Sahaj Ram vs Rajendra Prasad
2016 Latest Caselaw 3185 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Case :- MATTERS UNDER ARTICLE 227 No. - 1828 of 2016
 
Petitioner :- Sahaj Ram
 
Respondent :- Rajendra Prasad
 
Counsel for Petitioner :- Sundeep Agarwal,Nimai Dass
 
Counsel for Respondent :- Virendra Singh
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Sri Nimai Dass and Sri Sundeep Agarwal, learned counsels for the petitioner and Sri Virendra Singh, learned counsel for the respondent.

The eviction decree passed in SCC Suit No. 43 of 1987 (Rajendra Prasad vs. Sahaj Ram) is under challenge in the present petition. A notice dated 2.4.1987 was served upon the defendant/petitioner demanding rent from 1.2.1986 to 31.3.1987 @ Rs. 50/- per month for a total Rs. 700/- towards rent, Rs. 140/- towards House Tax and Water Tax, thus total amount due was Rs. 840/- per month. By the said notice, the tenancy was also terminated on the ground of default. The eviction suit was filed on 25.8.1987. The defendant had put in appearance on 4.2.1988.

In the present suit, it was submitted by the defendant that on the date of notice he was not in default of rent for more than 4 months and as such the notice itself was invalid, the suit cannot proceed, accordingly. This contention of the petitioner was repelled by the Court below with the finding that the tenant could not establish by producing cogent evidence that the landlord refused to accept the rent. The deposits under Section 30 of the Act, therefore, cannot be said to be valid deposits and on the date of notice, the tenant was in default of more than 4 months of rent.

It was further observed that a total amount of Rs. 2,025/- with interest has been deposited by the tenant before the first date of hearing in the present suit, however, benefit of Section 20 (4) of the Act could not be accorded to him for the reason that these deposits were made conditional. Under Section 20(4) of the Act the tenant is required to deposit the entire rent with interest and cost of the suit, unconditionally.

On issue no. 6, it was further held that the dispute regarding title of the landlord could not be decided in the present suit. Such a dispute is pending before the Competent Civil Court and cannot be looked into in a summary proceedings. However, looking to the fact that the petitioner/defendant was inducted in the suit property as tenant by the erstwhile landlord from whom the plaintiff claims to have derived title, it was held that the defendant is tenant in the suit property.

The revisional court while dismissing the revision had also observed that the plaintiff had derived title in the suit property on the basis of a declaratory decree passed in Original Suit No. 509 of 1984 and, therefore, the defendant cannot raise a dispute regarding title of the plaintiff to the suit property. The deposits under Section 30 are not valid deposits and moreover, the deposits in the present suit are conditional and, therefore, benefit of Section 20(4) cannot be accorded to the petitioner.

The grounds of challenge to the orders of eviction urged by the learned counsels for the petitioner are that the denial of title of the landlord by the defendant was denial of derivative title. The plaintiff admittedly had derived title from the erstwhile landlord on the basis of an alleged declaratory decree. The plaintiff's case was that the suit property was mortgaged to him on 31.7.1979 with the condition that in case, the mortgage is not redeemed it would be converted into a sale deed. The declaratory decree obtained by the plaintiff is an ex-parte decree, on the basis of it, he cannot claim to have derived a valid title as owner/landlord of the suit property. The plaintiff being a mortgagee cannot become owner unless he files a suit for foreclosure of mortgage as per Section 67 of the Transfer of Property Act. The declaratory decree dated 9.2.1989 in Original Suit No. 509 of 1984 cannot, therefore, confer a valid title upon the plaintiff.

Apart from this, it was alleged that the defendant/petitioner got a lease in his favour of the plot in question and also got it converted into free-hold. Subsequently a sale deed has also been executed in his favour by the Nagar Palika concerned on 12.4.2001. The sale deed has not been challenged before any Court of law. A suit namely Original Suit No. 1209 of 1993 (Rajendra Prasad vs. Nagar Palika Koshikala) filed by the plaintiff/respondent has been dismissed in default on 7.5.1997 and has not been restored till today.

So far as the superstructure namely the shop in question is concerned, the petitioner got a sale deed from the erstwhile owner namely Tara Chand Agarwal on 9.7.2001. The suit for cancellation of the sale deed, executed by Tara Chand Agarwal in favour of the petitioner, filed by the plaintiff/respondent namely Original Suit No. 39 of 2002 is pending.

