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Thursday, September 20, 2012

In a suit for possession and recovery of mesne profit filed by the plaintiff- appellant before the trial Court of Additional District Judge, Delhi, the plaintiff prayed for a decree for possession in its favour on admissions, invoking the Court’s powers under Order XII Rule 6 of the Code of Civil Procedure, 1908. The trial Court examined the prayer and held that the jural relationship of landlord and tenant was admitted between the parties and so was the rate of rent as settled by them. Service of a notice terminating the tenancy of the defendant-respondent also being admitted, the trial Court saw no impediment in decreeing the suit for possession of the suit property. The application filed by the plaintiff- appellant under Order XII Rule 6 of the CPC was accordingly allowed and the suit filed by the plaintiff to the extent it prayed for possession of the suit property decreed in its favour.Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter’s title, even when he is sought to be evicted by the latter on a permitted ground.The section postulates that there is a tenancy still continuing, it had its beginning at a given date from a given landlord. It provides that neither a tenant nor any one claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise (which is the case before the Board, on this appeal) the section applies against the lessee, any assignee of the terms and any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant from disputing the derivative title of any who claims to have since become disentitled to the reversion……” (emphasis supplied) 17. In the light of the above, the trial Court was, in our view, perfectly justified in decreeing the suit for possession filed by the appellant by invoking its powers under Order XII Rule 6 of the Code of Civil Procedure. Inasmuch as the High Court took a different view ignoring the pleadings and the effect thereof, it committed a mistake. 18. We accordingly allow this appeal, set aside the impugned judgement and order of the High Court and affirm the judgment and decree passed by the trial Court. The Parties are directed to bear their own costs. 19. Keeping in view the fact that the premises in question is being used by the tenant for commercial purposes, we grant to the defendant time till 31st December, 2012 to vacate the same on furnishing an undertaking in usual terms before this Court within four weeks from today. Needless to say that the defendant shall be liable to pay the mesne profit for the period hereby granted at the rate determined by the trial Court. 20. The appeal is allowed accordingly.


                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.   6734  OF 2012
                (Arising out of S.L.P. (C) No.10576 of 2011)


M/s Payal Vision  Ltd.                       …Appellant

      Versus

Radhika Choudhary                                  …Respondent



                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.

2.    In a suit for possession and recovery of mesne  profit  filed  by  the
plaintiff- appellant before the trial Court of  Additional  District  Judge,
Delhi, the plaintiff prayed for a decree for possession  in  its  favour  on
admissions, invoking the Court’s powers under Order XII Rule 6 of  the  Code
of Civil Procedure, 1908.  The trial Court  examined  the  prayer  and  held
that the jural relationship of landlord and tenant was admitted between  the
parties and so was the rate of rent  as  settled  by  them.   Service  of  a
notice terminating  the  tenancy  of  the  defendant-respondent  also  being
admitted, the trial Court saw  no  impediment  in  decreeing  the  suit  for
possession of the suit property.  The application filed  by  the  plaintiff-
appellant under Order XII Rule 6 of the CPC was accordingly allowed and  the
suit filed by the plaintiff to the extent it prayed for  possession  of  the
suit property decreed in its favour.

3.    Aggrieved by the decree passed against the respondent, the  respondent
filed Regular First Appeal No. 81 of 2009 before the  High  Court  of  Delhi
which was allowed by the High Court in terms of its order dated 14th  March,
2011 reversing the judgment  and  decree  passed  by  the  trial  Court  and
remanding the matter back to the said Court for disposal in accordance  with
law.  The present appeal by special leave assails  the  correctness  of  the
said judgment.

