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.