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      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  

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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.

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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  

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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,  

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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  

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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:

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“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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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

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