JUDGMENT T.K. Chandrashekhara Das, J.
1. The learned Advocate for the respondent argued this matter on 1st February, 2001 for some time. Later he prayed for adjourning it on the next day as he desired that the Senior Counsel should argue the matter. We adjourned it to 2nd February, 2001 on condition that we shall give him 11/2 hours. On the next day, we gave more than two hours for the learned Senior Counsel to argue. However, he desired to continue. We declined. He objected to it. But we closed the appeal for orders. We may also point out that the learned Counsel for the appellant pointed out that the learned Single Judge heard the matter on 29-4-88 and the judgment was delivered by him on 15th September, 1990 i.e. nearly after 2.2 years. She wanted to contend that on this ground alone, the judgment and decree of the learned Single Judge be set aside. However, we declined and expressed that we shall consider the merits of the matter.
2. This appeal arises out of S.C. Suit No. 6954 of 1972 on the file of City Civil Court, Mumbai filed against respondent for recovery of possession of the Plot No. 81 and 82 at Gandhi Nagar, Bharat Bazar, Dr. Mossess Road, Worli, Mumbai 400 018. The said suit was dismissed by the trial Court by the judgment dated 30-10-1987. Against that judgment, the plaintiff filed First Appeal No. 1980 of 1987 and the same has been allowed and decree of possession was granted against the appellant by judgment dated 15-9-1990 by the learned Single Judge of this Court. The plaintiffs case, after amending his plaint twice before the trial Court, was that the defendant is a licensee of the aforesaid plot who obtained licence as per agreement dated 1-5-1971 to run a workshop and defendant committed breach of provisions of the licence which resulted in revocation of licence. In other words, the plaintiffs' case, giving up his alternative plea taken in the plaint, is that the defendant was put in possession of the plots as per licence agreement dated 1-5-1971 Exh. "A" and the defendant has committed breach of the provisions and licence was terminated.
3. The defendant's case is that the agreement dated 1-5-1971 came to be executed on the misrepresentation and fraud played by the plaintiff. It is the further case of the defendant that he had came into possession of the said plot together with the shed thereon on 27-12-1970 in arrangement with one Shamsher Khan. After the departure of the said Samsherkhan in a few months, he was alone occupying the premises. At that time the plaintiff had approached the defendant and represented to him that the plaintiff was legal tenant of the premises and he offered sub tenancy. Since the defendant was already in possession as he has already started business in the premises the defendant believed the representation made by the plaintiff and he entered into an agreement dated 1-5-1971. According to the defendant, he was anxious to retain his possession which was anterior to 1-5-1971. But later Bombay Municipal Corporation issued notice dt. 3-1-74 and he came to know that one Sayad Manzoor Hussain was the lessee of the said plot belonging to the Corporation and plaintiff was not lawful tenant of the said premises. Therefore, document Exh. "A" was un-enforceable as it was executed on the misrepresentation or fraud played by the plaintiff.
4. On the basis of this rival contentions, the trial Court has framed 15 issues. For the purpose of this appeal, Issue Nos. 2, 5 and 6 assume importance. These issues reads as under :
Issue No. 2:
Whether the plaintiff prove that he has at the relevant time a lawful tenant or had any time any right, title or interest in the suit premises as alleged in para 2 and 3 of the plaint ?
Issue No. 5:
Whether the defendant proves that the defendant took the suit premises along with a shed standing thereon from the Shamsher Khan in or about December, 1970, as alleged in para 1 of the supplementary written statement?
Issue No. 6:
Whether the defendant proves that the agreement dated 1-5-1971 is sham and bogus, and was executed in the circumstances described in, and the same is therefore, null and void or voidable as contended in, para 2 and 3 of the supplementary written statement ?
5. All these issues found in favour of the defendant by the trial Court. Regarding Issue No. 2 the Lower Court has relied upon the admission made by the plaintiff in the witness box which reads as follows :
"I admit that the present I am not the legal tenant in respect of Plot No. 81/82 of the Corporation. I admit that even prior to this Plot No. 81/82 was not in my name as tenant in the Corporation. It is true that even earlier or even at present the shed which is on that plot was neither in my name nor it is in my name today."
