Sec.12 (1)(c) of M.P.Act - Eviction suit - Purchaser filed suit for eviction as the defendant failed to pay rent and for demolishing the old building - Defendant denied the title - denied the sale deed - admitted tenancy under predecessor - in - title of plaintiff - suit decreed - Appeal confirmed - High court wrongly reversed as the defendant not admitted landlord and tenancy relationship as demanded by him no documents were given to him prior to filing of suit about the transfer of title - Apex court set aside the order of High court on the ground that a tenant can not deny the title of the subsequent owner who purchased the property under reg. sale deed - denial of title of owner in the written statement even after receiving all records was also a good ground for eviction under sec.12 (1)(c) of M.P. Act =
At the time of purchase
of the said building, the respondent-tenant was occupying one room (‘suit
premises’) situated on the rear side of the said building as tenant. The
respondent was informed by the predecessors-in-title of the appellant that
the appellant is the new landlady of the said building and he should pay
the rent to her.
The respondent agreed to pay the rent but failed to pay
it. Failure of the respondent to pay the rent resulted in a notice being
sent by the appellant to him on 23/11/2002, but despite the notice the
respondent did not pay the rent.-
The respondent denied that
there was any attornement between the parties and that there was a landlord-
tenant relationship between him and the appellant. He claimed to be tenant
of the earlier landlord Shri Khar. He contended that he had never paid any
rent to the appellant. He denied the genuineness of the registered sale
deed dated 26/9/1991.
6. The trial court decreed the suit under Section 12(1)(c) of the M.P.
Act. The suit was dismissed so far as the other grounds are concerned.
The trial court’s judgment was confirmed by the first appellate court. The
High Court by the impugned order set aside the eviction decree passed by
the courts below holding that in the facts of the case no decree under
Section 12 (1) (c) of the M.P. Act could be passed. =
In eviction proceedings the question
of title to the properties in question may be incidentally gone into, but
cannot be decided finally. Similar question fell for consideration of this
Court in Bhagadi Kannabalu. In that case it was argued that the landlady
was not entitled to inherit the properties in question and hence could not
maintain the application for eviction on the ground of default and sub-
letting under the A.P. Tenancy Act. This Court referred to its decision in
Tej Bhan Madan v. II Additional District Judge and Ors.[11] in which it
was held that a tenant was precluded from denying the title of the landlady
on the general principle of estoppel between landlord and tenant and that
this principle, in its basic foundations, means no more than that under
certain circumstances law considers it unjust to allow a person to
approbate and reprobate. Section 116 of the Evidence Act is clearly
applicable to such a situation. This Court held that even if the landlady
was not entitled to inherit the properties in question, she could still
maintain the application for eviction and the finding of fact recorded by
the courts below in favour of the landlady was not liable to be disturbed.
The position on law was stated by this Court as under:
“In this connection, we may also point out that in an eviction
petition filed on the ground of sub-letting and default, the
court needs to decide whether relationship of landlord and
tenant exists and not the question of title to the properties in
question, which may be incidentally gone into, but cannot be
decided finally in the eviction proceeding.”
Reliance placed by learned counsel for the respondent on Mohd. Nooman
is misplaced.
In that case, the landlord had filed an eviction suit
described as Title Suit No.36 of 1973 to evict the tenant.
The trial court
held that the relationship of landlord and tenant had not been proved and
since the tenant had raised the question of title the proper course would
be to dismiss the suit and not to convert it into a declaratory suit
because the suit was neither for declaration of title nor had the plaintiff
paid ad valorem court fee.
The trial court dismissed the suit as there was
no landlord and tenant relationship, but, upheld the plaintiff’s claim of
title. In the appeal, the first appellate court observed that by filing a
suit for eviction and paying court fee on twelve months alleged rent, the
plaintiff had adopted a tricky way of getting the title decided. The
plaintiff, then, filed a suit on title. The trial court decreed the suit.
The first appellate court allowed the appeal and dismissed the suit. In
the second appeal before the High Court the question was whether the
judgment and decree regarding title passed in the earlier suit shall
operate as res judicata between the parties on the question of title.
The
High Court observed that pleas taken by both parties regarding title in
both the title suits are the same and answered the question in affirmative.
This Court endorsed the High Court’s view and held that the issue of title
was directly and substantially an issue between the parties in the earlier
eviction suit, hence, the High Court was right in holding that the finding
of title recorded in the earlier suit would operate as res judicata in the
subsequent suit. This view was expressly restricted by this Court to the
facts before it. This Court clarified that ordinarily it is true that in a
suit for eviction even if the court goes into the question of title it
examines the issue in an ancillary manner and in such cases (which
constitute a very large majority) any observation or finding on the
question of title would certainly not be binding in any subsequent suit on
the dispute of title.
This Court further clarified that the case with
which it was dealing fell in an exceptional category of very limited number
of cases.
Thus, in our opinion, no parallel can be drawn from Mohd.
Nooman. In that case issue of title was framed. In the instant case
issue of title was not even framed. Mohd. Nooman arose out of exceptional
facts and must be restricted to those facts.
In view of the above, we are of the opinion that the High Court was
wrong in setting aside the concurrent finding of fact recorded by the
courts below that the respondent had denied the title of the appellant. We
are of the view that the present case is covered by Section 12(1)(c) of the
M.P. Act. It is, therefore, necessary to restore the decree of eviction.
