KESHAR BAI Vs CHHUNULAL
Bench: RANJANA PRAKASH DESAI,J. CHELAMESWAR
Case number: C.A. No.-000106-000106 / 2014
Diary number: 1550 / 2011
Advocates: NIRNIMESH DUBE Vs
AMIT PAWAN
Page 1
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.
1
Page 2
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,
2
Page 3
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
3
Page 4
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
1 (2008) 8 SCC 497 2 (2005) 12 SCC 239 3 (2012) 3 SCC 319
4
Page 5
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
4 (2005) 7 SCC 653 5 (2012) 8 SCC 584 6 (2006) 5 SCC 532
5
Page 6
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.
7 (2010) 9 SCC 560
6
Page 7
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
7
Page 8
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
8 (2002) 3 SCC 375
8
Page 9
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 Sitapur9.) 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.
9 AIR 1965 SC 1923
9
Page 10
… … … … … … … …
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.”
1
Page 11
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
1
Page 12
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. 10 (1989) 4 SCC 732
1
Page 13
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
11 (1988) 3 SCC 137
1
Page 14
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
1
Page 15
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
1
Page 16
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.
1
Page 17
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.
1
Page 18
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