BISMILLAH BE (DEAD) BY LRS. Vs MAJEED SHAH
Bench: A.K. SIKRI,ABHAY MANOHAR SAPRE
Case number: C.A. No.-011865-011866 / 2016
Diary number: 13912 / 2010
Advocates: PRATIBHA JAIN Vs
ANOOP KR. SRIVASTAV
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.11865-66 OF 2016 (ARISING OUT OF SLP (C) Nos. 28516-28517 of 2010)
Bismillah Be (Dead) by L.Rs. …….Appellant(s)
VERSUS
Majeed Shah ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) These appeals are filed against the final
judgments and orders dated 27.11.2009 in Second
Appeal No. 1097 of 2007 and 15.01.2010 in Review
Petition No. 656 of 2009 passed by the High Court
of Judicature at Jabalpur, Madhya Pradesh
whereby the High Court dismissed second appeal
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and the review petition filed by the appellant herein.
3) In order to appreciate the short controversy
involved in these appeals, few relevant facts need
mention infra.
4) The appellant is the plaintiff (Landlord)
whereas the respondent is the defendant (Tenant).
5) One Rai Bahadur Motiram Mathuradas was
the original owner of the several houses bearing
nos. 58, 58-A, 58-B, 58-C, 58-D, 395, 397, 397-A,
398 to 403, 403-A to 403-D and servant quarter
Nos. 1-16 situated at Street Nos. 10 & 11, Sadar
Bazar Cantonment Jabalpur known as "Moti Bada"
later known as "Allaha Baux compound". Rai
Bahadur Motiram Mathuradas inducted respondent
as his tenant in House no. 402 (hereinafter referred
to as "the suit house") on monthly rent of Rs. 80/-.
6) Rai Bahadur Motiram Mathuradas was an
income-tax asseesee. He did not pay his taxes and
thus became the defaulter under the Income Tax
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Act, 1961 (for short "The Act”). The Income-Tax
Department, therefore, initiated tax recovery
proceedings.
7) Before the arrears could be paid, Rai Bahadur
Motiram died. His son - Kasturilal Mathuradas, who
inherited the properties of his late father, sought
permission from the Income-Tax Department to sell
Moti Bada property to enable him to clear the
arrears. The Department granted the permission to
Kasturilal.
8) Kasturilal then sold Moti Bada property
including suit house to one Vasant Kripalani. The
Income Tax Department issued the sale certificate
on 11.06.1974 (Ex P -4) in favour of the purchaser
pursuant thereto Kasturilal executed registered sale
deed dated 16.09.1974 (Ex -P-6) in favour of Vasant
Kripalani, who in turn, sold the said property same
day jointly to six persons viz., Gyarsi Bai Chouksey,
Lalta Bai Chouksey, Bhama Bai Chouksey, Bismilla
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Be (appellant herein), Idda Bai and Mohd. Jayed by
executing another registered deed of sale dated
16.09.1974 (Annexure- P-7). Thereafter, these six
persons, by registered partition deed dated
14.03.1984 (Annexure-8), partitioned the said
property amongst them. So far as the suit house is
concerned, it fell to the share of the appellant
(plaintiff). This is how, the appellant became the
sole owner of the suit house.
9) The appellant then on 08.05.2003 served legal
notice (Annexure-P-9) to the respondent terminating
his tenancy. The appellant called upon the
respondent to pay the arrears of rent at the rate of
Rs. 80/- p.m. for a period of three years preceding
the date of notice and also called upon the
respondent to vacate the suit house on the ground
that he made unauthorized construction in the suit
house without seeking the permission of the
appellant.
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10) The respondent replied to the notice (Annexure
P-10) wherein he admitted that he is in possession
of the suit house for the last 50 years. He also
admitted that the suit house was originally belonged
to Seth Motiram and that he was the tenant of Seth
Motiram. He also said that on Seth Motiram's death,
the Cantonment Board acquired the suit house
because he did not leave any successor to inherit
his property. This is how the respondent denied
existence of any relationship of landlord and tenant
with the appellant in relation to the suit house and
challenged his derivative title.
11) The appellant then filed a civil suit against the
respondent in the Court of Civil Judge, Class I,
Jabalpur seeking respondent's eviction from the suit
house under the M.P. Accommodation Control Act,
1961. The eviction was sought inter alia on the
grounds covered under Section 12(1)(a), i.e.,
arrears of rent; 12(1)(c), i.e., nuisance created by
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the respondent; 12(1)(e),i.e., the appellant's bona
fide need for his residence; and Section 12(1)(m),i.e.,
unauthorized construction made by the respondent
without the permission of the appellant in the suit
house.
12) The respondent filed his written statement. He
reiterated his stand, which he had taken in reply to
the appellant's legal notice. While admitting the
ownership of original owner Rai Bahadur Motiram
so also the creation of tenancy by Motiram with him
in relation to the suit house denied such creation
with the appellant. He further denied the grounds
pleaded by the appellant for claiming his eviction
from the suit house.