4.     Mr.  Nagendra  Rai,  learned  counsel  appearing  on  behalf  of  the
appellant, strenuously argued that the High Court had  fallen  in  error  in
holding that there was no clear admission by the defendant either  regarding
the existence of a relationship of landlord and tenant between  the  parties
or the service of notice of termination of tenancy upon  the  defendant.  He
referred to the averments made in the plaint and the  written  statement  to
buttress his submission that the existence of the tenancy was  unequivocally
admitted, no matter the defendant-tenant had questioned the validity of  the
lease deed in her  favour  for  want  of  stamp  duty  and  registration  as
required under law.  The fact that the lease deed  was  not  registered  did
not, contended Mr. Rai, make  any  material  difference  so  long  that  the
defendant had been put in possession of the  demised  property  pursuant  to
the said document and so long as she held the same as a  tenant.   The  rate
of rent was also not disputed by  the  defendant  nor  was  the  service  of
notice of termination, which aspects alone were relevant and if admitted  or
proved, sufficient for the Court to  decree  the  suit  for  the  relief  of
possession.  Mr. Rai submitted that the defendant had no doubt disputed  the
title of plaintiff-appellant and alleged that the land underlying the  super
structure had vested in the Gram Sabha  but  any  such  contention  was  not
available to her in view of Section 116 of the  Indian  Evidence  Act,  1872
that estopped a tenant from denying the  title  of  the  landlord.   Relying
upon the decisions of this  Court  in  Karam  Kapahi  v.  Lal  Chand  Public
Charitable Trust (2010) 4 SCC 753 and Charanjit Lal  Mehra  v.  Kamal  Saroj
Mahajan (2005) 11 SCC 279, Mr. Rai argued that the High Court ought to  have
refused  any  interference  with  the  decree  passed  by  the  Court  below
especially when no triable  issue  arose  for  determination  by  the  trial
Court.

5.    On behalf of the respondent, it was argued that  the  High  Court  was
justified in holding that the written statement did not contain a clear  and
unequivocal   admission of the relevant aspects,  namely  the  existence  of
the jural relationship of landlord and tenant between the  parties  and  the
termination of the tenancy by service of a notice under Section 106  of  the
Transfer of Property Act, 1882.  According to him, the High Court  was  also
justified in relying upon the decision of this Court  in  Jeevan  Diesels  &
Electricals Ltd. v. Jasbir Singh Chadha (2010) 6  SCC  601  while  reversing
the judgment and decree passed by the Court below.

6.    In a suit for recovery of possession from a tenant  whose  tenancy  is
not protected under the provisions of the Rent  Control  Act,  all  that  is
required to be established by the plaintiff-landlord  is  the  existence  of
the jural relationship of landlord and tenant between the  parties  and  the
termination of the tenancy either by lapse of time or by  notice  served  by
the landlord under Section 106 of the Transfer of Property Act.  So long  as
these two aspects are not in dispute the Court can pass a  decree  in  terms
of Order XII Rule 6 of the CPC, which reads as under:

         “Judgment on admissions-(1) Where admissions of fact have been made
         either in the pleading or otherwise, whether orally or in  writing,
         the Court may at any stage of the suit, either on  the  application
         of any party or of its own  motion  and  without  waiting  for  the
         determination of any other question between the parties, make  such
         order or give such judgment as it may think fit, having  regard  to
         such admissions.
         
         (2) Whenever a judgment is pronounced under sub-rule (1)  a  decree
         shall be drawn upon in accordance with the judgment and the  decree
         shall bear the date on which the judgment was pronounced.”



7.    The above sufficiently empowers the Court trying the suit  to  deliver
judgment based on admissions whenever such  admissions  are  sufficient  for
the  grant  of  the  relief  prayed  for.   Whether  or  not  there  was  an
unequivocal and clear admission on either of the two  aspects  to  which  we
have referred above and which are relevant to a suit for possession  against
a tenant is, therefore, the only question that falls  for  determination  in
this case and in every other case where the plaintiff seeks  to  invoke  the
powers of the Court under Order XII Rule 6 of the CPC and prays for  passing
of the decree on the basis of admission.   Having  said  that  we  must  add
that whether or not there is a clear admission upon the  two  aspects  noted
above is a matter to be seen in the fact situation prevailing in each  case.
  Admission made on the basis of pleadings in a given case cannot  obviously
be taken as an admission in a different fact situation.  That  precisely  is
the view taken by this Court in Jeevan Diesels &  Electricals  Ltd.  (supra)
relied upon by the High Court where this Court has observed:

       “Whether or not there is a clear, unambiguous admission by one  party
       of the case of the other party is essentially a question of fact  and
       the decision of this question depends on the facts of the case.   The
       question, namely, whether there is a clear admission or not cannot be
       decided on the basis of a judicial precedent.  Therefore, even though
       the principles in Karam Kapahi (supra) may  be  unexceptionable  they
       cannot be applied in the instant case in view  of  totally  different
       fact situation.”




