advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, August 11, 2016

“tenant’s estoppel”=Tenant estopped to question the ownership of the landlords.=though defendant Bhanaram in his written statement had denied ownership of the plaintiffs he went on to add, “This being a suit for eviction of a tenant, the question of ownership is not relevant to the suit”. In his cross-examination he clearly admitted that the lease from Nazul Department stood in the name of the plaintiffs and that the witness himself had produced that document in some other proceedings. He had further admitted that he used to pay rent by money orders in the name of the father of the plaintiffs. On facts, it must be held that defendant Bhanaram had without any doubt regarded the plaintiffs as landlords and owners of the suit house. This matter is thus fully covered by the decision of this Court in Anar Devi’s case and it was not open to defendant Bhanaram to question the ownership of the plaintiffs- landlords.- In the circumstances, the view taken by the High Court while setting aside the concurrent decisions of the Courts below was not correct and justified. We, therefore, allow this appeal. While setting aside the judgment under appeal, we restore the decisions of the Trial Court and the Lower Appellate Court passed in the instant case.Since respondents are in occupation of the suit house for last more than 40 years, we deem it appropriate to grant them time upto 31st August, 2017 to vacate and hand-over peaceful possession of the suit house to the appellants subject to the respondents filing usual undertakings within four weeks from the date of this judgment. In case no such undertakings are filed by each of the respondents within the time so stipulated, the appellants shall be free to execute the decree for eviction of the suit house.

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.7360 OF 2016
                 (Arising out of SLP(Civil) No.9418 of 2011)


Ambika Savaria & Ors.                               ….Appellants



                                   Versus



Sanjay Sharma & Ors.                               …. Respondents

[[



                                   JUDGMENT



[

Uday Umesh Lalit,  J.



      1.     Leave  granted.  This  appeal  challenges  correctness  of  the
judgment  and  order  dated  20.10.2010  passed  by  the   High   Court   of
Chhattisgarh at Bilaspur allowing Second Appeal No.242 of 1989  and  setting
aside concurrent decisions of the Trial  Court  and  Lower  Appellate  Court
granting decree of eviction in favour of the appellants.





      2.    Civil Suit No.67-A of 1979 was  filed  by  Vasudev  Shyamji  and
Govind Shyamji, the predecessors of the appellants seeking eviction  of  one
Bhanaram Sharma, predecessor of the respondents from suit  house  which  was
described in the plaint as the front portion of house No.189/1, Ward  No.18,
Raigarh. The eviction was sought on grounds including bona  fide  need.   In
paragraph  2  of  his  written  statement  Bhanaram   stated,   “……..It   is
specifically denied that the plaintiffs are  owners  of  house  No.189/1  in
Ward No.18 of Raigarh Town. This being a suit for eviction of a  tenant  the
question of ownership is not relevant to the suit.”


      3.    Thus though it was denied that the  plaintiffs  were  owners  of
the suit house, in the very next sentence defendant Bhanaram  asserted  that
the question of ownership was not relevant in the  instant  suit.   Bhanaram
entered the witness box and  in  his  cross-examination  admitted  that  the
lease from Nazul Department stood in the name of  plaintiffs  and  that  the
witness himself had produced the same in  some  other  proceedings.  It  was
further accepted that he had paid rent by money orders sent in the  name  of
Shyamji Gangji, father of the plaintiffs.


      4.    The aforesaid suit was re-numbered  as  Civil  Suit  No.417A  of
1986.  After considering the evidence on  record  the  Trial  Court  by  its
judgment and order dated 21.01.1987 decreed  the  suit  principally  on  the
ground that the plaintiffs required the suit house  for  reconstruction  and
for bona fide need.



      5.    The matter having been carried in appeal by Bhanaram, the  Lower
Appellate Court also considered the  question  regarding  ownership  of  the
suit house.  While  considering  the  evidence  of  Bhanaram,  it  observed,
“……This witness has also admitted that lease from  nazul  of  this  property
was also accepted in the name of plaintiffs  and  he  himself  has  produced
that lease on his behalf in other civil court.”   The Lower Appellate  Court
affirmed the view taken by  the  Trial  Court  and  dismissed  Civil  Appeal
No.3A/87 vide its judgment and order dated 20.03.1989.