In the circumstances, we allow the appeal. The impugned judgment of the
High Court is set aside and eviction decree passed by the trial court and
confirmed by the first appellate court under Section 12(1)(c) of the M.P.
Act is restored.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 106 OF 2014
[Arising out of Special Leave Petition (Civil) No.5126 of 2011]
KESHAR BAI … APPELLANT
Versus
CHHUNULAL … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by grant of special leave, is directed against the
judgment and order dated 03/08/2010 passed by the High Court of Madhya
Pradesh, Bench at Indore allowing Second Appeal No. 756 of 2004 filed by
the respondent.
3. Briefly put, the facts are that the appellant-landlady purchased House
No. 1/2, Street No. 6, Parsi Mohallah, Indore (‘the said building’) from
M/s. Pyare Mohan Khar, Hari Mohan Khar, Shayam Sunder Khar and Anil Khar
predecessors-in-title of the appellant by a registered sale deed dated
26/9/1991 for a consideration of Rs. 1,70,000/-.
At the time of purchase
of the said building, the respondent-tenant was occupying one room (‘suit
premises’) situated on the rear side of the said building as tenant. The
respondent was informed by the predecessors-in-title of the appellant that
the appellant is the new landlady of the said building and he should pay
the rent to her.
The respondent agreed to pay the rent but failed to pay
it. Failure of the respondent to pay the rent resulted in a notice being
sent by the appellant to him on 23/11/2002, but despite the notice the
respondent did not pay the rent.
4. On 06/1/2003, the appellant filed a suit for eviction of the
respondent under the M.P. Accommodation Control Act, 1961 (‘the M.P. Act’)
on grounds of non-payment of rent, denial of the appellant’s title by the
respondent, bona fide need for residential purpose and reconstruction of
the said building as it had become unsafe for human habitation. It was
specifically averred in the plaint that the appellant had purchased the
said building vide a registered document on 26/9/1991.
5. The respondent contested the said suit and filed a written statement
denying the title of the appellant as well as the grounds on which his
eviction from the suit premises was sought.
The respondent denied that
there was any attornement between the parties and that there was a landlord-
tenant relationship between him and the appellant. He claimed to be tenant
of the earlier landlord Shri Khar. He contended that he had never paid any
rent to the appellant. He denied the genuineness of the registered sale
deed dated 26/9/1991.
6. The trial court decreed the suit under Section 12(1)(c) of the M.P.
Act. The suit was dismissed so far as the other grounds are concerned.
The trial court’s judgment was confirmed by the first appellate court. The
High Court by the impugned order set aside the eviction decree passed by
the courts below holding that in the facts of the case no decree under
Section 12 (1) (c) of the M.P. Act could be passed.
The controversy,
therefore, revolves around Section 12(1)(c) of the M.P. Act in the context
of the facts of this case.
7. Shri Ardhendumauli Kumar Prasad, learned counsel for the appellant,
submitted that both the courts having concurrently found that the landlord
was entitled to a decree of eviction under Section 12(1)(c) of the M.P. Act
and since there was no perversity attached to the said finding, the High
Court ought not to have interfered with it while dealing with a second
appeal, particularly, when there was no substantial question of law
involved in the matter. In this connection, he relied on Deep Chandra
Juneja v. Lajwanti Kathuria (dead) through LRs.[1], Yash Pal v. Ram Lal
& Ors.[2] and Firojuddin & Anr. v. Babu Singh[3].
Mr. Prasad submitted
that it is clearly established from the evidence on record that the
respondent had denied the title of the appellant and, therefore, the case
clearly falls within the ambit of Section 12(1)(c) of the M.P. Act. The
eviction decree was, therefore, correctly passed by the trial court and
confirmed by the first appellate court. In this connection he relied on
Devasahyam v. P. Savithramma[4], State of Andgra Pradesh & Ors. v. D.
Raghukul Pershad(dead) by LRs.& Ors.[5] and Bhogadi Kannababu & Ors. v.
Vuggina Pydamma & Ors.[6]. Counsel submitted that in the circumstances the
impugned order be set aside.
8. Shri Amit Pawan, learned counsel for the respondent, on the other
hand submitted that attornment of tenancy to the appellant is not proved.
Counsel submitted that the respondent had no knowledge about the sale
transaction that allegedly took place between the appellant and Shri Khar,
under which the appellant is said to have purchased the suit premises.
This is a case of derivative title which the tenant can deny if he had no
knowledge of the sale transaction. Counsel submitted that the trial court
and lower appellate court ignored this vital legal position and, therefore,
the High Court rightly set aside the eviction decree. Counsel relied on
Mohd. Nooman & Ors. v. Mohd. Jabed Alam & Ors.[7] in support of his
submission that the issue regarding title can be decided in an eviction
suit and, therefore, it was correctly raised by the respondent.
9. It is well settled by a long line of judgments of this Court that the
High Court should not interfere with a concurrent finding of fact unless it
is perverse. (See: Deep Chandra Juneja, Yash Pal & Firojuddin).
In this
case, for the reasons which we shall soon record, we are unable to find any
such perversity in the concurrent finding of fact returned by the courts
below warranting the High Court’s interference.
10. The trial court passed the decree under Section 12 (1)(c) of the M.P.
Act on the ground that the respondent-tenant denied the title of the
appellant-landlady.
