1.
Estoppel of the tenant under Section116
of the Indian EvidenceAct,
1872 17.1 Under Section116
of the Indian EvidenceAct,
the Lessee is estopped from denying the title of the transferee
landlord. Section116
of the Indian EvidenceAct
provides that no tenant of immovable property shall, during the
continuance of the tenancy, be permitted to deny the title of the
landlord meaning thereby that so long as the tenant has not
surrendered the possession, he cannot dispute the title of the
landlord. Howsoever, defective the title of the landlord may be, a
tenant is not permitted to dispute the same unless he has surrendered
the possession of his landlord. It is based upon the salutary
principle of law and justice that a tenant who could not have got the
possession but for his contract
of tenancy admitting the right of the landlord, cannot be allowed to
dispute the title of his landlord after taking undue advantage of the
possession that he got from the landlord. Of course, he can deny his
title after he gives up the possession having thus restored the
status quo ante.
"a.
The rule of estoppel embodied under Section
116
of the Evidence
Act
is that, a tenant who has been let into possession cannot deny his
landlord's title, however defective it may be, so long as he has not
openly restored possession by surrender to his landlord..."
(Emphasis
supplied) 17.5 In Vashu Deo v. Balkishan, (2002) 1 SCR 171, the
Supreme Court summed up the law as to estoppel of tenant as under:
"b. ...Section
116
of the Evidence
Act,
which codifies the common law rule of estoppel between landlord and
tenant, provides 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. The
rule of estoppel so enacted
has three main features :
(i) the tenant is estopped from disputing
the title of his landlord over the tenancy premises at the beginning
of the tenancy;
(ii) such estoppel continues to operate so long as
the tenancy continues and unless the tenant has surrendered
possession to the landlord; and
(iii) Section
116
of the Evidence
Act
is not the whole law of estoppel between the landlord and tenant. The
principles emerging from Section
116
can be extended in their application and also suitably adapted to
suit the requirement of an individual case... the rule of estoppel
ceases to have applicability once the tenant has been evicted. His
obligation to restore possession to his landlord is fulfilled either
by actually
fulfilling the obligation or by proving his landlord‟s title having
been extinguished by a paramount title-holder..."
"c. ...Section
116
of the Evidence
Act
embodies therein a rule of estoppel. 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. This estoppel so long as it binds the tenant excludes the
tenant from raising a plea disputing the title of his landlord at the
commencement of the tenancy. It flows as a corollary therefrom that
the proof of landlord-tenant relationship tantamounts during the
continuance of tenancy to proof of ownership of landlord over the
tenancy premises at the beginning of the tenancy so far as the tenant
is concerned. It is significant to note that on the phraseology of
Section
116
of the Evidence
Act
the rule of estoppel applies so long as the tenancy is not terminated
and the rule estops the tenant from laying challenge to the ownership
of the landlord at the commencement of the tenancy. But the rule of
estoppel as incorporated in Section
116
is not exhaustive and it may be extended or suitably modified in its
application to other situations as well, retaining the basic feature
of the rule. Clause (g) of Section
111 of the Transfer of Property Act,
insofar as relevant for our purpose, provides that a lease of
immovable property determines by forfeiture in case the lessee
renounces his character
as such by setting up a title in a third person or by claiming title
in himself. This provision contemplates two fact
situations which entail the lessee having renounced his character
as such and they are:
(i) when the lessee sets up a title in a third
person, or
(ii) when he claims title in himself. In either case, the
tenant has disputed and denied the title of his landlord because a
title in third person or title in himself cannot co-exist with the
title in the landlord.‖
"14. Denial of landlord's title or
disclaimer of tenancy, is it an act
injurious to interest of landlord? How does this rule operate and
what makes it offensive?