      6.    The heirs of Bhanaram namely the  respondents  being  aggrieved,
filed Second Appeal No.242 of 1989 in the  High  Court  of  Chhattisgarh  at
Bilaspur. This appeal came to be allowed by the  High  Court  vide  judgment
and order dated 20.10.2010.  It was observed by the High Court  that  for  a
plaintiff to succeed in seeking eviction of tenant on  the  ground  of  bona
fide need under Section 12(1)(e) of the  Chhatisgarh  Accommodation  Control
Act, 1961 (hereinafter referred to  as  the  “Act”)  it  was  incumbent   to
establish that he  was  owner  of  the  accommodation  in  question.   After
considering  the  evidence  on  record,  particularly  that   of   defendant
Bhanaram it was observed:

“Evidence of this witness, pleadings  and  evidence  of  defendant  Bhanaram
Sharma clearly reveal that father of Vasudev  Shyamji  i.e.  Shyamji  Gangji
was landlord of the suit accommodation,  but  was  not  owner  of  the  suit
accommodation.  In his detailed evidence, Vasudev  Shyamji  has  not  stated
anything to show that how he became owner of the suit accommodation.”



      According to the High Court, the fact that defendant Bhanaram used  to
pay rent of the suit  house  to  the  father  of  the  plaintiffs,  was  not
sufficient to prove ownership over the suit house especially when  ownership
was under dispute and the plaintiffs had not adduced any evidence  to  prove
the issue of ownership.



      7.    The aforesaid judgment of the  High  Court  is  presently  under
appeal. We heard Mr. Kamal Mohan Gupta, learned Advocate in support  of  the
quotation and Mr. Ujjal Banerjee,  learned  Advocate  for  the  respondents.
Relying on the decision of this Court in Anar Devi(Smt) v. Nathu  Ram[1]  it
was submitted  by  Mr.  Gupta,  learned  Advocate  that  the  defendant  was
estopped from questioning the title of the  plaintiffs  and  that  the  High
Court was in error in allowing the second  appeal.   Mr.  Banerjee,  learned
Advocate supported the view taken by the High Court and  submitted  that  no
evidence whatsoever was led to prove ownership of the suit house  which  was
necessary in view of Section 12(1)(e) of the Act.



      8.    The relevant provision, namely, Section 12(1)(e) of the  Act  is
as under:
 “12.   Restriction on eviction of tenants – (1)  Nothwithstanding  anything
to the contrary contained in any other law or contract,  no  suit  shall  be
filed in any civil  Court  against  a  tenant  for  his  eviction  from  any
accommodation except on one or more of the following grounds only, namely:
…………………………………………

(e) that the accommodation let for  residential  purpose  is  required  bona
fide by the landlord for occupation as a residence for himself  or  for  any
member of his family, if he is the owner thereof,  or  for  any  person  for
whose benefit the accommodation is  held  and  that  the  landlord  or  such
person has no other reasonably suitable  residential  accommodation  of  his
own in his occupation in the city or town concerned;
……………………………………………..”



      9.     In   Anar  Devi’s   case   the  provision  which  came  up  for
consideration was Section 23-A(b) of M.P. Accommodation  Control  Act  which
was  as under:-



“23-A. Special provisions for eviction of tenant  on  ground  of  bona  fide
requirement.— Notwithstanding anything contained in any other  law  for  the
time being in force or contract to the contrary, a landlord  may  submit  an
application, signed and verified in a manner provided in Rules 14 and 15  of
Order VI of the First Schedule to the Code of Civil Procedure,  1908  (V  of
1908) as if it were a plaint to the Rent Controlling  Authority  on  one  or
more of the following grounds for an order directing the tenant to  put  the
landlord in possession of the accommodation, namely—

(a)………..

Explanation….

(b)    that the accommodation let for non-residential purpose of  continuing
or starting his business or that of any  of  his  major  sons  or  unmarried
daughters, if he is the owner thereof or for any person  for  whose  benefit
the accommodation is held and that the landlord or such person has no  other
reasonably  suitable  non-residential  accommodation  of  his  own  in   his
occupation in the city or town concerned:

     …………………………………..….”