It was confirmed by the first appellate court. It is,
therefore, necessary to reproduce Section 12(1) (c) of the M.P. Act. It
reads as under:
“12. Restriction on eviction of tenants.—
(1) Notwithstanding
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—
(a) xxx
(b) xxx
(c) that the tenant or any person residing with him has created
nuisance or has done any act which is inconsistent with the purpose
for which he was admitted to the tenancy of the accommodation, or
which is likely to affect adversely and substantially the interest
of the landlord therein:
Provided that the use by a tenant of a portion of the accommodation
as his office shall not be deemed to be an act inconsistent with
the purpose for which he was admitted to the tenancy;”
11. The first question that arises is how denial of title falls within
the ambit of Section 12(1)(c) of the M.P. Act.
Under Section 111(g) of the
Transfer of Property Act, 1882, the lease is determined by forfeiture, if
the lessee denies the lessor’s title.
While dealing with eviction suit,
arising out of the M.P. Act, in Devasahayam, this Court has held that so
just is the above rule that in various rent control legislations such a
ground is recognized and incorporated as a ground for eviction of a tenant
either expressly or impliedly within the net of an act injurious to the
interest of the landlord. It is further held that denial of landlord’s
title or disclaimer of tenancy by tenant is an act which is likely to
affect adversely and substantially the interest of the landlord. It is,
therefore, covered by Section 12(1)(c) of the M.P. Act.
The following
observations of this Court in Devasahayam are relevant:
“27. In Sheela v. Prahlad Rai Prem Prakash[8] whereupon Mr. Nageswara
Rao placed strong reliance, Lahoti, J., as the learned Chief Justice then
was, while construing the provisions of clause (c) of sub-section (1) of
Section 12 of the M.P. Accommodation Control Act, 1961 observed:
13. The law as to tenancy being determined by forfeiture by
denial of the lessor’s title or disclaimer of the tenancy has
been adopted in India from the law of England where it
originated as a principle in consonance with justice, equity and
good conscience. On enactment of the Transfer of Property Act,
1882, the same was incorporated into clause (g) of Section 111.
So just is the rule that it has been held applicable even in the
areas where the Transfer of Property Act does not apply. (See:
Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur[9].)
The principle of determination of tenancy by forfeiture
consequent upon denial of the lessor’s title may not be
applicable where rent control legislation intervenes and such
legislation while extending protection to tenants from eviction
does not recognise such denial or disclaimer as a ground for
termination of tenancy and eviction of tenant. However, in
various rent control legislations such a ground is recognised
and incorporated as a ground for eviction of tenant either
expressly or impliedly by bringing it within the net of an act
injurious to the interest of the landlord on account of its
mischievous content to prejudice adversely and substantially the
interest of the landlord.
… … … …
… … … …
17. In our opinion, denial of landlord’s title or disclaimer of
tenancy by tenant is an act which is likely to affect adversely
and substantially the interest of the landlord and hence is a
ground for eviction of tenant within the meaning of clause (c)
of sub-section (1) of Section 12 of the M.P. Accommodation
Control Act, 1961. To amount to such denial or disclaimer, as
would entail forfeiture of tenancy rights and incur the
liability to be evicted, the tenant should have renounced his
character as tenant and in clear and unequivocal terms set up
title of the landlord in himself or in a third party. A tenant
bona fide calling upon the landlord to prove his ownership or
putting the landlord to proof of his title so as to protect
himself (i.e. the tenant) or to earn a protection made available
to him by the rent control law but without disowning his
character of possession over the tenancy premises as tenant
cannot be said to have denied the title of landlord or
disclaimed the tenancy. Such an act of the tenant does not
attract applicability of Section 12(1)(c) abovesaid. It is the
intention of the tenant, as culled out from the nature of the
plea raised by him, which is determinative of its
vulnerability.”
12. Having ascertained the legal position we will now state why we feel
that the High Court is not right in disturbing the concurrent finding of
fact that the respondent-tenant denied the title of the appellant-landlady.
13. There is a specific reference to the registered document under which
the appellant purchased the suit building from the earlier landlord in the
plaint. Yet, in the written statement the respondent denied the title of
the appellant. We notice that there are several documents on record
relating to the ownership of the appellant, apart from the registered sale
deed, such as municipal tax receipts, ration card etc. Yet, the respondent
refused to acknowledge the appellant’s title. He denied it in his
evidence. This is not a simple case of denial of derivative title by a
person who did not know about the purchase of the building by the landlord.
Even after going through the relevant documents relating to the
appellant’s title the respondent feigned ignorance about it.
The High
Court has accepted that in his cross-examination the respondent has stated
that he was not accepting the appellant as his landlady. The High Court
has, however, gone on to say that by this piece of evidence no decree of
eviction can be passed against the respondent under Section 12(1)(c) of the
M.P. Act because the respondent will have no occasion to establish in what
circumstances he denied the title of the appellant. The High Court has
further held that the respondent was within permissible limit in asking the
appellant to produce documentary evidence about his title as a landlord.
The High Court, in our opinion, fell into a grave error in drawing such a
conclusion. Even denial of a landlord’s title in the written statement can
provide a ground for eviction of a tenant.
It is also settled position in
law that it is not necessary that the denial of title by the landlord
should be anterior to the institution of eviction proceedings. This is so
stated by this Court in Majati Subbarao v. P.V.K. Krishnarao(deceased) by
LRs.[10].