Evans and Smith state in the Law of Landlord
and Tenant (4th Edn., 1993, at p.89) that it is an implied condition
of every lease, fixed-term or periodic and formal or informal, that
the tenant is not expressly or impliedly to deny the landlord's title
or prejudice it by any acts
which are inconsistent with the existence of a tenancy. Disclaimer of
the landlord's title is analogous to repudiation of a contract.
The rule is of feudal origin; the courts are not anxious to extend it
and so any breach of this condition must be clear and unambiguous.
Hill and Redman in Law of Landlord and Tenant (17th Edn., para 382,
at pp. 445-446) dealing with "acts
which prejudice lessor's title" state that there is implied in
every lease a condition that the lessee shall not do anything that
may prejudice the title of the lessor; and that if this is done the
lessor may re-enter for breach of this implied condition. Thus, it is
a cause of forfeiture if the lessee denies the title of the lessor by
alleging that the title of the landlord is in himself or another; or
if he assists a stranger to set up an adverse title or delivers the
premises to him in order to enable him to set up a title..."
Patna
High Court
Radha
Devi And Ors. vs Ajay Kumar Sinha
Equivalent
citations: 1998 (2) BLJR 1061
Author:
M Eqbal
Bench:
M Eqbal
JUDGMENT
M.Y. Eqbal, J.
1.
This Revision application has been filed by the defendants-tenants
under Section 14(8) of the Bihar Buildings (Lease, Rent &
Eviction) Control Act, 1982 (hereinafter referred to as 'the said
Act') against the judgment and decree dated 30.7.1997 passed by
Munsif, I, Begusarai in Title Suit No. 9 of 1992. By the said
judgment and decree, the aforesaid suit filed by the plaintiff has
been decreed on the ground of personal necessity.
2 .
The facts of the case are as follows. The plaintiff-opposite party
filed the aforesaid suit for eviction of the defendants from the suit
premises, which is a land and house comprised within the survey plot
No. 652 under Khata No. 152 situated at Begusarai. The plaintiff said
to have purchased the said plot along with other Khesra which is
compact block having residential house thereon. The plaintiff's case
is that the defendant is a tenant in respect of the house standing on
a portion of the aforesaid plot on monthly rent of Rs. 400/-. The
plaintiff several times demanded rent but the, defendant never paid
the same to the plaintiff. The plaintiff alleged that he requires the
suit premises for his own use and occupation as he wants to start
this own business of Hardware in the suit premises. The defendant
contested the suit by filing written statement denying and disputing
the relationship of landlord and tenant. The defendants have asserted
that the land in dispute was recorded as Gairmazrua Khas land in the
Cadesteral Survey Record of rights, but the remark column of
Khatiyan, Makan and Sahan in possession of Mosst. Chhediya was
recorded who was coming in peaceful possession of the said plot and
said Mosst. Chhediya in the year 1910 had adopted Bachchu Mahto the
grand father of these defendants as son. Mosst. Chhediya died in the
year l923 and since then the grand-father of these defendants and
after his death these defendants are residing in the suit premises as
their own property and they have perfected their right, title and
interest over the suit property by remaining in continuous possession
since long. The defendants further asserted that neither the
plaintiff nor his vendor have any concern with the suit premises and
they have no right, title and interest over the same. Defendant's
further case is that they have filed Title Suit No. 6 of 1988 against
the vendor of the plaintiff and the same is
pending
in appeal. The suit, therefore, according to the defendants, is
barred by limitation and also barred under Section 34 of the Specific
Relief Act.
3.
On the basis of the pleadings of the parties, the Court below framed
as many as following eight issues:
1.
Is the suit as framed maintainable?
2.
Whether the plaintiff has valid cause of action or right to sue?
3.
Is the suit barred by law of Limitation?
4.
Whether the plaintiff is landlord and the defendants are tenants of
the suit premises?
5.
Whether the plaintiff has personal necessity of the suit premises?
6.
Whether the partial eviction of the suit premises is sustainable?
7.
Whether the plaintiff is entitled to get a decree of eviction as
prayed for?