6. The Lower Court from the above admission as well as other materials on record found that the plaintiff had no authority or right to grant licence. It is an undisputed fact in this case that the owner of the plot is Municipal Corporation and it was leased out to Manzoor Hussain. The plaintiff did not contend or plead as to how the plaintiff became tenant of the suit plot. The Lower Court did not believe further case of the plaintiff that Manzoor Hussain assigned the property in favour of the plaintiff by unregistered deed dt. 21-8-1967. But it has come out in the evidence that said Manzoor died on 6-7-53 (Death extract Exh. 15). Therefore, apart from the admission, the Lower Court found that the plaintiff had never any title to the plot as tenant or possessory title at the time of commencement of licence. Therefore, the Lower Court has believed the case of the defendant and the suit was dismissed mainly relying upon section 116 of the Evidence Act. It was held that appellant is estopped from disputing the right of the respondent in view of the licence agreement executed into between them.
7. A legal contention has been raised on behalf of the plaintiff that the defendant is estopped from denying the title of the plaintiff in view of section 116 of the Evidence Act. But the Lower Court has discussed that contention in detail and rejected the contention. The observation of the Lower Court is as follows :
"Now in our present case, the evidence clearly shows that the plaintiff himself was never in possession of this property prior to 1-5-1971. The evidence without shadow of doubt shows that the defendant was already in possession in any case is with his exclusive possession from December, 1970. In view of these two questions of fact, the only conclusion would be that the plaintiff was never in possession and as such there would be no question of him putting the defendant in possession and consequently no question of estoppal arises."
8. In the facts and circumstances, we find that this reasoning of the Lower Court stands on the sound legal basis. We find no fault in this observation of the trial Court. The learned Single Judge has examined observations made by the trial Court. But it appears that he has travelled in a different tanget, according to us wrongly. He mainly relied upon the inconsistent stand taken by the defendant in the pleadings and also the certain averments contained in the complaint filed by the defendant before the Criminal Court and found that the defendant cannot after commencing the licence and once recognising the plaintiff as Licensor, turn round and say that he has no authority. According to us, this approach is quite erroneous. The defendant is not estopped and he did not take an inconsistent stand also. He came to know the real nature of the title of the property when Municipal Corporation informed him that Manzoor Hussain was the tenant. In addition he came to know of the alleged unregistered assignment deed dt. 21-8-1967 in favour of the plaintiff by Manzoor Hussain when notice dated 12-12-1978 came to be issued to him through Advocate Bagalia on behalf of the heirs and legal representatives Manzoor Hussain claiming right to the land. Said Advocate Bagalia was examined as D.W. 3 to prove this.
9. The learned Counsel for the appellant has vehemently argued and tried to defend the judgment of the learned Single Judge. He contended that the defendant has not got valid existing licence and therefore he is liable to be evicted. The Court need not embark upon an enquiry whether the plaintiff has valid title to grant licence. It is futile on the part of the Court to insist upon the plaintiff to prove his title to the property to get a decree. We cannot accept this contention of the learned Counsel for the appellant. A party who approaches the Civil Court for possession, must prove his case that he is legally entitled to recover possession. In other words, the Civil Court will not grant a decree for possession unless it is satisfied that the plaintiff is legally entitled to such possession. In other words, the Court will not give the decree of possession to a stranger or tress-passer even when the defendant is not in a position to prove that he is entitled to continue his possession. The trial Court has correctly appreciated the evidence and legally approached the issues before it. Therefore, we fail to understand the legal basis of the argument of the learned Counsel for the petitioner, that even though the plaintiff failed to prove his title to get possession of the property but as the defendant did not deny the licence agreement, the Court must grant a decree. We can not support the judgment of the learned Single Judge.
10. Now we come to the effect of denial of title by the defendant under section 116 of the Evidence Act. As we pointed out earlier, section 116 will not come into play at all in this case. As rightly pointed out by the Court below, it has been proved by the defendant that Exh. A was executed as a result of misrepresentation and fraud taking advantage of his anxiety to continue his business. It was later on found that the Corporation has never granted any lease to the plaintiff which fact has been admitted by the plaintiff but suppressed by the plaintiff of one of agreement. Due to B.M.C. notice dt. 3-1-1974 defendant came to know it. In that case, he had no authority to grant licence in favour of the defendant. The language of section 116 of the Evidence Act clearly postulates this contingency as has been discussed by the trial Court. In order to succeed on the basis of the plea of estoppal as envisaged under section 116 of the Evidence Act, the Landlord or Licensor must prove that the defendant was denying the title of the landlord at the commencement of the licence and then turn around and say without any legal basis, just to avoid eviction, deny the title to the landlord or licence. It has come out in the evidence that the licence has been executed before Exh. A agreement. The defendant was in possession before that date. The evidence in this regard has not been challenged or controverted by the plaintiff. Moreover, the trial Court has take care to examine the contention of the defendant in the back ground of the plea that there was agreement executed between plaintiff and Manzoor in 1967 and the same cannot be relied upon because there is evidence that Manzoor died in the year 1953. The Lower Court has correctly held that the so called unregistered deed of assignment dt. 21-8-1967 executed between Manzoor and the plaintiff is false document and cannot be relied upon. Therefore, this falsity of the statement of the plaintiff makes the case of the defendant is stronger and the trial Court has found that at the time of entering into licence agreement itself the plaintiff had no right to the property and to execute the licence agreement.