14. The High Court has expressed that the respondent was justified in
asking the appellant to produce the documents. Implicit in this
observation is the High Court’s view that the respondent could have in an
eviction suit got the title of the appellant finally adjudicated upon.
There is a fallacy in this reasoning. In eviction proceedings the question
of title to the properties in question may be incidentally gone into, but
cannot be decided finally. Similar question fell for consideration of this
Court in Bhagadi Kannabalu. In that case it was argued that the landlady
was not entitled to inherit the properties in question and hence could not
maintain the application for eviction on the ground of default and sub-
letting under the A.P. Tenancy Act. This Court referred to its decision in
Tej Bhan Madan v. II Additional District Judge and Ors.[11] in which it
was held that a tenant was precluded from denying the title of the landlady
on the general principle of estoppel between landlord and tenant and that
this principle, in its basic foundations, means no more than that under
certain circumstances law considers it unjust to allow a person to
approbate and reprobate. Section 116 of the Evidence Act is clearly
applicable to such a situation. This Court held that even if the landlady
was not entitled to inherit the properties in question, she could still
maintain the application for eviction and the finding of fact recorded by
the courts below in favour of the landlady was not liable to be disturbed.
The position on law was stated by this Court as under:
“In this connection, we may also point out that in an eviction
petition filed on the ground of sub-letting and default, the
court needs to decide whether relationship of landlord and
tenant exists and not the question of title to the properties in
question, which may be incidentally gone into, but cannot be
decided finally in the eviction proceeding.”
15. Reliance placed by learned counsel for the respondent on Mohd. Nooman
is misplaced.
In that case, the landlord had filed an eviction suit
described as Title Suit No.36 of 1973 to evict the tenant.
The trial court
held that the relationship of landlord and tenant had not been proved and
since the tenant had raised the question of title the proper course would
be to dismiss the suit and not to convert it into a declaratory suit
because the suit was neither for declaration of title nor had the plaintiff
paid ad valorem court fee.
The trial court dismissed the suit as there was
no landlord and tenant relationship, but, upheld the plaintiff’s claim of
title. In the appeal, the first appellate court observed that by filing a
suit for eviction and paying court fee on twelve months alleged rent, the
plaintiff had adopted a tricky way of getting the title decided. The
plaintiff, then, filed a suit on title. The trial court decreed the suit.
The first appellate court allowed the appeal and dismissed the suit. In
the second appeal before the High Court the question was whether the
judgment and decree regarding title passed in the earlier suit shall
operate as res judicata between the parties on the question of title.
The
High Court observed that pleas taken by both parties regarding title in
both the title suits are the same and answered the question in affirmative.
This Court endorsed the High Court’s view and held that the issue of title
was directly and substantially an issue between the parties in the earlier
eviction suit, hence, the High Court was right in holding that the finding
of title recorded in the earlier suit would operate as res judicata in the
subsequent suit. This view was expressly restricted by this Court to the
facts before it. This Court clarified that ordinarily it is true that in a
suit for eviction even if the court goes into the question of title it
examines the issue in an ancillary manner and in such cases (which
constitute a very large majority) any observation or finding on the
question of title would certainly not be binding in any subsequent suit on
the dispute of title.
This Court further clarified that the case with
which it was dealing fell in an exceptional category of very limited number
of cases.
Thus, in our opinion, no parallel can be drawn from Mohd.
Nooman. In that case issue of title was framed. In the instant case
issue of title was not even framed. Mohd. Nooman arose out of exceptional
facts and must be restricted to those facts.
16. In view of the above, we are of the opinion that the High Court was
wrong in setting aside the concurrent finding of fact recorded by the
courts below that the respondent had denied the title of the appellant. We
are of the view that the present case is covered by Section 12(1)(c) of the
M.P. Act. It is, therefore, necessary to restore the decree of eviction.
In the circumstances, we allow the appeal. The impugned judgment of the
High Court is set aside and eviction decree passed by the trial court and
confirmed by the first appellate court under Section 12(1)(c) of the M.P.
Act is restored.
17. The appeal is disposed of in the afore-stated terms.
………………………………………J.
(Ranjana Prakash Desai)
………………………………………J.
(J. Chelameswar)
New Delhi,
January 7, 2014.
ITEM NO.1A COURT NO.12 SECTION IVA
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.106 of 2014
arising out of
Petition(s) for Special Leave to Appeal (C) No.5126/2011
(From the judgement and order dated 03/08/2010 in SA No.756/2004 of The
HIGH COURT OF M.P AT INDORE)
KESHAR BAI Petitioner(s)
VERSUS
CHHUNULAL Respondent(s)
Date: 07/01/2014 This Petition was called on for
pronouncement of judgment today.
For Petitioner(s) Mr. Ardhendumauli Kumar Prasad, Adv.
Mr. A. Shukla, Adv.
Mr. Nirnimesh Dube,Adv.
For Respondent(s) Mr. Amit Pawan,Adv.
Hon'ble Mrs. Justice Ranjana Prakash Desai pronounced the
reportable judgment of the Bench comprising Her Ladyship and Hon'ble
Mr. Justice J. Chelameswar.
The appeal is disposed of in terms of the signed reportable
judgment.