8.
To what other relief or reliefs the plaintiff is entitled to?
Issue
Nos. 4, 5, 6 and 7 have been taken up together by the Court below and
after considering the evidence, both oral and documentary, it came to
a finding that the plaintiff successfully proved his right and title
over the suit premises and further held that the plaintiff has been
able to prove his personal necessity. Accordingly, the suit was
decreed. Hence this revision application.
4.
I have heard Mr. Rajiv Ranjan Sinha, learned Counsel appearing on
behalf of the petitioners and Mr. Shreenath Singh, Senior Counsel for
the opposite party-landlord.
5.
Learned Counsel for the petitioners assailed the impugned judgment as
being illegal and wholly without jurisdiction. Learned Counsel
firstly submitted that the Court below committed serious illegality
in passing the impugned judgment and decree by following summary
procedure provided under Section 14 of the said Act and the procedure
provided under the Small Causes Court Act.
Learned
Counsel then submitted that the impugned judgment and decree could
not have been passed on the basis of prima facie finding of title in
a suit for eviction filed on the ground of personal necessity.
Learned Counsel for the petitioners lastly submitted that admittedly
when the dispute with regard
to title is pending adjudication the Court below ought to have stayed
the disposal of the Eviction Suit till the final disposal of the
title suit which is pending in appellate stage. In this connection,
learned Counsel for the petitioners relied upon the decision of this
Court in the case of Raj Kumar Prasad v. Smt. Kaushalya Devi reported
in 1997 (2) PLJR 649. On the other hand, Mr. Shreenath Singh, learned
Sr. Counsel appearing on behalf of the opposite party submitted that
when the suit for declaration of title filed by the
defendants-petitioners has been dismissed by the judgment and decree
passed by the Civil Court of competent jurisdiction, then no
illegality has been committed by the Court below in decreeing the
eviction suit on the basis of title of the plaintiff.
Learned
Counsel then submitted that even if the judgment of the trial Court
with regard to title has not attained finality because of the
pendency of the appeal, the trial of the eviction suit could not be
deferred and the decree for eviction can well be passed against the
tenant. In this connection, learned Counsel relied upon a decision of
the case of Maheshwar Pd. Sharma v. Shobha Devi reported in 1998 (1)
BLJR 423.
6.
Before appreciating the rival contentions made by the learned
Counsels for the parties, it would be useful to first consider the
admitted facts of the case. In the year 1988 the
defendant-petitioners filed Title Suit No. 6 of 1988 for declaration
of right, title and interest over some of the plots including the
plot in question and for appropriate order for injunction restraining
the defendants from interfering with their possession over the suit
property. While the title suit was pending, the suit premises was
sold by the defendant of that suit in favour of the
plaintiff-opposite party of this, suit. After purchasing the suit
premises the plaintiff filed the instant suit for eviction of the
defendant-petitioners from the suit premises on the ground of
personal necessity. As stated above, the defendants-petitioners
contested the suit by denying the relationship of landlord and tenant
and they claimed title over the suit premises.
7.
From perusal of the judgment of eviction suit, it appears that
although the Court below frame one issue whether there was
relationship of landlord and tenant between the parties, but there is
no positive of finding on that issue. Before I proceed to examine and
analyse the impugned judgment passed by the Court below, I would like
to refer three important paragraphs of the judgment i.e. paragraphs
18, 19 and 20 on the basis of which the suit for eviction was decreed
by the Court below:
(18)
There is no any dispute about possession of defendant. The question
is whether they are in possession over disputed house as a owner or a
tenant?