11. The rule of estoppel under section 116 of the Evidence Act is restricted to the denial at the commencement of the tenancy. It is open to the tenant without surrendering tenanted premises, to show that since the inception of the tenancy title of the landlord cam to end. The Supreme Court in its decision in D. Satyanarayana v. P. Jagdish, held in para 3 thus :
"The rule of estoppel is thus restricted not only in extent but also in time i.e. restricted to the title of the landlord and during the continuance of the tenancy; and by necessary implication, it follows that a tenant is not estopped, when he is under threat of eviction by the title paramount, from contending that the landlord had no title before the tenancy commenced or that the title of the landlord has since come to an end."
12. In view of the aforesaid pronouncement of the Supreme Court, the rule of estoppel will not operate against the appellant herein. Since the very inception of the licence, respondent had no tenancy of the property. In Mangat Ram and another v. Sardar Meharban Singh and others, the same view has been reiterated by the Supreme Court. The Supreme Court has observed in para 11 thus :
"The estoppel contemplated by section 16 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor had since come to an end."
13. We have seen that the agreement executed between the parties on 1-5-1971 is brought about by misrepresentation by the plaintiff. In fact on the date of the agreement, there was no tenancy in favour of the respondent. This amply establishes that the rule of estoppel will not apply in this case. In addition to the evidence on record clearly establishes that defendant was put in possession of the land not under the said leave and licence agreement dt. 1-5-1971 but on 27-12-1970 by one Shamsher Khan who came in possession of the land after the death of Manzoor Hussain. For this reason, section 116 is not attracted and the statement made to that effect in the agreement, which was the basis, was false.
14. The learned Counsel for the respondent lastly contended that the L.P.A. is not maintainable against the judgment of the learned Single Judge because no question of substantial law arose or raised. This statement of the learned Counsel for the respondent cannot be accepted because the Division Bench is considering the L.P.A. against the learned Single Judge of this Court can go into both the findings of fact and law. It can disturb the findings of the learned Single Judge if it is found to be perverse. The Supreme Court judgment in Smt. Asha Devi v. Dukhi Sao and another, it has been dealt with in the following paragraphs in the judgment :
"............... It is submitted that Letters Patent Appeal stands on the same footing as a second appeal and it was therefore not open to the Letters Patent Bench to reverse the concurrent findings of fact of the two courts below. We are of opinion that this contention is not correct. A Letters Patent appeal from the judgment of a learned Single Judge in a First appeal to the High Court is not exactly equivalent to a second appeal under section 100 of the Code of Civil Procedure and therefore, it cannot be held that a Letters Patent appeal of this kind can only lie on question of law and not otherwise. The matter would have been different if the Letters Patent appeal was from a decision of a learned Single Judge in a second appeal to the High Court. In these circumstances, it will be open to the High Court to review even findings of fact in a Letters Patent appeal from a first appeal heard by the learned Single Judge, though generally speaking the Letters Patent Bench would be slow to disturb concurrent findings of fact of the two courts below. But there is no doubt that in appropriate case a Letters Patent Bench hearing an appeal from a learned Single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact. The contention of the appellant therefore, that the Letters Patent Bench was not in law entitled to reverse the concurrent findings of fact must be negatived."
15. In view of this, we find that there is serious error committed by the learned Single Judge both on facts and law. The learned Single Judge observed that even if the respondent has not proved legal tenancy of the property, still it is incumbent upon the defendant to surrender the premises to him when his licence is terminated. The reasoning of the learned Single Judge is totally perverse.
16. In view of the above, this appeal is allowed.
The judgement and decree of the learned Single Judge is set aside. The decree of dismissal of the suit of the respondent passed by the trial Court is upheld. In the circumstances, no orders as to costs.
17. The interim order passed by this Court on 16-12-1993 appointing Court Receiver will continue for another eight weeks and after that the Receiver stands discharged subject to passing accounts. C.C. expedited.