STATE OF A.P. Vs D. RAGHUKUL PERSHAD (D) BY LRS .
Bench: A.K. PATNAIK,SUDHANSU JYOTI MUKHOPADHAYA
Case number: C.A. No.-005822-005822 / 2012
Diary number: 38538 / 2009
Advocates: C. K. SUCHARITA Vs
Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5822 OF 2012 (Arising out of SLP(Civil) No. 35306 of 2009)
STATE OF A.P. & ORS. Appellant(s)
VERSUS
D. RAGHUKUL PERSHAD (D) BY LRS & ORS. Respondent(s)
O R D E R
Leave granted.
The facts briefly are that the respondents
herein filed OS No. 2379 of 1990 in the Court of 5th
Assistant Civil Judge, City Civil Court, Hyderabad
against the appellants no. 1 to 4 for ejectment and
resumption of possession of the suit land. The case
of the respondents in the plaint was that the
appellants had taken lease of the suit land from their
common ancestor late Shri Dwaraka Pershad who had
purchased the suit land from Nawab Raisyar Bahadur.
The further case of the respondents in the plaint was
that as the appellants failed to pay any rent from
1986 and renewed the lease after 1986, the respondents
gave a notice to the appellants on 30.11.1989 to
vacate the suit land. The appellants filed written
statement pleading, inter alia, that the suit land
actually belonged to the appellants and the lease deed
had been executed and the rent had been paid to the
respondents by mistake of fact. The learned Civil
Judge decreed the suit for eviction after recording a
finding, inter alia, that the appellants have not been
able to prove the title to the land. The appellants
filed First Appeal before the 3rd Additional Chief
Judge, City Civil Court, Hyderabad which was numbered
Page 2
2
as AS No. 294 of 2005. The First Appellate Court held
that the appellants were estopped from setting up
title in them so long as they have not surrendered
possession of the land to the lessees, namely, the
respondents and further held that the appellants have
not been able to establish their title to the suit
land.
Aggrieved, the appellants filed Second Appeal
SA No. 270 of 2009 before the High Court and by the
impugned order, the High Court has dismissed the
Second Appeal after holding that the appellants cannot
be permitted to deny the title of the respondents
under the provisions of 116 of the Indian Evidence Act
and also holding that the appellants have not been
able to adduce any evidence to prove that the suit
land belonged to the appellants. The High Court also
held in the impugned order that in a writ petition WP
No. 9717 of 1993 filed before the High Court one
Mohammed Khasim and Ameena Begum had challenged the
entries with regard to Survey No. 58(Old) of
Bahloolkhanguda Survey No. 127(new) and the High
Court had observed that Rayees Yar Jung was the owner
and sales made by Rayees Yar Jung were therefore,
valid. The High Court further observed that the order
passed by the High Court in writ petition no. 9717 of
1993 was challenged before this Court by the
Government but this Court had dismissed the appeal and
therefore, the appellants were estopped from taking a
different stand with regard to the ownership of the
land. With the aforesaid findings, the High Court
dismissed the Second Appeal of the appellants.
Mr. P.S. Narasimha, learned senior counsel
appearing for the appellants cited a full Bench
Judgment of the Madras High Court in Venkata Chetty
Vs. Aiyanna Gounden AIR 1917 Madras 789 and
particularly the observations of Abdul Rahim,
officiating C.J., to the effect that a tenant who was
Page 3
3
not let into possession by the person seeking to eject
him is not estopped from denying the plaintiff's title
and he may also show that the title is in some third
person or himself. He also relied on the observations
of Sheshagiri Aiyar, J. in the aforesasid case that
under the Indian Contract Act, it can be shown that
any contract into which a party has entered into is
vitiated by mistake and the principle of estoppel
should not be held to override these provisions of law
of contract. He argued relying on the aforesaid
observations in the judgment of the Madras High Court
that the appellants, therefore, were entitled to plead
in the written statement that the execution of the
lease acknowledging title of the respondents was a
mistake of fact and that the appellants were actually
the owners of the suit land.
We have considered the submissions of
Mr. P.S. Narasimha and we find that although plea was
raised by the appellants in their written statement
that the execution of the lease deed in the present
case, as well as payment of rent pursuant to the lease
deed were under mistake of fact, no issue as such was
framed by the trial Court on whether the lease deed
was executed by mistake of fact. This issue is an
issue of fact and it is at the stage of trial that
this issue will have to be raised and framed by the
trial Court so that parties could lead evidence on the
issue. In this case, as this issue has not been
framed, parties have not adduced evidence and no
finding as such has been recorded by the trial Court
on this issue. Hence, we are not in a position to
consider the argument of Mr. P.S. Narasimha that the
lease deed was executed and the rent was paid by
mistake of fact.
The law is settled by this Court in D.
Satyanarayana vs. P. Jagdish 1987(4) SCC 424 that the
tenant who has been let into possession by the
Page 4
4
landlord cannot deny the landlord's title however
defective it may be, so long as he has not openly
surrendered possession by surrender to his landlord.
Although, there are some exceptions to this general
rule, none of the exceptions have been established by
the appellants in this case. Hence, the appellants
who were the tenants of the respondents will have to
surrender possession to the respondents before they
can challenge the title of the respondents.
In the plaint as framed by the respondents in
the present case, the relief of eviction against the
appellants was not based on the title of the
respondents. Mr. M.L. Varma, learned senior counsel
appearing for the respondents vehemently submitted
that on a reading of the plaint, it will appear that
the respondents had claimed to be owners of the land.
We find that although an averment has been made in the
plaint that the respondents were the owners of the
suit land, no relief for declaration of title as such
has been claimed by the respondents. Only the relief
of eviction was sought in the plaint on the ground
that the lease had not been renewed after 1986 and the
rent had not been paid since 1986. In our considred
opinion, therefore, this being not a suit of
declaration of title and recovery of possession but
only a suit for eviction, the trial Court, the First
Appellate Court and the High Court were not called
upon to decide the question of title.
For the aforesaid reasons, we set aside the
findings of the trial Court, the First Appellate Court
and the High Court on title, but we maintain the
decree for eviction. We, however, order that the
appellants will vacate the suit land within six months
from today and further make it clear that the suit, if
any, filed by the appellants for declaration of title
and consequential relief cannot be entertained by the
Court unless the appellants first vacate and handover
Page 5
5
possession to the respondents.
The judgment of the Courts below are modified
accordingly. The appeal is allowed to the extent
indicated above. No costs.
..............................J. (A.K. PATNAIK)
..............................J. (SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI AUGUST 08, 2012.