(19)
The oral and documentary evidence adduced on behalf of the plaintiff
is more reliable. Ext. 7 and 8 shows that defendant's case for
declaration of ownership and title and dismissed. The defendant has
failed to prove his ownership over disputed house. No case of adverse
possession have been made out in the W.S. so the defendant shall be
deemed to be the tenant of the house premises. The defendant Counsel
drawn my attention towards Ext. A and A/1 which are Kirayanama
executed by Arbind Kumar Das and Nand Kishore Singh in favour of
defendant Shiwal Mahto. The defendant is himself a tenant of the
disputed house. So these Ext. A and A/1 will to help him. Ext. A and
A/1 were prepared during the pendency of this case so no importance
can be given on those document.
(20)
Thus on the above discussion, I come to this conclusion that the
plaintiff has successfully proved his right and title over dispute
house and defendant has failed to prove his ownership over the
disputed house.
8.
From perusal of the finding arrived at by the Court below, it is
manifest that the relationship of landlord and tenant has not been
proved. Rather on the basis of the evidence of title, the Court below
held that the defendant shall be deemed to be a tenant of the suit
premises. The question, therefore, falls for consideration is whether
such decree for eviction passed against a person on the basis of
title and on the ground of personal necessity shall be deemed to be a
decree or order within the meaning of Section 14(7) of the said Act
so as to take away the right of appeal of the tenant under the
general law. The other question which falls for consideration is as
to whether a disputed question of title can be decided by following
the summary procedure provided under Section 14 of the said Act and a
decree would follow even if relationship of landlord and tenant is
not established.
9.
The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 has
been enacted to regulate the letting of buildings and the rent of
such buildings and to prevent, unreasonable eviction of tenants
therefrom in the State of Bihar. Under the Act, a person, who is a
landlord within the meaning of Section 2(f) is entitled to maintain a
suit for eviction irrespective of the fact whether or not that person
is owner of the suit premises. According to the definition the
landlord need not necessarily be land owner but a person who is
entitled to receive the rent of a building whether on his own account
or on behalf of the another, or on account or on behalf of for the
benefit of himself and others or as an agent, trustee, executor,
administrator, receiver, guardian is also a landlord. A person is
entitled to receive rent, such as an agent, trustee, executor, and
administrator etc. so also landlord. Section 11 of the said Act
provides protection to a tenant from eviction. The said section
enables the landlord to get an eviction decree if the conditions
mentioned in the section are satisfied. In other words, where there
is relationship of landlord and tenant, order of eviction be passed
on the existence of any one of the grounds mentioned in Section 11 of
the said Act. It is, therefore, clear that proof of relationship of
landlord and tenant gives right to a landlord to get an order of
eviction under the provisions of the aforesaid Act. In this
connection reference may be made to a Bench decision of this Court in
the case of Champa Lal Sharma v. Smt. Sunita Maitra, reported in
(1990) 1 BLJR 268. His Lordship held as under:
It
is also well settled that one such relationship is admitted or
established, tenant would be estopped and precluded from challenging
the title of the landlord and if he does so, under the general rule,
make himself liable for eviction on that ground.
It,
therefore, logically follows that a finding of existence of
relationship of landlord and tenant is a sine quo non for passing a
decree for eviction against a tenant except in a case, as mentioned
hereinbefore the plaintiff on payment of ad valurum Court fee may
obtain a decree for eviction on the basis of his general title.
Now,
I will refer to Section 14 of the said Act which has been introduced
in the year 1982 in the Rent Control Legislation of the State of
Bihar. Section 14 reads as under:
Special
Procedure for disposal of cases for eviction on the ground of bona
fide requirement.--(1)
Every
suit by a landlord for the recovery of possession of any premises on
the ground specified in Clause (c) or (e) of Sub-section (1) of
Section 11 shall be dealt with in accordance with the procedure
specified in this Section.
(2)
The Court shall issue summons in the prescribed form in every suit
referred in Sub-section (1) without delay.