[RAJNI MUKHI] [USHA SHARMA]
SR. P.A. COURT MASTER
(Signed reportable Judgment is placed on the file)
-----------------------
[1] (2008) 8 SCC 497
[2] (2005) 12 SCC 239
[3] (2012) 3 SCC 319
[4] (2005) 7 SCC 653
[5] (2012) 8 SCC 584
[6] (2006) 5 SCC 532
[7] (2010) 9 SCC 560
[8] (2002) 3 SCC 375
[9] AIR 1965 SC 1923
[10] (1989) 4 SCC 732
[11] (1988) 3 SCC 137
-----------------------
16
At the time of purchase
of the said building, the respondent-tenant was occupying one room (‘suit
premises’) situated on the rear side of the said building as tenant. The
respondent was informed by the predecessors-in-title of the appellant that
the appellant is the new landlady of the said building and he should pay
the rent to her.
The respondent agreed to pay the rent but failed to pay
it. Failure of the respondent to pay the rent resulted in a notice being
sent by the appellant to him on 23/11/2002, but despite the notice the
respondent did not pay the rent.-
The respondent denied that
there was any attornement between the parties and that there was a landlord-
tenant relationship between him and the appellant. He claimed to be tenant
of the earlier landlord Shri Khar. He contended that he had never paid any
rent to the appellant. He denied the genuineness of the registered sale
deed dated 26/9/1991.
6. The trial court decreed the suit under Section 12(1)(c) of the M.P.
Act. The suit was dismissed so far as the other grounds are concerned.
The trial court’s judgment was confirmed by the first appellate court. The
High Court by the impugned order set aside the eviction decree passed by
the courts below holding that in the facts of the case no decree under
Section 12 (1) (c) of the M.P. Act could be passed. =
In eviction proceedings the question
of title to the properties in question may be incidentally gone into, but
cannot be decided finally. Similar question fell for consideration of this
Court in Bhagadi Kannabalu. In that case it was argued that the landlady
was not entitled to inherit the properties in question and hence could not
maintain the application for eviction on the ground of default and sub-
letting under the A.P. Tenancy Act. This Court referred to its decision in
Tej Bhan Madan v. II Additional District Judge and Ors.[11] in which it
was held that a tenant was precluded from denying the title of the landlady
on the general principle of estoppel between landlord and tenant and that
this principle, in its basic foundations, means no more than that under
certain circumstances law considers it unjust to allow a person to
approbate and reprobate. Section 116 of the Evidence Act is clearly
applicable to such a situation. This Court held that even if the landlady
was not entitled to inherit the properties in question, she could still
maintain the application for eviction and the finding of fact recorded by
the courts below in favour of the landlady was not liable to be disturbed.
The position on law was stated by this Court as under:
“In this connection, we may also point out that in an eviction
petition filed on the ground of sub-letting and default, the
court needs to decide whether relationship of landlord and
tenant exists and not the question of title to the properties in
question, which may be incidentally gone into, but cannot be
decided finally in the eviction proceeding.”
Reliance placed by learned counsel for the respondent on Mohd. Nooman
is misplaced.
In that case, the landlord had filed an eviction suit
described as Title Suit No.36 of 1973 to evict the tenant.
The trial court
held that the relationship of landlord and tenant had not been proved and
since the tenant had raised the question of title the proper course would
be to dismiss the suit and not to convert it into a declaratory suit
because the suit was neither for declaration of title nor had the plaintiff
paid ad valorem court fee.
The trial court dismissed the suit as there was
no landlord and tenant relationship, but, upheld the plaintiff’s claim of
title. In the appeal, the first appellate court observed that by filing a
suit for eviction and paying court fee on twelve months alleged rent, the
plaintiff had adopted a tricky way of getting the title decided. The
plaintiff, then, filed a suit on title. The trial court decreed the suit.
The first appellate court allowed the appeal and dismissed the suit. In
the second appeal before the High Court the question was whether the
judgment and decree regarding title passed in the earlier suit shall
operate as res judicata between the parties on the question of title.
The
High Court observed that pleas taken by both parties regarding title in
both the title suits are the same and answered the question in affirmative.
This Court endorsed the High Court’s view and held that the issue of title
was directly and substantially an issue between the parties in the earlier
eviction suit, hence, the High Court was right in holding that the finding
of title recorded in the earlier suit would operate as res judicata in the
subsequent suit. This view was expressly restricted by this Court to the
facts before it. This Court clarified that ordinarily it is true that in a
suit for eviction even if the court goes into the question of title it
examines the issue in an ancillary manner and in such cases (which
constitute a very large majority) any observation or finding on the
question of title would certainly not be binding in any subsequent suit on
the dispute of title.
This Court further clarified that the case with
which it was dealing fell in an exceptional category of very limited number
of cases.
Thus, in our opinion, no parallel can be drawn from Mohd.
Nooman. In that case issue of title was framed. In the instant case
issue of title was not even framed. Mohd. Nooman arose out of exceptional
facts and must be restricted to those facts.
In view of the above, we are of the opinion that the High Court was
wrong in setting aside the concurrent finding of fact recorded by the
courts below that the respondent had denied the title of the appellant. We
are of the view that the present case is covered by Section 12(1)(c) of the
M.P. Act. It is, therefore, necessary to restore the decree of eviction.
In the circumstances, we allow the appeal. The impugned judgment of the
High Court is set aside and eviction decree passed by the trial court and
confirmed by the first appellate court under Section 12(1)(c) of the M.P.
Act is restored.
