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Friday, November 22, 2013

RENT EVICTION SUIT WITH OUT SURRENDERING THE POSSESSION, A TENANT CAN NOT CHALLENGE THE TITLE OF OWNER = Rent Control and Eviction - Suit for ejectment and resumption of possession of land filed by respondents on the ground that appellant-tenant failed to pay rent from 1986 - Plea of appellant in written statement that suit land actually belonged to him and the lease deed was executed and rent was paid to respondents by mistake of fact - Trial court decreed suit for eviction after recording finding that the appellants had failed to prove the title to the land - First appellate court and High Court upheld the decision of trial court. =It is well settled 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 were established by the appellants in this case - Therefore, appellants who were the tenants of the respondents would have to surrender possession to the respondents before they can challenge the title of the respondents - Although an averment was made in the plaint that respondents were owners of the suit land, no relief for declaration of title as such was claimed by the respondents - Only the relief of eviction was sought in the plaint on the ground that the lease had not been renewed after 1986 and the rent had not been paid since 1986- Therefore, this being not a suit of declaration of title and recovery of possession but only a suit for eviction, trial Court, first appellate court and High Court were not called upon to decide the question of title - The findings of courts below on title is, therefore, set aside, but the decree for eviction is maintained - The appellants are directed to vacate the suit land within six months - Suit, if any, filed by the appellants for declaration of title and consequential relief cannot be entertained by the court unless the appellants first vacate and handover possession to the respondents. = STATE OF A.P. & ORS. Appellant(s) VERSUS D. RAGHUKUL PERSHAD (D) BY LRS & ORS. Respondent(s) = published in http://judis.nic.in/supremecourt/helddis.aspx

Rent Control and Eviction - Suit for ejectment and resumption of possession
of land filed by respondents on the ground that appellant-tenant failed to
pay rent from 1986 - Plea of appellant in written statement that suit land
actually belonged to him and the lease deed was executed and rent was paid
to respondents by mistake of fact - Trial court decreed suit for eviction
after recording finding that the appellants had failed to prove the title
to the land - First appellate court and High Court upheld the decision of
trial court.

On appeal, held: Although plea was raised by appellants that the execution
of lease deed as well as payment of rent pursuant to the lease deed were
under mistake of fact, no issue as such was framed by trial Court on
whether the lease deed was executed by mistake of fact - This issue was an
issue of fact but as the issue was not framed, parties could not adduce
evidence and no finding as such was recorded by trial Court on the said
issue - Hence, this Court is not in a position to consider the argument of
the appellants that the lease deed was executed and the rent was paid by
mistake of fact - It is well settled 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 were established by the appellants in
this case - Therefore, appellants who were the tenants of the respondents
would have to surrender possession to the respondents before they can
challenge the title of the respondents - In the plaint as framed by
respondents in the instant case, the relief of eviction against the
appellants was not based on the title of the respondents - Although an
averment was made in the plaint that respondents were owners of the suit
land, no relief for declaration of title as such was claimed by the
respondents - Only the relief of eviction was sought in the plaint on the
ground that the lease had not been renewed after 1986 and the rent had not
been paid since 1986- Therefore, this being not a suit of declaration of
title and recovery of possession but only a suit for eviction, trial Court,
first appellate court and High Court were not called upon to decide the
question of title - The findings of courts below on title is, therefore,
set aside, but the decree for eviction is maintained - The appellants are
directed to vacate the suit land within six months - Suit, if any, filed by
the appellants for declaration of title and consequential relief cannot be
entertained by the court unless the appellants first vacate and handover
possession to the respondents.

D. Satyanarayana v. P. Jagdish 1987(4) SCC 424: 1988 (1) SCR 145 - relied
on.

Venkata Chetty v. Aiyanna Gounden AIR 1917 Madras 789 - referred to.

Case Law Reference:

AIR 1917 Madras 789 referred to Para 4
1988 (1) SCR 145 relied on Para 6

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5822 of 2012.

From the Judgment & Order dated 06.11.2009 of the High Court of Judicature,
Andhra Pradesh at Hyderabad in S.A. No. 270 of 2009.

P.S. Narasimha, C.K. Sucharita, P. Parmeshwar, K., Sriram P., Vishnu
Shankar Jain for the Appellants.

M.L. Verma, Venkateshwar Rao Anumolu, Satya Mirta, Prabhakar Parnam, T.
Kanaka Durga for the Respondents.


                                                  REPORTABLE


                          IN THE SUPREME COURT OF INDIA
                          CIVIL APPELLATE JURISDICTION


                          CIVIL APPEAL NO. 5822 OF 2012
                 (Arising out of SLP(Civil) No. 35306 of 2009)




      STATE OF A.P. & ORS.                          Appellant(s)


                       VERSUS


      D. RAGHUKUL PERSHAD (D) BY LRS & ORS.    Respondent(s)




                                  O R D E R




                 Leave granted.