(3)(i)
The Court shall, in addition, to, and simultaneously with, the issue
of summons for service on the tenant or tenants, also direct the
summons to be served by registered post with acknowledgment due,
addressed to the tenant or his agent empowered to accept the service
at the place where the tenant or his
agent actually and voluntarily resides or carries on business or
personally works for gain and may, if the circumstances of the case
so require also direct the publication of the summons in the official
Gazette or in newspapers circulating in the locality, in which the
tenant is last known to have resided or carried on business or
personally worked for gain.
(ii)
when an acknowledgement purporting to be signed by the tenant or his
agent is received back with an endorsement purporting to have been
made by a postal employee to the effect that the tenant or his agent
has refused to take delivery of the registered article, the Court may
declare that there has been a valid service of summons.
(4)
The tenant on whom summons is duly served (whether by ordinary mail
or by registered post) shall not contest the prayer for eviction from
the premises unless he filed an affidavit stating the ground on which
he seeks to make such contest and obtains leave from the Court as
hereinafter provided; and in default of the appearance in pursuance
of the summons or his obtaining such leave the statement made by the
landlord in the suit for eviction shall be deemed to be admitted by
the tenant and the landlord shall be entitled to an order for
eviction on the ground aforesaid.
(5)
The Court shall give to the tenant leave to contest the suit if the
affidavit filed by the tenant disclose such facts as would
disentitled the landlord from obtaining an order of eviction on the.
grounds specified in Clauses (c) and (e) of Sub-section (1) of
Section 11.
(6)
When leave is granted to the tenant to contest the suit, the latter
may, within fifteen days from the date of the order, pray after
filing the requisite Court fee, required for a written statement that
the affidavit may be treated as the written statement or if he
chooses to file a separate written statement he may do so within
fifteen days of the grant of leave to contest the suit and if does
not file the written statement within the period he shall not be
allowed to do so later. The Court shall thereafter commence the
hearing of the suit as early as practicable.
(7)
Notwithstanding anything contained in the Code of Civil Procedure,
1908 (V of 1908) or any other law, the Court while hearing a suit
under this Section shall follow the practice and procedure of a Court
of Small Causes including the recording of evidence.
(8)
No appeal or second appeal shall lie against an order for the
recovery of possession of any premises made in accordance with the
procedure specified in this section:
Provided
that on an application being made within sixty days of the date of
the order of eviction, the High Court may for the purpose of
satisfying itself that an order under the section is according to
law, call for the records of the case and pass such order in respect
thereto as it thinks fit.
(9)
Where no application has been made to the High Court in revision as
laid down in Sub-section (8) above, the Court, which passed the order
for eviction may exercise the power of review in accordance with the
provision of Order XL VII of the First Schedule to the Code of Civil
Procedure, 1908 (V of 1908):
Provided
that no such review be made unless an application is filed for the
same within ninety days of the date of order of eviction.
From
bare perusal of the aforesaid provision, it is clear that the
intention of the Legislation for making this provision is for summary
and quick disposal of eviction suit which go on linger for decades.
The Legislature has taken notice of the hardship of the landlord
seeking recovery of possession of a building premises for his
personal occupation and, therefore, speedy machinery and procedure
has been prescribed for the disposal of the suit. It is, therefore,
clear that if a landlord wants a decree for eviction on the ground of
bona fide personal necessity or expiry of the period of lease, then
he may institute a suit which shall be decided by following the said
procedure provided under Section 14 of the Act. At this stage I must
reiterate that in any case proof of relationship of landlord and
tenant is essential conditions for passing a decree for eviction
after following the procedure provided under Section 14 of the said
Act. It, therefore, follows that if a Court passed a decree for
eviction in favour of the landlord by following summary procedure and
on proof of existence of relationship of landlord and tenant and one
of the two grounds provided under Sections 11(1)(c) and (e) of the
Act then the tenant has no right of appeal but he can challenge the
said eviction order by filing revision application before a High
Court as contemplated under Section 14(8) of the Act.
A
question then arose as to what would be the position if in a suit for
eviction the relationship of landlord and tenant is not established.
