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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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

Ambika Savaria & Ors.           ….Appellants

Versus

Sanjay Sharma & Ors.  …. Respondents [[

JUDGMENT

[

Uday Umesh Lalit,  J.

1. Leave granted.  This  appeal  challenges  correctness  of  the  judgment

and order  dated  20.10.2010 passed by the  High Court  of  Chhattisgarh  at

Bilaspur  allowing  Second  Appeal  No.242  of  1989  and  setting  aside

concurrent decisions of the Trial Court and Lower Appellate Court granting

decree of eviction in favour of the appellants.

2. Civil Suit No.67-A of 1979 was filed by Vasudev Shyamji and Govind

Shyamji,  the  predecessors  of  the  appellants  seeking  eviction  of  one

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Bhanaram Sharma,  predecessor  of  the respondents  from suit  house  which

was described in  the plaint  as  the front  portion of  house No.189/1,  Ward

No.18,  Raigarh.  The eviction was sought  on grounds including bona fide

need.  In paragraph 2 of his written statement Bhanaram stated, “……..It is

specifically denied that the plaintiffs are owners of house No.189/1 in Ward

No.18 of Raigarh Town. This being a suit for eviction of a tenant the question

of ownership is not relevant to the suit.”

3. Thus though it was denied that the plaintiffs were owners of the suit

house,  in  the  very  next  sentence  defendant  Bhanaram  asserted  that  the

question of ownership was not relevant in the instant suit.  Bhanaram entered

the witness box and in his cross-examination admitted that the lease from

Nazul Department stood in the name of plaintiffs and that the witness himself

had produced the same in some other proceedings. It was further accepted

that he had paid rent by money orders sent in the name of Shyamji Gangji,

father of the plaintiffs.

4. The aforesaid suit was re-numbered as Civil Suit No.417A of 1986.

After considering the evidence on record the Trial Court by its judgment and

order dated 21.01.1987 decreed the suit principally on the ground that the

plaintiffs required the suit house for reconstruction and for bona fide need.

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5. The matter having been carried in appeal by Bhanaram, the Lower

Appellate Court also considered the question regarding ownership of the suit

house. While considering the evidence of Bhanaram, it observed, “……This

witness has also admitted that  lease from nazul of  this property was also

accepted in the name of plaintiffs and he himself has produced that lease on

his behalf in other civil court.”   The Lower Appellate Court affirmed the

view taken by the Trial Court and dismissed Civil Appeal No.3A/87 vide its

judgment and order dated 20.03.1989.

6. The heirs of Bhanaram namely the respondents being aggrieved, filed

Second Appeal No.242 of 1989 in the High Court of Chhattisgarh at Bilaspur.

This appeal came to be allowed by the High Court vide judgment and order

dated 20.10.2010.  It was observed by the High Court that for a plaintiff to

succeed in seeking eviction of tenant on the ground of bona fide need under

Section  12(1)(e)  of  the  Chhatisgarh  Accommodation  Control  Act,  1961

(hereinafter referred to as the “Act”) it was incumbent  to establish that he

was owner of the accommodation in question.  After considering the evidence

on record, particularly that of defendant  Bhanaram it was observed:

“Evidence  of  this  witness,  pleadings  and  evidence  of defendant Bhanaram Sharma clearly reveal that father of Vasudev Shyamji i.e. Shyamji Gangji was landlord of the suit  accommodation,  but  was  not  owner  of  the  suit accommodation.   In  his  detailed  evidence,  Vasudev

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Shyamji  has  not  stated  anything  to  show that  how he became owner of the suit accommodation.”

According to the High Court, the fact that defendant Bhanaram used

to pay rent of the suit house to the father of the plaintiffs, was not sufficient

to  prove  ownership  over  the  suit  house  especially  when  ownership  was

under dispute and the plaintiffs had not adduced any evidence to prove the

issue of ownership.

7. The aforesaid judgment of the High Court is presently under appeal.

We heard  Mr.  Kamal  Mohan  Gupta,  learned  Advocate  in  support  of  the

quotation  and  Mr.  Ujjal  Banerjee,  learned  Advocate  for  the  respondents.

Relying on the decision of this Court in  Anar Devi(Smt)  v. Nathu Ram1 it

was  submitted  by  Mr.  Gupta,  learned  Advocate  that  the  defendant  was

estopped from questioning the title of the plaintiffs and that the High Court

was in error in allowing the second appeal.  Mr. Banerjee, learned Advocate

supported the view taken by the High Court and submitted that no evidence

whatsoever  was  led  to  prove  ownership  of  the  suit  house  which  was

necessary in view of Section 12(1)(e) of the Act.  

1

 (1994) 4 SCC 250  

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8. The  relevant  provision,  namely,  Section  12(1)(e)  of  the  Act  is  as

under:

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

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

……………………………………………..”

