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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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