                 The facts briefly are that the respondents herein filed  OS
      No. 2379 of 1990 in the Court of 5th Assistant Civil Judge, City Civil
      Court, Hyderabad against the appellants no. 1 to 4 for  ejectment  and
      resumption  of  possession  of  the  suit  land.   The  case  of   the
      respondents in the plaint was that the appellants had taken  lease  of
      the suit land from their common ancestor late Shri Dwaraka Pershad who
      had purchased the suit land from Nawab Raisyar Bahadur.   The  further
      case of the respondents in the  plaint  was  that  as  the  appellants
      failed to pay any rent from 1986 and renewed the lease after 1986, the
      respondents gave a notice to the appellants on  30.11.1989  to  vacate
      the suit land.  The appellants filed written statement pleading, inter
      alia, that the suit land actually belonged to the appellants  and  the
      lease deed had been executed  and  the  rent  had  been  paid  to  the
      respondents by mistake of fact.  The learned Civil Judge  decreed  the
      suit for eviction after recording a  finding,  inter  alia,  that  the
      appellants have not been able to prove the title  to  the  land.   The
      appellants filed First Appeal before the 3rd Additional  Chief  Judge,
      City Civil Court, Hyderabad which was numbered as AS No. 294 of  2005.
      The First Appellate Court held that the appellants were estopped  from
      setting up title  in  them  so  long  as  they  have  not  surrendered
      possession of the land to the lessees,  namely,  the  respondents  and
      further held that the appellants have not been able to establish their
      title to the suit land.


                 Aggrieved, the appellants filed Second Appeal SA No. 270 of
      2009 before the High Court and by the impugned order, the  High  Court
      has dismissed the Second Appeal  after  holding  that  the  appellants
      cannot be permitted to deny the title of  the  respondents  under  the
      provisions of 116 of the Indian Evidence Act and also holding that the
      appellants have not been able to adduce any evidence to prove that the
      suit land belonged to the appellants.  The High Court also held in the
      impugned order that in a writ petition  WP  No.  9717  of  1993  filed
      before the High  Court  one  Mohammed  Khasim  and  Ameena  Begum  had
      challenged  the  entries  with  regard  to  Survey  No.   58(Old)   of
      Bahloolkhanguda  Survey No. 127(new) and the High Court  had  observed
      that Rayees Yar Jung was the owner  and sales made by Rayees Yar  Jung
      were therefore, valid.  The High Court further observed that the order
      passed by the High Court  in  writ  petition  no.  9717  of  1993  was
      challenged before this Court by the  Government  but  this  Court  had
      dismissed the appeal and therefore, the appellants were estopped  from
      taking a different stand with regard to the  ownership  of  the  land.
      With the aforesaid findings,  the  High  Court  dismissed  the  Second
      Appeal of the appellants.


                 Mr. P.S. Narasimha, learned senior  counsel  appearing  for
      the appellants cited a full Bench Judgment of the Madras High Court in
      Venkata  Chetty  Vs.  Aiyanna  Gounden  AIR  1917   Madras   789   and
      particularly the observations of Abdul Rahim, officiating C.J., to the
      effect that a tenant who was not let into  possession  by  the  person
      seeking to eject him is not  estopped  from  denying  the  plaintiff's
      title and he may also show that the title is in some third  person  or
      himself.  He also relied on the observations of Sheshagiri  Aiyar,  J.
      in the  aforesasid case that under the Indian Contract Act, it can  be
      shown that any contract  into  which  a  party  has  entered  into  is
      vitiated by mistake and the principle of estoppel should not  be  held
      to override these provisions of law of contract.  He argued relying on
      the aforesaid observations in the judgment of the  Madras  High  Court
      that the appellants, therefore, were entitled to plead in the  written
      statement that the execution of the lease acknowledging title  of  the
      respondents was a  mistake  of  fact  and  that  the  appellants  were
      actually the owners of the suit land.


                  We  have  considered  the  submissions  of       Mr.  P.S.
      Narasimha and we find that although plea was raised by the  appellants
      in their written statement that the execution of the lease deed in the
      present case, as well as payment of rent pursuant to  the  lease  deed
      were under mistake of fact, no issue as such was framed by  the  trial
      Court on whether the lease deed was executed by mistake of fact.  This
      issue is an issue of fact and it is at the stage of  trial  that  this
      issue will have to be raised and framed by the  trial  Court  so  that
      parties could lead evidence on the issue.  In this case, as this issue
      has not been framed, parties have not adduced evidence and no  finding
      as such has been recorded by the trial Court on this issue.  Hence, we
      are not in a position to consider the argument of Mr.  P.S.  Narasimha
      that the lease deed was executed and the rent was paid by  mistake  of
      fact.


                 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.


                 In the plaint as framed by the respondents in  the  present
      case, the relief of eviction against the appellants was not  based  on
      the title of the respondents.  Mr. M.L. Varma, learned senior  counsel
      appearing for the respondents vehemently submitted that on  a  reading
      of the plaint, it will appear that the respondents had claimed  to  be
      owners of the land.  We find that although an averment has  been  made
      in the plaint that the respondents were the owners of the  suit  land,
      no relief for declaration of title as such has  been  claimed  by  the
      respondents.  Only the relief of eviction was sought in the plaint  on
      the ground that the lease had not been renewed after 1986 and the rent
      had not been paid since 1986.  In our  considred  opinion,  therefore,
      this being not  a  suit  of  declaration  of  title  and  recovery  of
      possession but only a suit for eviction, the trial  Court,  the  First
      Appellate Court and the High Court were not called upon to decide  the
      question of title.


                 For the aforesaid reasons, we set aside the findings of the
      trial Court, the First Appellate Court and the High  Court  on  title,
      but we maintain the decree for eviction.  We, however, order that  the
      appellants will vacate the suit land within six months from today  and
      further make it clear that the suit, if any, filed by  the  appellants
      for  declaration  of  title  and  consequential   relief   cannot   be
      entertained by the  Court  unless  the  appellants  first  vacate  and
      handover possession to the respondents.


                 The judgment of the Courts below are modified  accordingly.
      The appeal is allowed to the extent indicated above.  No costs.






                               ..............................J.
                               (A.K. PATNAIK)




                               ..............................J.
                               (SUDHANSU JYOTI MUKHOPADHAYA)


      NEW DELHI
      AUGUST 08, 2012.



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