9. In  Anar Devi’s  case  the provision which came up for consideration

was Section 23-A(b) of  M.P. Accommodation Control  Act which was  as

under:-

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

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(a)………..  

Explanation….

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

10. The relevant provision in the instant case, namely, Section 12(1)(e) of

the Act is pari materia  with Section 23-A(b) which was considered in Anar

Devi’s  case.  The expression, “if he is the owner thereof” is common and

identically placed.  Para 18 of the decision in Anar Devi’s case discloses that

the  respondent-tenant  had  acknowledged  the  ownership  of  the

accommodation as that of the appellant and had regarded her as the landlord

in his counter notice.    In the circumstances it was held that the respondent

was not  entitled to  deny the  title  of  the  appellant  to  the accommodation.

During the course of its judgment, this Court dealt with “tenant’s estoppel”

as statutorily recognized in Section 116 of the Evidence Act and observed as

under:-

“10. Since the doctrine of “tenant’s estoppel” could throw light on the question as to what can make a landlord to succeed in enforcing  his  right  to  recover  possession  of  accommodation from a tenant under clause (b) of Section 23-A of the Act,  it

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would be advantageous to refer to its  scope and applicability, before taking it up for our consideration.

11.“Doctrine  of  tenant’s  estoppel”  which  governs  the relationship of landlord and tenant is founded on a contract of tenancy entered into by them, is well settled. Jessel, M.R., who adverted  to  that  doctrine  in  Stringer’s  Estate,  Shaw v. Jones-Ford2 explains it thus:

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

12. Indeed, the said doctrine of tenant’s estoppel, finds statutory recognition in Section 116 of the Indian Evidence Act, 1872, for short  ‘the  Evidence  Act’,  in  that,  it  states  that  “no  tenant  of immovable  property, or  person  claiming  through  such  tenant, shall during the continuance of the tenancy, be permitted to deny that  the  landlord  of  such tenant  had,  at  the  beginning of  the tenancy, a title to such immovable property”.

13. This  Court  in  Sri  Ram Pasricha v.  Jagannath3,  has  also ruled  that  in  a  suit  for  eviction  by  landlord,  the  tenant  is estopped from questioning the title of the landlord because of

2

LR 6 Ch D 1:37 LT 233  3

(1976) 4 SCC 184

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Section  116  of  the  Act.  The  Judicial  Committee  in  Kumar Krishna Prasad Lal  Singha Deo v.  Baraboni  Coal  Concern Ltd.4, when had occasion to examine the contention based on the words ‘at the beginning of the tenancy’ in Section 116 of the Evidence Act, pronounced that they do not give a ground for a person already in possession of land becoming tenant of another, to  contend  that  there  is  no  estoppel  against  his  denying  his subsequent lessor’s title. Ever since, the accepted position is that Section  116  of  the  Evidence  Act  applies  and  estops  even  a person already in possession as tenant under one landlord from denying  the  title  of  his  subsequent  landlord  when  once  he acknowledges  him  as  his  landlord  by  attornment  or  conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the  owner  who  had  derived  title  from  the  former  landlord, cannot be permitted to deny the latter’s title, even when he is sought to be evicted by the latter on a permitted ground.

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

11. In  the  instant  case  though  defendant  Bhanaram  in  his  written

statement had denied ownership of the plaintiffs he went on to add, “This

being a suit for eviction of a tenant, the question of ownership is not relevant

to the suit”. In his cross-examination he clearly admitted that the lease from

Nazul Department stood in the name of the plaintiffs and that the witness

himself had produced that document in some other proceedings.  He had

4

AIR 1937 PC 251

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further admitted that he used to pay rent by money orders in the name of the

father of the plaintiffs.  On facts, it must be held that defendant Bhanaram

had without any doubt regarded the plaintiffs as landlords and owners of the

suit house.  This matter is thus fully covered by the decision of this Court in

Anar Devi’s case and it was not open to defendant Bhanaram to question the

ownership of the plaintiffs-landlords.

12. In the circumstances, the view taken by the High Court while setting

aside  the  concurrent  decisions  of  the  Courts  below  was  not  correct  and

justified.  We, therefore, allow this appeal. While setting aside the judgment

under  appeal,  we  restore  the  decisions  of  the  Trial  Court  and  the  Lower

Appellate Court passed in the instant case.

13. Since respondents are in occupation of the suit house for last more

than 40 years, we deem it appropriate to grant them time upto 31st August,

2017 to vacate and hand-over peaceful possession of the suit house to the

appellants subject to the respondents filing usual undertakings within four

weeks from the date of this judgment.  In case no such undertakings are filed

by each of the respondents within the time so stipulated, the appellants shall

be free to execute the decree for eviction of the suit house.

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

to costs.

………………………………J.   (C. Nagappan)

………………………………J. (Uday Umesh Lalit)  

New Delhi, August 09, 2016