2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41138
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 106 OF 2014
[Arising out of Special Leave Petition (Civil) No.5126 of 2011]
KESHAR BAI … APPELLANT
Versus
CHHUNULAL … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by grant of special leave, is directed against the
judgment and order dated 03/08/2010 passed by the High Court of Madhya
Pradesh, Bench at Indore allowing Second Appeal No. 756 of 2004 filed by
the respondent.
3. Briefly put, the facts are that the appellant-landlady purchased House
No. 1/2, Street No. 6, Parsi Mohallah, Indore (‘the said building’) from
M/s. Pyare Mohan Khar, Hari Mohan Khar, Shayam Sunder Khar and Anil Khar
predecessors-in-title of the appellant by a registered sale deed dated
26/9/1991 for a consideration of Rs. 1,70,000/-.
At the time of purchase
of the said building, the respondent-tenant was occupying one room (‘suit
premises’) situated on the rear side of the said building as tenant. The
respondent was informed by the predecessors-in-title of the appellant that
the appellant is the new landlady of the said building and he should pay
the rent to her.
The respondent agreed to pay the rent but failed to pay
it. Failure of the respondent to pay the rent resulted in a notice being
sent by the appellant to him on 23/11/2002, but despite the notice the
respondent did not pay the rent.
4. On 06/1/2003, the appellant filed a suit for eviction of the
respondent under the M.P. Accommodation Control Act, 1961 (‘the M.P. Act’)
on grounds of non-payment of rent, denial of the appellant’s title by the
respondent, bona fide need for residential purpose and reconstruction of
the said building as it had become unsafe for human habitation. It was
specifically averred in the plaint that the appellant had purchased the
said building vide a registered document on 26/9/1991.
5. The respondent contested the said suit and filed a written statement
denying the title of the appellant as well as the grounds on which his
eviction from the suit premises was sought.
The respondent denied that
there was any attornement between the parties and that there was a landlord-
tenant relationship between him and the appellant. He claimed to be tenant
of the earlier landlord Shri Khar. He contended that he had never paid any
rent to the appellant. He denied the genuineness of the registered sale
deed dated 26/9/1991.
6. The trial court decreed the suit under Section 12(1)(c) of the M.P.
Act. The suit was dismissed so far as the other grounds are concerned.
The trial court’s judgment was confirmed by the first appellate court. The
High Court by the impugned order set aside the eviction decree passed by
the courts below holding that in the facts of the case no decree under
Section 12 (1) (c) of the M.P. Act could be passed.
The controversy,
therefore, revolves around Section 12(1)(c) of the M.P. Act in the context
of the facts of this case.
7. Shri Ardhendumauli Kumar Prasad, learned counsel for the appellant,
submitted that both the courts having concurrently found that the landlord
was entitled to a decree of eviction under Section 12(1)(c) of the M.P. Act
and since there was no perversity attached to the said finding, the High
Court ought not to have interfered with it while dealing with a second
appeal, particularly, when there was no substantial question of law
involved in the matter. In this connection, he relied on Deep Chandra
Juneja v. Lajwanti Kathuria (dead) through LRs.[1], Yash Pal v. Ram Lal
& Ors.[2] and Firojuddin & Anr. v. Babu Singh[3].
Mr. Prasad submitted
that it is clearly established from the evidence on record that the
respondent had denied the title of the appellant and, therefore, the case
clearly falls within the ambit of Section 12(1)(c) of the M.P. Act. The
eviction decree was, therefore, correctly passed by the trial court and
confirmed by the first appellate court. In this connection he relied on
Devasahyam v. P. Savithramma[4], State of Andgra Pradesh & Ors. v. D.
Raghukul Pershad(dead) by LRs.& Ors.[5] and Bhogadi Kannababu & Ors. v.
Vuggina Pydamma & Ors.[6]. Counsel submitted that in the circumstances the
impugned order be set aside.
8. Shri Amit Pawan, learned counsel for the respondent, on the other
hand submitted that attornment of tenancy to the appellant is not proved.
Counsel submitted that the respondent had no knowledge about the sale
transaction that allegedly took place between the appellant and Shri Khar,
under which the appellant is said to have purchased the suit premises.
This is a case of derivative title which the tenant can deny if he had no
knowledge of the sale transaction. Counsel submitted that the trial court
and lower appellate court ignored this vital legal position and, therefore,
the High Court rightly set aside the eviction decree. Counsel relied on
Mohd. Nooman & Ors. v. Mohd. Jabed Alam & Ors.[7] in support of his
submission that the issue regarding title can be decided in an eviction
suit and, therefore, it was correctly raised by the respondent.
9. It is well settled by a long line of judgments of this Court that the
High Court should not interfere with a concurrent finding of fact unless it
is perverse. (See: Deep Chandra Juneja, Yash Pal & Firojuddin).
In this
case, for the reasons which we shall soon record, we are unable to find any
such perversity in the concurrent finding of fact returned by the courts
below warranting the High Court’s interference.
10. The trial court passed the decree under Section 12 (1)(c) of the M.P.
Act on the ground that the respondent-tenant denied the title of the
appellant-landlady.
It was confirmed by the first appellate court. It is,
therefore, necessary to reproduce Section 12(1) (c) of the M.P. Act. It
reads as under:
“12. Restriction on eviction of tenants.—
(1) Notwithstanding
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—
(a) xxx
(b) xxx
(c) that the tenant or any person residing with him has created
nuisance or has done any act which is inconsistent with the purpose
for which he was admitted to the tenancy of the accommodation, or
which is likely to affect adversely and substantially the interest
of the landlord therein:
Provided that the use by a tenant of a portion of the accommodation
as his office shall not be deemed to be an act inconsistent with
the purpose for which he was admitted to the tenancy;”
11. The first question that arises is how denial of title falls within
the ambit of Section 12(1)(c) of the M.P. Act.