13) The Trial Court framed issues on the basis of
the aforesaid pleadings. Issue no.1 was whether the
appellant (plaintiff) has proved the relationship of
landlord and tenant with the respondent in relation
to suit house and, if so, its effect.
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14) The Trial Court held that the appellant
(plaintiff) was not able to prove the relationship of
landlord and tenant with the respondent in relation
to suit house. This being the main issue and the
same having been answered against the appellant, it
resulted in dismissal of the appellant’s suit though
the Trial Court also answered other issues.
15) The appellant, felt aggrieved, filed an appeal
before the Court of VIII Additional District Judge,
Jabalpur being Civil Appeal No. 15-A of 2006. By
order dated 28.03.2007, the District Judge
dismissed the appeal.
16) Against the said order, the appellant filed
second appeal being S.A. No. 1097 of 2007 in the
High Court. By impugned order dated 27.11.2009,
the High Court dismissed the appeal in limine
saying that the appeal does not involve any
substantial question of law. It was held that since
both the Courts below have dismissed the suit by
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answering the issue of relationship of landlord and
the tenant against the appellant and also on other
issues, such findings are concurrent findings of fact
and are binding on the High Court. The High Court,
however, neither set out the facts of the case and
nor the legal principle applicable to such
controversy.
17) Against the judgment of the High Court in
second appeal, the appellant filed review petition
being Review Petition No. 656 of 2009 before the
High Court. By judgment dated 15.01.2010, the
High Court dismissed the said review petition.
18) Challenging the judgment in the second appeal
and the review petition, the appellant(plaintiff) has
filed these appeals by special leave before this
Court.
19) Heard Mr. Puneet Jain, learned counsel for the
appellant and Mr. Anoop Kr. Srivastav, learned
counsel for the respondent.
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20) Mr. Puneet Jain, learned counsel for the
appellant (plaintiff), while assailing the impugned
order has urged three points. In the first place,
learned counsel submitted that all the three Courts
below erred in dismissing the appellant's suit. It was
his submission that the Courts below failed to even
see much less apply the law dealing with "challenge
to derivative title of the landlord" to the facts of the
case. Learned counsel urged that on facts pleaded
and the documents filed by the appellant coupled
with the admission of the respondent in his reply to
the appellant's legal notice and in his written
statement wherein he had, in no uncertain terms,
admitted the ownership of original landlord in
relation to the suit house and also admitted
creation of tenancy between him and the original
landlord, the Courts below should have answered
the issue in favour of the appellant by holding that
the appellant was able to discharge his burden by
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proving his ownership over the suit house and, in
turn, was also able to prove the devolution of
original tenancy on the appellant with the
respondent by operation of law. It was his
submission that the respondent simply challenged
the appellant’s title but failed to prove his case,
which was pleaded in the written statement whereas
the appellant was able to prove the title of original
landlord and also her own and thus discharged the
burden.
21) In the second place, learned counsel submitted
that since the appellant's suit was dismissed on the
ground that the appellant failed to establish the
relationship of landlord and the tenant with the
respondent in relation to suit house, the other
questions as to whether any ground pleaded by the
appellant for respondent's eviction from the suit
house though considered but not properly by the
courts below on merits. Learned counsel, therefore,
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urged that the case should be remanded to the Trial
Court for deciding the question afresh as to whether
any ground for eviction under Section 12(1) of the
M.P. Accommodation Control Act is made out on
merits against the respondent.
22) In the third place, learned counsel submitted
that the High Court erred in summarily dismissing
the appellant's second appeal on the ground that it
did not involve any substantial question of law. It
was urged that the High Court should have
admitted the appeal by framing substantial
questions of law, which, according to learned
counsel, did arise in the case and the questions
framed should have been answered by decreeing the
appellant’s suit against the respondent.
23) In reply, learned counsel for the respondent
(defendant) supported the impugned order and
prayed for dismissal of the appeal.
24) Having heard the learned counsel for the
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parties and on perusal of the record of the case, we
find force in the submissions of the learned counsel
for the appellant.
25) Law relating to derivative title of the landlord
(Lessor) and challenge, if made, to such title by the
tenant (Lessee) during subsistence of tenancy in
relation to demised property is fairly well settled.
Though by virtue of Section 116 of the Evidence Act,
1872, the tenant is estopped from challenging the
title of his landlord during continuance of the
tenancy, yet the tenant/lessee is entitled to
challenge the derivative title of an Assignee/Vendee
of the original landlord (Lessor) of the demised
property in an action brought by the
Assignee/Vendee against the tenant for his eviction
from the demised property under the Rent laws.
This right of a tenant is, however, subject to one
caveat that the tenant/lessee has not attorned to
the Assignee/Vendee. In other words, if the
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tenant/lessee pays rent to the Assignee/Vendee of
the tenanted property then it results in creation of
an attornment between the parties which, in turn,
deprives the tenant/lessee to challenge the
derivative title of an Assignee/Vendee in the
proceedings.
