had title to the house. In such a situation the learned Judges who heard the case, held that where a question of title has been raised, the plaintiff could be called upon to pay proper court-fee as in a title suit. These decisions do not lay down the proposition of law that even though the relationship of landlord and tenant is proved, it is still open to the tenant defendant to raise the question of title and insist on the suit being converted into a title suit as distinguished from a suit by a landlord against his tenant. In the case of Balmakund, (1903) ILR 25 All 498 (FBI (supra), the plaintiff had filed the suit alleging the relationship of landlord and tenant. The defendant denied his title and set UP in himself. The only issue framed was with regard to the relationship of landlord and tenant. Notwithstanding this, evidence as to title was also adduced on both sides. The Munsif came to the conclusion that the plaintiff had failed to prove the relationship of landlord and tenant, but being the owner of the property was entitled to eject the defendant. The lower appellate Court held that the plaintiff could succeed only if he proved his tenancy, and not on any other ground which was not an issue between the parties. The learned Judges held that the lower appellate Court had taken an erroneou9 view and referred the matter back to it for considering the question of title. It is significant that in this case as well as in the case of Jiwan Ham Nai, the ,plea of title was allowed to be investigated where the finding on the question of the relationship of landlord and tenant went against the plaintiff. The reason is obvious. The plaintiff may have the right to eject a person treating him as a tenant in his capacity as a landlord and he may as well institute a suit for ejectment against a defendant, either as a trespasser or in some capacity other than that of a tenant. Even though, therefore, he may fail to succeed in proving his case and landlord v. tenant, he may still prove his case as the title holder against a defendant in any capacity other than that of a tenant. These cases do not lay down the proposition of law that even though the plaintiff's case has succeeded on the ground of the relationship of landlord and tenant having been proved, it is still open to the defendant to say that the plaintiff cannot succeed because he does not have in him the title to the property. Mr. K. K. Sinha has not been able to cite any decision directly supporting his contention of law.
7. The proposition of law enunciated by Mr. Sinha, if it were correct, would have the effect of laving down that in every case between a landlord and a tenant, as soon as the defendant raises the question of title by claiming it in himself or in somebody other than the landlord, the matter will have to be investigated as if it were a full-fledged suit for declaration of title and Possession. If that were so, it would belie the well-established principles of law that a tenant as such cannot challenge the title of his own landlord and he has a duty, rather, to support the title of his landlord. There are several other considerations which weigh against the arguments of learned Counsel, and I will deal with them hereafter.
8. The present suit is one under Section 11 (1) (d) of the Act aforesaid. The word 'landlord' has been defined in Section 2 (d) as follows :--
" "landlord" includes the person who for the time being is receiving, or is entitled to receive, the rent of a building whether on his own account or on behalf of another or on account or on behalf or for the benefit of himself and others or as an agent, trustee, executor, administrator, receiver, or guardian or who Would so receive the rent or be entitled to receive the rent, if the building were let to a tenant."
"Tenant" has been defined in Section 2 (f) as meaning "any person by whom, or on whose account, rent is payable for a building and includes-
(i) a person continuing in Possession after the termination of the tenancy in his favour: and
(ii) a person who occupies building as an employee of the landlord of such building either on payment of rent or otherwise."
It will appear from the above that both the definitions of 'landlord' and 'tenant' are artificial for the purpose of the present Act and different from the definitions of 'landlord' and 'tenant' elsewhere. The definition of 'tenant' in Section 3 (3) of the Bihar Tenancy Act is, "a person who holds land under another person, and is. or but for a special contract would be liable to pay rent for that land to that person". The definition of 'landlord' in Section 3 (4) of that Act is. "a person immediately under whom a tenant holds and includes the Government". It will thus appear that the question arising under the Act has to be considered keeping in view the definitions given in the Act, and the general principles of law laid down without reference to the present Act and irrespective of the limitation provided by this Act cannot be held to be applicable to the circumstances of a case under the present Act. Now reading the definition of 'tenant', even a person who is an employee of a landlord and is occupying a building, whether on payment of rent or without it, is a tenant. This is a fiction created by the Statute. Could it be said, that in a suit by a landlord against such a person, the plaintiff has got to prove, over and above the existence of such relationship of landlord and tenant, also his title to the property in the same manner? The question may very well be asked, whether an executor, appointed by a will, filing a suit for eviction of a tenant, will have to prove a title in himself apart from existence of relationship of landlord and tenant. The question admit of no other answer except the negative. It is well known that when a will 19 probated the question of title to the property, the subject-matter of the will, is not decided in such a proceeding. The executor appointed under a will cannot therefore, be asked in such a suit to prove either his own title or that of the testator provided he has proved the existence of relationship of landlord and tenant. An agent does not have any title to any property in himself. It is only his principal who has such a title. If a suit is by an agent he cannot be asked to prove his own title. Similar is this case of an administrator to whom letters of administration has been granted his position being similar to that of an executant, in such matter. A receiver appointed by a Court is an officer of the Court and does not have any title to the property of which he is appointed a receiver, nor does the Court who holds the property in custodia legis, have any title to such a property. The Court deals with the property for the benefit of such real owner. It is difficult to conceive that in suits by such persons who come within the definition of the term 'landlord' within the meaning of Section 2 (d) of the Act, the plain tiffs shall be bound to prove their own title to the property. It has, therefore, to be held that in a suit of the present Act, it cannot be laid down, as asked by Mr. Sinha, that irrespective of the finding on the question of relationship as of landlord and tenant, the question of title has to be gone into and decided. The argument is without any substance and must be rejected.