Under Section 111(g) of the
Transfer of Property Act, 1882, the lease is determined by forfeiture, if
the lessee denies the lessor’s title.
While dealing with eviction suit,
arising out of the M.P. Act, in Devasahayam, this Court has held that so
just is the above rule that in various rent control legislations such a
ground is recognized and incorporated as a ground for eviction of a tenant
either expressly or impliedly within the net of an act injurious to the
interest of the landlord. It is further held that denial of landlord’s
title or disclaimer of tenancy by tenant is an act which is likely to
affect adversely and substantially the interest of the landlord. It is,
therefore, covered by Section 12(1)(c) of the M.P. Act.
The following
observations of this Court in Devasahayam are relevant:
“27. In Sheela v. Prahlad Rai Prem Prakash[8] whereupon Mr. Nageswara
Rao placed strong reliance, Lahoti, J., as the learned Chief Justice then
was, while construing the provisions of clause (c) of sub-section (1) of
Section 12 of the M.P. Accommodation Control Act, 1961 observed:
13. The law as to tenancy being determined by forfeiture by
denial of the lessor’s title or disclaimer of the tenancy has
been adopted in India from the law of England where it
originated as a principle in consonance with justice, equity and
good conscience. On enactment of the Transfer of Property Act,
1882, the same was incorporated into clause (g) of Section 111.
So just is the rule that it has been held applicable even in the
areas where the Transfer of Property Act does not apply. (See:
Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur[9].)
The principle of determination of tenancy by forfeiture
consequent upon denial of the lessor’s title may not be
applicable where rent control legislation intervenes and such
legislation while extending protection to tenants from eviction
does not recognise such denial or disclaimer as a ground for
termination of tenancy and eviction of tenant. However, in
various rent control legislations such a ground is recognised
and incorporated as a ground for eviction of tenant either
expressly or impliedly by bringing it within the net of an act
injurious to the interest of the landlord on account of its
mischievous content to prejudice adversely and substantially the
interest of the landlord.
… … … …
… … … …
17. In our opinion, denial of landlord’s title or disclaimer of
tenancy by tenant is an act which is likely to affect adversely
and substantially the interest of the landlord and hence is a
ground for eviction of tenant within the meaning of clause (c)
of sub-section (1) of Section 12 of the M.P. Accommodation
Control Act, 1961. To amount to such denial or disclaimer, as
would entail forfeiture of tenancy rights and incur the
liability to be evicted, the tenant should have renounced his
character as tenant and in clear and unequivocal terms set up
title of the landlord in himself or in a third party. A tenant
bona fide calling upon the landlord to prove his ownership or
putting the landlord to proof of his title so as to protect
himself (i.e. the tenant) or to earn a protection made available
to him by the rent control law but without disowning his
character of possession over the tenancy premises as tenant
cannot be said to have denied the title of landlord or
disclaimed the tenancy. Such an act of the tenant does not
attract applicability of Section 12(1)(c) abovesaid. It is the
intention of the tenant, as culled out from the nature of the
plea raised by him, which is determinative of its
vulnerability.”
12. Having ascertained the legal position we will now state why we feel
that the High Court is not right in disturbing the concurrent finding of
fact that the respondent-tenant denied the title of the appellant-landlady.
13. There is a specific reference to the registered document under which
the appellant purchased the suit building from the earlier landlord in the
plaint. Yet, in the written statement the respondent denied the title of
the appellant. We notice that there are several documents on record
relating to the ownership of the appellant, apart from the registered sale
deed, such as municipal tax receipts, ration card etc. Yet, the respondent
refused to acknowledge the appellant’s title. He denied it in his
evidence. This is not a simple case of denial of derivative title by a
person who did not know about the purchase of the building by the landlord.
Even after going through the relevant documents relating to the
appellant’s title the respondent feigned ignorance about it.
The High
Court has accepted that in his cross-examination the respondent has stated
that he was not accepting the appellant as his landlady. The High Court
has, however, gone on to say that by this piece of evidence no decree of
eviction can be passed against the respondent under Section 12(1)(c) of the
M.P. Act because the respondent will have no occasion to establish in what
circumstances he denied the title of the appellant. The High Court has
further held that the respondent was within permissible limit in asking the
appellant to produce documentary evidence about his title as a landlord.
The High Court, in our opinion, fell into a grave error in drawing such a
conclusion. Even denial of a landlord’s title in the written statement can
provide a ground for eviction of a tenant.
It is also settled position in
law that it is not necessary that the denial of title by the landlord
should be anterior to the institution of eviction proceedings. This is so
stated by this Court in Majati Subbarao v. P.V.K. Krishnarao(deceased) by
LRs.[10].
14. The High Court has expressed that the respondent was justified in
asking the appellant to produce the documents. Implicit in this
observation is the High Court’s view that the respondent could have in an
eviction suit got the title of the appellant finally adjudicated upon.