26) However, once the Assignee/Vendee proves his
title to the demised property, the original tenancy
devolves on the Assignee/Vendee and tenant/lessee
by operation of law on the same terms and
conditions on which it was entered into with the
original landlord/lessor and continues till either
modified by the parties or is determined by the
landlord in accordance with law. It enables the
Assignee/Vendee to acquire the status of a "new
landlord" in place of the original landlord of the
demised premises qua tenant/lessee. (See Law of
Evidence by Sarkar, 16th Edition, pages
2106-2108).
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27) Keeping the aforementioned principle of law in
mind and applying the same to the facts of the case,
we are of the considered opinion that the appellant
(plaintiff) has proved his title to the suit house so
also the relationship of landlord and tenant with the
respondent in relation to suit house. This we say for
more than one reason stated infra.
28) First, it is an admitted fact that Rai Bahadur
Motiram Mathuradas was the original owner of the
suit house, which was a part of Moti Bada. Second,
it is also an admitted fact that the respondent was
inducted as a tenant by Rai Bahadur Motiram
Mathuradas in the suit house. Third, the
respondent, in his reply, has admitted the aforesaid
two facts in para 4 of his reply to the appellant’s
legal notice and in para 13 of his written statement.
Fourth, the suit house was sold after obtaining
permission from Income Tax Department to Mr.
Kriplani by registered deed of sale dated 16.09.1974
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and Mr. Kriplani, in turn, sold to six persons, which
included the appellant, by another registered deed
of sale dated 16.09.1974. Fifth, these six persons
(co-owners) then by registered deed of partition
dated 14.03.1984 effected partition inter se and the
suit house fell to the share of the appellant herein.
Sixth, all these five facts enumerated herein were
duly proved by the appellant by first pleading in the
plaint and then by filing documentary evidence.
Seventh, the appellant served quit notice to the
respondent setting out therein all these facts.
Eighth, the respondent failed to adduce any
evidence in rebuttal to disprove the appellant's case
except bald denial of the appellant's title over the
suit house and lastly, the respondent having
admitted the ownership of his original landlord and
his tenancy with the original landlord, he became
the appellant's tenant by operation of law on the
appellant's proving his title over the suit house.
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29) In the light of aforementioned eight reasons,
we find no difficulty in holding that the appellant
proved her title over the suit house and thus she
became a landlady of the suit house. In
consequence thereof, the respondent became her
tenant by operation of law on the same terms as
agreed upon with the original landlord. The
appellant then rightly determined the tenancy by
serving quit notice to the respondent.
30) In the light of foregoing discussion, we answer
issue nos. 1, 2 and 3 framed by the Trial Court in
favour of the appellant (plaintiff) and against the
respondent (defendant) and accordingly hold that
the appellant (plaintiff) is the owner/landlord of the
suit house whereas the respondent(defendant) is the
appellant's tenant and there exists relationship of
landlord and tenant between the appellant and the
respondent in relation to the suit house; second, the
respondent (defendant) is the tenant at the rate of
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Rs. 80/- per month and third, the
appellant(plaintiff) has served proper quit notice on
the respondent (defendant) demanding balanced
rent .
31) In view of what is held above, it is not
necessary to remand the case to the High Court for
deciding the second appeal afresh on merits which,
in our view, did involve the substantial questions of
law within the meaning of Section 100 of the Code
of Civil Procedure,1908 and deserved its admission
for final hearing.
32) The cursory disposal of the second appeal in
limine by the High Court without mentioning the
facts, the submissions of the appellant, the points
arising in these appeals and legal principles
applicable to the case can not be countenanced.
33) Though the Trial Court has also recorded
findings on other issues against the appellant but
we find that the findings on other issues were
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influenced by the findings given on the first three
issues.
34) In our view, in the light of the reversal of
findings of three courts by this Court, it would be
just and proper that the case is remanded to the
Trial Court (Civil Judge Class I), Jabalpur for
deciding the suit afresh on merits on issues nos. 4
to 11 which relate to grounds for seeking eviction
under Section 12 of the Act.
35) Parties are granted liberty to amend the
pleadings, in case if they so wish, in support of their
case pleaded in relation to issue nos. 4 and 11.
Parties are also granted liberty to lead additional
evidence in addition to what has been already
adduced in support of their respective pleadings on
these issues. The Trial Court shall decide the suit
on merits on issues nos. 4 to 11 in accordance with
law within 6 months from the date of appearance of
the parties before him.
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36) In view of foregoing discussion, these appeals
succeed and are allowed with costs of Rs.5000/-
payable by the respondent to the appellant. The
impugned judgments of the High Court, first
Appellate Court and the Trial Court are set aside.
The civil suit out of which these appeals arise is
restored to its file. Parties to appear before the Trial
Court on 03.01.2017 to enable the Trial Court to
proceed in the matter, as directed, in accordance
with law.
………...................................J. [A.K. SIKRI]
…...……..................................J.
[ABHAY MANOHAR SAPRE] New Delhi; November 29, 2016
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