8.    Coming then to the question whether there  is  any  admission  by  the
tenant-respondent regarding the  existence  of  the  jural  relationship  of
landlord and tenant between the parties, it  would be  profitable  to  refer
to the averments made by the plaintiff-appellant in para  2  of  the  plaint
which is to the following effect:

         “That the plaintiff had agreed to let out the  entire  property  at
         Khasra No. 857 min. (1-03) Village Tehsil Mehrauli in  the  NCT  of
         Delhi Gitorani alongwith superstructure including  servant  quarter
         and garage of  the  defendant  to  the  defendant  for  residential
         requirement at a monthly rent of Rs.50,000/- (Rupees fifty thousand
         only) towards the  rent  for  the  demised  premises  exclusive  of
         charges for the electricity appliances, fixtures and fittings for a
         period of three years commencing on 10th day of October  2001  vide
         lease agreement dated 10.10.2001.”




9.    In the written  statement  filed  by  her,  the  defendant  has  while
asserting that the averments made in para  2  above  are  vague,  false  and
wrong  asserted  that  the  property  in  question  was  not  let  out   for
residential purposes as alleged  by  the  tenant  but  was  constructed  for
commercial use and let out for that purpose  only.   The  execution  of  the
lease deed dated 10th October, 2001 to which the plaintiff made a  reference
in para 2 of the plaint is also not denied. Although the  defendant  appears
to be suggesting some collateral agreement also to have been orally  entered
into by the parties, the relevant portion of the written  statement  dealing
with these aspects may at this stage be extracted:

         “…………….  It is  further  denied  that  property  was  let  out  for
         residential purposes.  As submitted in  preceding  paras  the  said
         property was constructed for use of commercial purposes and was let
         out for commercial purposes at commercial rent.  Execution of Lease
         Deed is though not denied but is vehemently submitted that the said
         document was entered upon on the asking of  the  plaintiff  whereas
         the terms were different  than  those  incorporated  in  the  lease
         deed.”




10.   When placed in juxtaposition the averments made in the plaint and  the
written statement clearly spell out  an  admission  by  the  defendant  that
lease agreement dated 10th October 2001  was  indeed  executed  between  the
parties.   It  is  also  evident  that  the  monthly  rent  was  settled  at
Rs.50,000/- which fact too is clearly admitted  by  the  defendant  although
according to the defendant, the said amount represented rent for  commercial
use of  the  premises  and  not  residential  purposes  as  alleged  by  the
plaintiff.   Suffice it to say  that  the  averments  made  in  the  written
statement  clearly  accept  the  existence  of  the  jural  relationship  of
landlord and tenant between the parties no matter the  lease  agreement  was
not duly registered.  Whether the tenancy was for residential or  commercial
use of the property is wholly immaterial for  the  grant  of  a  decree  for
possession.  Even if the premises  were  let  out  for  commercial  and  not
residential use, the fact remained  that  the  defendant-respondent  entered
upon and is occupying the property as a  tenant  under  the  plaintiff.  The
nature of this use may be relevant for determination of  mesne  profits  but
not for passing of a decree for possession against the defendant.