There is a fallacy in this reasoning. In eviction proceedings the question
of title to the properties in question may be incidentally gone into, but
cannot be decided finally. Similar question fell for consideration of this
Court in Bhagadi Kannabalu. In that case it was argued that the landlady
was not entitled to inherit the properties in question and hence could not
maintain the application for eviction on the ground of default and sub-
letting under the A.P. Tenancy Act. This Court referred to its decision in
Tej Bhan Madan v. II Additional District Judge and Ors.[11] in which it
was held that a tenant was precluded from denying the title of the landlady
on the general principle of estoppel between landlord and tenant and that
this principle, in its basic foundations, means no more than that under
certain circumstances law considers it unjust to allow a person to
approbate and reprobate. Section 116 of the Evidence Act is clearly
applicable to such a situation. This Court held that even if the landlady
was not entitled to inherit the properties in question, she could still
maintain the application for eviction and the finding of fact recorded by
the courts below in favour of the landlady was not liable to be disturbed.
The position on law was stated by this Court as under:
“In this connection, we may also point out that in an eviction
petition filed on the ground of sub-letting and default, the
court needs to decide whether relationship of landlord and
tenant exists and not the question of title to the properties in
question, which may be incidentally gone into, but cannot be
decided finally in the eviction proceeding.”
15. Reliance placed by learned counsel for the respondent on Mohd. Nooman
is misplaced.
In that case, the landlord had filed an eviction suit
described as Title Suit No.36 of 1973 to evict the tenant.
The trial court
held that the relationship of landlord and tenant had not been proved and
since the tenant had raised the question of title the proper course would
be to dismiss the suit and not to convert it into a declaratory suit
because the suit was neither for declaration of title nor had the plaintiff
paid ad valorem court fee.
The trial court dismissed the suit as there was
no landlord and tenant relationship, but, upheld the plaintiff’s claim of
title. In the appeal, the first appellate court observed that by filing a
suit for eviction and paying court fee on twelve months alleged rent, the
plaintiff had adopted a tricky way of getting the title decided. The
plaintiff, then, filed a suit on title. The trial court decreed the suit.
The first appellate court allowed the appeal and dismissed the suit. In
the second appeal before the High Court the question was whether the
judgment and decree regarding title passed in the earlier suit shall
operate as res judicata between the parties on the question of title.
The
High Court observed that pleas taken by both parties regarding title in
both the title suits are the same and answered the question in affirmative.
This Court endorsed the High Court’s view and held that the issue of title
was directly and substantially an issue between the parties in the earlier
eviction suit, hence, the High Court was right in holding that the finding
of title recorded in the earlier suit would operate as res judicata in the
subsequent suit. This view was expressly restricted by this Court to the
facts before it. This Court clarified that ordinarily it is true that in a
suit for eviction even if the court goes into the question of title it
examines the issue in an ancillary manner and in such cases (which
constitute a very large majority) any observation or finding on the
question of title would certainly not be binding in any subsequent suit on
the dispute of title.
This Court further clarified that the case with
which it was dealing fell in an exceptional category of very limited number
of cases.
Thus, in our opinion, no parallel can be drawn from Mohd.
Nooman. In that case issue of title was framed. In the instant case
issue of title was not even framed. Mohd. Nooman arose out of exceptional
facts and must be restricted to those facts.
16. In view of the above, we are of the opinion that the High Court was
wrong in setting aside the concurrent finding of fact recorded by the
courts below that the respondent had denied the title of the appellant. We
are of the view that the present case is covered by Section 12(1)(c) of the
M.P. Act. It is, therefore, necessary to restore the decree of eviction.
In the circumstances, we allow the appeal. The impugned judgment of the
High Court is set aside and eviction decree passed by the trial court and
confirmed by the first appellate court under Section 12(1)(c) of the M.P.
Act is restored.
17. The appeal is disposed of in the afore-stated terms.
………………………………………J.
(Ranjana Prakash Desai)
………………………………………J.
(J. Chelameswar)
New Delhi,
January 7, 2014.
ITEM NO.1A COURT NO.12 SECTION IVA
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.106 of 2014
arising out of
Petition(s) for Special Leave to Appeal (C) No.5126/2011
(From the judgement and order dated 03/08/2010 in SA No.756/2004 of The
HIGH COURT OF M.P AT INDORE)
KESHAR BAI Petitioner(s)
VERSUS
CHHUNULAL Respondent(s)
Date: 07/01/2014 This Petition was called on for
pronouncement of judgment today.
For Petitioner(s) Mr. Ardhendumauli Kumar Prasad, Adv.
Mr. A. Shukla, Adv.
Mr. Nirnimesh Dube,Adv.
For Respondent(s) Mr. Amit Pawan,Adv.
Hon'ble Mrs. Justice Ranjana Prakash Desai pronounced the
reportable judgment of the Bench comprising Her Ladyship and Hon'ble
Mr. Justice J. Chelameswar.
The appeal is disposed of in terms of the signed reportable
judgment.
[RAJNI MUKHI] [USHA SHARMA]
SR. P.A. COURT MASTER
(Signed reportable Judgment is placed on the file)
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[1] (2008) 8 SCC 497
[2] (2005) 12 SCC 239
[3] (2012) 3 SCC 319
[4] (2005) 7 SCC 653
[5] (2012) 8 SCC 584
[6] (2006) 5 SCC 532
[7] (2010) 9 SCC 560
[8] (2002) 3 SCC 375
[9] AIR 1965 SC 1923
[10] (1989) 4 SCC 732
[11] (1988) 3 SCC 137
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