      10.   The relevant provision in  the  instant  case,  namely,  Section
12(1)(e) of the  Act  is  pari  materia   with  Section  23-A(b)  which  was
considered in Anar Devi’s  case.   The  expression,  “if  he  is  the  owner
thereof” is common and identically placed.  Para 18 of the decision in  Anar
Devi’s case  discloses  that  the  respondent-tenant  had  acknowledged  the
ownership of the accommodation as that of the  appellant  and  had  regarded
her as the landlord in his counter notice.    In the  circumstances  it  was
held that the  respondent  was  not  entitled  to  deny  the  title  of  the
appellant to the accommodation.  During the course  of  its  judgment,  this
Court dealt with “tenant’s estoppel”  as statutorily recognized  in  Section
116 of the Evidence Act and observed as under:-



“10. Since the doctrine of “tenant’s estoppel”  could  throw  light  on  the
question as to what can make a landlord to succeed in  enforcing  his  right
to recover possession of accommodation from a tenant  under  clause  (b)  of
Section 23-A of the Act, it would be advantageous to refer to its scope  and
applicability, before taking it up for our consideration.

11.“Doctrine  of  tenant’s  estoppel”  which  governs  the  relationship  of
landlord and tenant is founded on a contract  of  tenancy  entered  into  by
them, is well settled. Jessel,  M.R.,  who  adverted  to  that  doctrine  in
Stringer’s Estate, Shaw v. Jones-Ford[2] explains it thus:

       “Where a man having no title  obtains  possession  of  land  under  a
demise by a man in possession who assumes to give him a title as tenant,  he
cannot deny his landlord’s title, as, for instance, if he takes for  twenty-
one years and he finds that the landlord has  only  five  years’  title,  he
cannot after five years set up against the landlord the jus tertii,  though,
of course, the real  owner  can  always  recover  against  him.  That  is  a
perfectly intelligible doctrine. He took possession under a contract to  pay
rent so long as he held possession under the landlord, and to give it up  at
the end of the term to the landlord, and having taken it in that way  he  is
not allowed to say that the man whose title he admits and under whose  title
he took possession has not a title. That  is  a  well-established  doctrine.
That is estoppel by contract.”

12.  Indeed,  the  said  doctrine  of  tenant’s  estoppel,  finds  statutory
recognition in Section 116 of the Indian Evidence Act, 1872, for short  ‘the
Evidence Act’, in that, it states that “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”.

13. This Court in Sri Ram Pasricha v. Jagannath[3], 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.[4], 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.

14. The scope and applicability  of  the  doctrine  of  “tenant’s  estoppel”
being what we have said  of  it,  we  shall  now  proceed  to  consider  the
aforesaid question which has arisen with reference to the right of  landlord
under Section 23-A(b) of the Act in the matter of recovery of possession  of
the accommodation from the tenant.”


11.    In  the  instant  case  though  defendant  Bhanaram  in  his  written
statement had denied ownership of the plaintiffs he went on  to  add,  “This
being a suit for eviction of a tenant, the  question  of  ownership  is  not
relevant to the suit”. In his cross-examination  he  clearly  admitted  that
the lease from Nazul Department stood in the  name  of  the  plaintiffs  and
that  the  witness  himself  had  produced  that  document  in  some   other
proceedings.  He had further admitted that he used  to  pay  rent  by  money
orders in the name of the father of the plaintiffs.  On facts,  it  must  be
held that defendant Bhanaram had without any doubt regarded  the  plaintiffs
as landlords and owners of the  suit  house.   This  matter  is  thus  fully
covered by the decision of this Court in Anar Devi’s case  and  it  was  not
open to defendant Bhanaram to question  the  ownership  of  the  plaintiffs-
landlords.

12.   In the circumstances, the view taken by the High Court  while  setting
aside the concurrent decisions of the  Courts  below  was  not  correct  and
justified.  We, therefore,  allow  this  appeal.  While  setting  aside  the
judgment under appeal, we restore the decisions of the Trial Court  and  the
Lower Appellate Court passed in the instant case.





13.   Since respondents are in occupation of the suit house  for  last  more
than 40 years, we deem it appropriate to grant them time upto  31st  August,
2017 to vacate and hand-over peaceful possession of the suit  house  to  the
appellants subject to the respondents filing usual undertakings within  four
weeks from the date of this judgment.  In  case  no  such  undertakings  are
filed by each  of  the  respondents  within  the  time  so  stipulated,  the
appellants shall be free to execute the decree  for  eviction  of  the  suit
house.



14.   The appeal stands allowed in the aforesaid terms without any order  as
to costs.


      ………………………………J.
      (C. Nagappan)


      ………………………………J.
      (Uday Umesh Lalit)

      New Delhi,
      August 09, 2016











-----------------------
[1]

      [2]  (1994) 4 SCC 250
[3]

      [4] LR 6 Ch D 1:37 LT 233
[5]

      [6] (1976) 4 SCC 184

[7]

      [8] AIR 1937 PC 251


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.