9. Another consideration which weighs against the appellant is that when he had come UP in second appeal on the earlier occasion, his own argument before this Court was that the Courts below had rightly not decided the question of title and that their observations with regard to the existence of title in the plaintiff were merely casual. The argument was accepted by this Court and no direction was given to the Court below to investigate into the question of title and decide it finally. It would be rediculous if the appellant is allowed to turn round and now say in the present appeal that the Court below should have decided finally on its merit the question of title. The appellant is estopped from doing so.
10. There is another rule of estoppel which stares the appellant in his face. Mr. J. C. Sinha, appearing for the respondent has pointed out that in view of Section 116 of the Evidence Act, it is not open to the appellant to deny the title of the plaintiff. The said Section 116 is as follows :--
"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 a licence was given."
It is obvious from a reading of the Section that during the continuance of the tenancy, a tenant cannot be permitted to deny that his landlord had at the beginning of the tenancy, a title to such preperty. This section has been the subject-matter of discussion in several cases. In the case of Krishna Prosad Lal Singha v. Baraboni Coal Concern Ltd., 18 Pat LT 739 = (AIR 1937 PC 251) their Lordships of the Judicial Committee considered the effect of the Section and observed that the Section does not deal or profess to deal with all kinds of estoppel which may arise between landlord and tenant, it deals with one cardinal and simple estoppel and. states it first as applicable between landlord and tenant and then as between lessor and lessee. Their Lordships held that in case of an ordinary lease, the Section applies against the lessee, any assignee of the term and any sub-lessee or licensee. They observed, however, that the principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to reversion, though in such cases there may be other grounds of estoppel, for example, by attornment, acceptance of rent etc. It will thus appear that the principle contained in Section 116 of the Evidence Act applies to the title of the landlord who 'let the tenant in' as distinct from any other person claiming to be reversioner. There is however no doubt that although a tenant may have been put in possession by one lessor and there is a transfer of that interest to another person, if the tenant in possession attorns to the new transferee as a person entitled to receive rent from him, the principle of estoppel will apply and the tenant will not have the right to question the title of such a plaintiff-lessor to whom he has attorned (See Ketu Das v. Surendra Nath Sinha, (1903) 7 Cal WN 596).
11. It is not disputed in the present case that the defendant-appellant had paid rent for the months of July and August 1963 to the plaintiff who had acquired interest in the property from Sukhdeo Singh, the landlord, who had let the appellant in. The payment of rent by the appellant to the present plaintiff clearly shows that it is a case of attornment. The appellant having thus accepted the relationship of landlord and tenant it is not open to him on the ground of estoppel to deny the title of the present plaintiff. The argument of learned Counsel cannot, therefore, be accepted even on this ground.
12. The only other grievance is that the Court below has again relied on Exhibit 14 (a). After the remand it was contended before the lower appellate Court that although the document of lease could not be taken into consideration for the proof of the creation of the tenancy, it could certainly be looked into for a limited and collateral purpose, namely, to explain the nature of possession. The argument of the learned Counsel is that because of its being an unregistered one it cannot be looked into at all for any purpose whatsoever. He has gone to the extent of arguing that it is only the factum of execution of such a document which can be taken into consideration and not the contents of the document, whether for collateral purpose or otherwise. It is impossible to accept such an argument. The proviso to Section 49 of the Indian Registration Act it-self lays down that an unregistered document may be received as evidence of any collateral transaction not required to be effected by registered instrument. The Court of appeal below has been careful in saying that the document cannot be looked into except for the purpose of ascertaining the nature and character of possession as held in the case of Mt. Ugni v. ChowaMahto, 1968 BLJR 93 = (AIR 1968 Pat 302) (FB). In the order of remand, the Court below had been asked to exclude this document from consideration obviously for the purpose of proof of the tenancy. The lower appellate Court does not seem to have violated this mandate. In fact, it had been pointed out in the order of remand itself that the oral evidence of the witnesses did not itself prove the existence of relationship of landlord and tenant, but this Court could not come to a finding because the lower appellate Court had not referred to that evidence and it was for that the Court, as a final Court of fact, to consider the oral evidence and decide whether that was reliable to prove the aforesaid relationship. The appellate Court has now considered the oral evidence also and upon the entire evidence held that the evidence of the plaintiff proves the existence of relationship of landlord and tenant between the parties. There is thus no substance even in this contention.
12-A. In the result, there is no merit in this appeal. It is, accordingly, dismissed with costs.