An application under Section 23 of Provincial Small Causes Courts Act for return of plaint was filed by the petitioner which was initially allowed but the said order was set aside in revision. The revisional court's order was affirmed in a Writ-A No. 19417 of 2010 (Sahaj Ram vs. Rajendra Prasad) decided on 9.4.2010.

Submission is that since the defendant is claiming his title in the suit property, he cannot be evicted on the alleged default in payment of rent.

So far as the deposits made by the petitioner/defendant before the SCC Court, it could not have been ignored on any of the grounds that the deposits were conditional or the tenant had denied the title of the plaintiff landlord.

Dealing with the first submission of learned counsel for the petitioner regarding his title to the suit property suffice it to say that the fact that the petitioner was inducted in the suit property as tenant by the erstwhile landlord namely Tara Chand Agarwal is not disputed. The dispute is being raised with regard to title of the plaintiff who claims to have derived title pursuant to a declaratory decree dated 9.2.1989 passed in Original Suit No. 509 of 1984 against Tara Chand Agarwal, the original owner. The said suit was filed for a declaration that the mortgage has not been redeemed and treating the mortgage deed as sale deed the plaintiff became absolute owner.

The petitioner on the other hand, is claiming title through the sale deeds executed in his favour by Nagar Palika with regard to the plot over which the superstructure namely shop in question exists. He is also claiming the title of the superstructure on the basis of sale deed dated 9.7.2001 executed by the erstwhile owner and landlord namely Tara Chand Agarwal. Both the parties have filed their respective suits before the Civil Court to establish their right and title in the suit property.

The question as to whether the petitioner/defendant had derived a valid title in the suit property on the basis of sale deeds executed in the year 2001 or whether the vendee namely Tara Chand Agarwal had a right to execute the said sale deeds is a question to be examined by the Civil Court in the pending suits. In any case, the Small Causes Court in this summary proceeding was not required to examine this issue.

However, so far as the question of competence of the SCC Court to proceed with the present suit, the same has been set at rest with the dismissal of writ petition on 9.4.2010 filed by the petitioner/defendant. There is no dispute about the fact that the petitioner/defendant was inducted in the suit property by Tara Chand Agarwal as a tenant. His status in the suit property has not been changed that too that of an owner in view of the fact that as on date there is no declaration in his favour, the eviction suit has rightly been proceeded treating him as tenant.

Now, only points remain to be considered is whether the deposits made by the petitioner/defendant would be deemed to be conditional disentitling him to claim the benefit of Section 20(4) of the Act and whether it is a case of denial of title of the plaintiff landlord giving him a legal right to ask for the eviction of tenant.

The Courts below have held that the petitioner while depositing the rent had denied the ownership of the plaintiff and stated that he was not entitled for payment of the rent. It was further stated that the payment of the deposited money should not be made to the plaintiff unless he succeeds in the pending proceedings before the Civil Court. It is thus, clear that the tenant had not made an "unconditional deposit" as required under Sub-section (4) of Section 20 of the Act.

Submission of learned counsel for the petitioner/defendant is that the condition put by the tenant was only a protest raised by him regarding entitlement of the plaintiff to rent. So far as the denial of title of the plaintiff is concerned that cannot be made basis for eviction of the petitioner for the reason that it was a denial of derivative title of the landlord. The denial was not of the title of the original landlord who had inducted the petitioner as tenant in the suit property.

Reliance is placed upon the judgment of this Court in Hari Ram Sahu versus Ramesh Chandra Agarwal1 and the judgment of the Apex Court in D. Satyanarayana versus. P. Jagadish2.

On the other hand, learned counsel for the respondent has placed reliance upon the judgment of this Court in Sheo Murti Gupta versus Ghoorey Lal and another3, Ram Krishna Jaiswal versus District Judge, Allahabad4 and the judgment of the Apex Court in Sri Ram Pasricha versus Jagannath and others5.

So far as the question of denial of title of the plaintiff is concerned, admittedly, the plaintiff did not induct the petitioner/defendant in the suit property.

At this stage, it is pertinent to refer to the law of denial of title of the landlord or disclaimer of tenancy set out as a ground for eviction of the tenant.