This question was considered more than two decades earlier by this
Court in the case of Ram Chand Sah v. Chotan Sah (1971) v. BLJR 186.
His Lordship, U.N.Untwalia, J. (as he then was) has observed:
It
would appear from the facts stated in the judgment of the Court below
that the respondent had raised some dispute with regard to title in
the year 1948.
The
present Title Suit No. 184 was filed in the year 1959. It is,
therefore, just and proper that the question of title on which the
parties have adduced evidence at the trial should be decided in the
very litigation. If the plaintiffs are driven to another litigation,
obviously, the suit may be barred. If they are able to establish
their title in this litigation applying the principle of law as
enunciated in the cases referred to above. I see no reason to deny
the equitable relief to the plaintiffs. I have not examined myself
the merit of their case in regard to the question of their title. Any
observation of mine, should not be misunderstood as expressing any
opinion one way or the other in that regard.
Subsequently,
in a series of decisions the law has been settled that in a suit for
eviction if the relationship of landlord and tenant is not
established, then the Court can give equitable relief of eviction on
proof of title. But in all those cases the summary procedure provided
under Section 14 of the Act was not followed rather decree for
eviction was sought for on the grounds mentioned in Section 11 of the
Act and the Court proceeded by following the procedure provided under
the Code of Civil Procedure. In such cases a tenant against whom
decree for eviction on proof of title was passed have a right to
prefer first appeal and second appeal.
10.
The question, therefore, arises as to whether the defendant-tenant
have a right to challenge the eviction order by filing a regular
appeal instead of revision under Section 14(8) of the Act, where the
Court after following the summary procedure gives equitable relief on
proof of title of the plaintiff-landlord. The answer, in my opinion,
should be in affirmative. The special procedure provided under
Section 14 also does not contemplated passing of eviction order on
the basis of title.
In
such a case where a procedure provided under Section 14 of the Act
has been followed, the right of appeal can be taken away only when an
order of eviction is passed on proof of relationship of landlord and
tenant and on the grounds mentioned in Sections 11(1)(c) and (e) of
the Act. I have no doubt in my mind in holding that in such a suit
where summary procedure provided under Section 14 has been followed
and an eviction order is passed by the Court below without positive
finding of relationship of landlord and tenant rather on the basis of
prima facie proof of title then the right of appeal to the
defendant-tenant cannot be (sic) by virtue of Section 14(8) of the
Act. Against such an eviction decree the defendant has a right of
appeal and second appeal under the provisions of the Code of Civil
Procedure.
11.
Coming back to the instant case, as noticed above the Court below, in
absence of positive evidence of relationship of landlord and tenant,
has gone into the disputed question of title and gave a finding that
the plaintiff has proved his right, title over the suit property so
the assesses shall be deemed to be the tenant of the suit premises.
The Court below, therefore, passed the impugned judgment and decree
in favour of the plaintiff holding that the plaintiff has personal
necessity. In my opinion, the defendant-petitioner before coming to
this Court, rightly filed Regular first appeal before the District
Judge, Begusarai being Title Appeal No. 28 of 1997. The lower
appellate Court, in the admission stage dismissed the appeal by order
dated 21.2.1998 holding that no appeal lay in view of Section 14(8)
of the Act. In my opinion, the learned District Judge has committed
serious illegality in not entertaining the appeal and the said order
is wholly without jurisdiction. I am, therefore, of the opinion, that
for the ends of justice and for avoiding filing of fresh appeal the
defendant-petitioner should pursue the appeal being Title Appeal No.
28 of 1997 which was dismissed by the learned District Judge as not
maintainable.
12.
Having regard to the facts and circumstances of the case and the
discussions made above, this civil revision application is allowed
and disposed of by setting aside the order dated 21.2.1998 passed by
the District Judge, Begusarai. The District Judge, Begusarai is
directed to entertain and admit the aforementioned appeal and dispose
of the same in accordance with law.
Dated
13
May, 1998
