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