11.   Incidentally, the defendant appears to  have  raised  in  the  written
statement a plea regarding the nature and  extent  of  the  super  structure
also.  While the plaintiff’s case is that the super structure as it  existed
on the date of the lease deed had been let out  to  the  defendant  and  the
defendant  had  made  structural  changes  without  any  authorisation,  the
defendant’s case is that the super structure was    constructed  by  her  at
her own cost pursuant to some oral agreement  between  the  parties.  It  is
unnecessary for us to delve deep into that aspect of the  dispute,  for  the
nature  and  extent  of  superstructure  or  the  legality  of  the  changes
allegedly made by the defendant is not relevant to the determination of  the
question whether the existence of tenancy is admitted by the defendant.   At
any rate, nature and extent  of  structure  whether  modified  or  even  re-
constructed by the defendant is a matter that can not alter  the  nature  of
the possession which the defendant holds in terms of the agreement  executed
by her. The relationship of the landlord and the tenant  remains  unaffected
even if the tenant has with or without the  consent  of  the  landlord  made
structural changes in the property.  Indeed if the tenancy was protected  by
the rent law and making of structural changes  was  a  ground  for  eviction
recognised by such law, it may have been necessary to  examine  whether  the
structure was altered and if so with or without the consent of the  parties.
 That is not the position in the present case.  The tenancy in  question  is
not protected under the Rent Control Act having regard to the fact that  the
rate of rent is more than Rs. 3500/- per month. It is, therefore, of  little
significance whether any structural change was made by the defendant and  if
so whether the same was authorised or otherwise.  The essence of the  matter
is that  the  relationship  of  the  landlord  and  the  tenant  is  clearly
admitted.  That is the most significant aspect to be examined by  the  Court
in a suit for possession especially when the plaintiff  seeks  a  decree  on
the basis of admissions.

12.   That brings us to the second question,  namely,  whether  the  tenancy
stands terminated either by lapse of time or by a  notice  served  upon  the
defendant.  The defendant-tenant did not have the benefit of a  secure  term
under a registered lease deed.  The result was that the tenancy was  only  a
month to month tenancy that could be terminated upon service of a notice  in
terms of Section 106 of the Transfer of Property Act.  The plaintiff’s  case
in para 6 of the plaint was that a notice was served upon the  tenant  under
Section 106 of the Transfer of Property Act pointing out that the defendant-
tenant had made substantial structural changes in the premises and  had  not
complied with the terms of the lease agreement.  The notice was duly  served
upon the tenant to which the tenant  has  not  replied.   Para  6  reads  as
under:

             “That  since  the  defendant  had  carried   out   substantial
         structural changes and further did not comply with the covenants of
         the lease agreement the plaintiff was compelled to serve  a  notice
         under Section 106 of the Transfer of Property Act.  The said notice
         was duly served upon the defendant and no reply to the said  notice
         has been received by the plaintiff or its counsel.”




13.   In reply, the defendant has not denied the service of  a  notice  upon
the defendant. Instead para 6  is  entirely  dedicated  to  the  defendant’s
claim that  the  whole  structure  standing  on  the  site  today  has  been
constructed by her out of her own money.  The defendant has  not  chosen  to
deny even impliedly leave alone specifically that notice  dated  17th  March
2003 was not served upon her.  In  para  6  of  the  preliminary  objections
raised in the written statement she has simply disputed the validity of  the
notice on the ground that that the same is not in  accordance  with  Section
106 of the Transfer of Property Act.  Para 6, reads as under:

         “That the alleged notice dated 17th March, 2003 is not as  per  the
         provisions of Section 106 of  Transfer  of  Property  Act.   It  is
         settled law that notice for termination  of  lease  has  to  be  in
         mandatory terms so specified in Section 106 of Transfer of Property
         Act.”




14.   Far from constituting a denial of the receipt of the notice the  above
is an admission of the fact that the notice was  received  by  her  but  the
same was not in accordance with Section 106  of  the  Transfer  of  Property
Act.  In fairness to counsel for the tenant-respondent in  this  appeal,  we
must record that the order passed by the High Court  was  not  supported  on
the plea of the notice being illegal for any reason.  A copy of  the  notice
in question is on the record and the same does not, in our  opinion,  suffer
from any illegality so as to make it non-est in the eye of law.

15.   We may, before parting, refer  to  yet  another  contention  that  was
raised by the defendant-respondent in her defence before the  courts  below.
In para 1 of the written statement filed by her it was  contended  that  the
property in question had vested in the Gram Sabha and  that  the  plaintiff,
therefore, could not seek her eviction from the same.  The  contention  was,
it appears, based on an order  dated  17th  February,  1999  passed  by  the
Revenue Authority under the Delhi Land Reforms Act whereby it  was  directed
that the property would stand vested in the Gram Sabha if the plaintiff  did
not re-convert the land in question for agricultural purposes  within  three
months. What is important is that the  tenancy  under  the  lease  agreement
dated 10th October, 2001 started subsequent  to  the  passing  of  the  said
order of the Revenue Authority.  In other words, the challenge to the  title
of the plaintiff qua the suit property was based on a document  anterior  to
the commencement of  the  tenancy  in  question.  It  also  meant  that  the
challenge was in substance a challenge to the landlord’s title on  the  date
of the commencement of the tenancy. Section 116 of the Evidence  Act,  1872,
however, estoppes the tenant from doing  so.  The  legal  position  in  this
regard is settled by several decisions of this Court and the Privy  Council.
Reference may in this regard be made to Mangat Ram v. Sardar Mehartan  Singh
(1987) 4 SCC 319 and Anar Devi (Smt.) v. Nathu Ram (1994) 4 SSC 251. In  the
later case this Court observed:


             “13. This Court in Sri Ram Pasricha  v.  Jagannath,  has  also
         ruled that in a suit  for  eviction  by  landlord,  the  tenant  is
         estopped from questioning the title  of  the  landlord  because  of
         Section 116 of the Act. The Judicial  Committee  in  Kumar  Krishna
         Prasad Lal Singha Deo v.  Baraboni  Coal  Concern  Ltd.,  when  had
         occasion to examine the contention  based  on  the  words  ‘at  the
         beginning of the tenancy’ in  Section  116  of  the  Evidence  Act,
         pronounced that they do not give a ground for a person  already  in
         possession of land becoming tenant  of  another,  to  contend  that
         there is no estoppel against his denying  his  subsequent  lessor's
         title. Ever since, the accepted position is that Section 116 of the
         Evidence Act applies and estops even a person already in possession
         as tenant  under  one  landlord  from  denying  the  title  of  his
         subsequent landlord when once he acknowledges him as  his  landlord
         by attornment or conduct. Therefore, a tenant of immovable property
         under landlord who becomes  a  tenant  under  another  landlord  by
         accepting him to be the owner who had derived title from the former
         landlord, cannot be permitted to deny the latter's title, even when
         he is sought to be evicted by the latter on a permitted ground.”



16.   To the same effect is the decision of Privy Council in Krishna  Prasad
v. Baraboni  Coal  Concern  Ltd.  AIR  1937  PC  251,  where  Privy  Council
observed:

           “The  section  postulates  that  there  is   a   tenancy   still
         continuing, it had its beginning at  a  given  date  from  a  given
         landlord.  It provides that neither a tenant nor any  one  claiming
         through a tenant shall  be  heard  to  deny  that  that  particular
         landlord had at that date a title to the property. In the  ordinary
         case of a lease intended as a present demise  (which  is  the  case
         before the Board, on this appeal) the section applies  against  the
         lessee, any assignee of the terms and any sub-lessee  or  licensee.
         What all such persons are precluded from denying is that the lessor
         had a title at the date of the lease and there is no exception even
         for the case where the lease itself discloses the defect of  title.
         The principle does not apply to disentitle a tenant from  disputing
         the derivative title  of  any  who  claims  to  have  since  become
         disentitled to the reversion……”




                                          (emphasis supplied)




17.   In the light  of  the  above,  the  trial  Court  was,  in  our  view,
perfectly justified in decreeing  the  suit  for  possession  filed  by  the
appellant by invoking its powers under Order XII  Rule  6  of  the  Code  of
Civil Procedure. Inasmuch as the High Court took a different  view  ignoring
the pleadings and the effect thereof, it committed a mistake.

18.    We accordingly allow this appeal, set aside  the  impugned  judgement
and order of the High Court and affirm the judgment  and  decree  passed  by
the trial Court.  The Parties are directed to bear their own costs.

19.   Keeping in view the fact that the premises in question is  being  used
by the tenant for commercial purposes, we grant to the defendant  time  till
31st December, 2012 to vacate the  same  on  furnishing  an  undertaking  in
usual terms before this Court within four weeks  from  today.   Needless  to
say that the defendant shall be liable to  pay  the  mesne  profit  for  the
period hereby granted at the rate determined by the trial Court.

20.   The appeal is allowed accordingly.




                                                  ……………………………………….……….…..…J.
                                                               (T.S. Thakur)









                                                 …………………………..…………………..…..…J.
                                                          (Gyan Sudha Misra)
New Delhi
September 20, 2012