Section 20(f) of the U.P. Urban Buildings (Regulation of Letting and Eviction Act, 1972 provides that a tenant incurs liability for eviction if he denies the title of the landlord or renounce his character as a tenant, as this act of the tenant would adversely and substantially affect the interest of the landlord therein.

Section 111(g) of the Transfer of Property Act also provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself.

Section 116 of the Evidence Act provides a rule of estoppel that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy a title to such immovable property. This means that the estoppel to challenge the title of the landlord binds the tenant from disputing the title of his landlord at the commencement of the tenancy. The rule of estoppel applies so long as the tenancy is not terminated, however, the tenant is not estopped from pleading that the title of the landlord has come to an end or the landlord has lost his title during the continuance of tenancy.

There is another aspect of the matter that in case of transferee is called upon to prove his derivative title, the estoppel would not apply. The expression "derivative title" is referable to the plaintiff seeking eviction of the tenant. While disputing the derivative title of the transferee landlord, the tenant cannot say that the original landlord's title was defective or he had no such title as he could pass to the transferee. The object behind this provision is an implied condition in every lease that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done, the lessor may re-enter for breach of this implied condition.

However, it is not sufficient that if the lessee does not at once acknowledge the title of the transferee landlord or put him to proof of his title. Essential characteristic of disclaimer is that it must amount to a renunciation of his character by the tenant, either by setting up a title in another person or by claiming title in himself. A mere renunciation of tenancy without anything more, cannot amount to a disclaimer. Setting up a title hostile to that of the landlord by the tenant himself or the tenant assisting another person to set such a claim entails forfeiture of tenancy. However, after the creation of the tenancy, if the title of landlord is transferred or devolves upon a third person, the tenant is not estopped from denying such title.

The Apex Court in Sheela and others vs. Firm Prahlad Rai Prem Prakash6 has held that however, it has to be borne in mind that since the consequence of applying the rule of determination by forfeiture of tenancy as a result of denial of landlord's title or disclaimer of tenancy by tenant are very serious. To operate it against the tenant as providing a ground for eviction, the denial of title of the landlord has to be "not bonafide" that means absence of good faith or non genuineness of the tenant's plea.

In Subhash Chandra vs. Mohammad Sharif and others7 it has been held that where the landlord has not himself inducted the tenant in the disputed property and his rights are founded on a derivative title, for example, as an assignee, donee, vendee, heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiff's claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by S. 116 of the Evidence Act. The section does not permit the tenant, during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction, a transferee from a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in.

Relevant paragraph '7' of the above report is quoted as under:-

"7. So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non-existent in the eye of law. By way of an illustration one may refer to a case where the original landlord had the fight of possession and was, therefore, entitled to induct a tenant in the property but did not have any power of disposition. the tenant in such a case can attack the derivative title of the transferee-plaintiff but not on the ground that the transferor-landlord who had initially inducted him in possession did not have the right to do so. Further since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage when the tenancy commenced, he is forbidden to plead that subsequently the landlord lost this right. These exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy."

Same principle has been narrated in A.V.G.P. Chettiar and Sons and others vs. T. Palanisamy Gounder8.

Relevant paragraphs '38' and '39' are quoted as under:-

"38. This Court has recently held that Section 10(2)(vii) is based on "the rule of estoppel contained in Section 116 of the Evidence Act which estops the tenant from denying the title of the landlord at the commencement of the tenancy and the estoppel continues to operate so long as the tenant does not surrender possession over the tenancy premises to the landlord who inducted him in possession. The tenant is not estopped from denying the title of the landlord if it comes to an end subsequent to the creation of the tenancy nor is he estopped from questioning the derivative title of a transferee of his landlord". [JJ. Lal Pvt. Ltd. and others vs. M.R. Murali and another 2002 (3) SCC. (Emphasis added).

39. It is nobody's case that the appellants were inducted by Gowthaman from whom the respondent derived his interest in the property. The High Court noted that "the rent receipts were given originally in the name of E. Venkata Naicker Trust, Erode/E.V. Krishasami Sons (management)". Therefore, the appellants were inducted as tenants by the Trust. If the suit property was part of the Trust, the appellants could validly raise the questions viz. how did the property come to be transferred by the Trust to Gowthaman? What was the validity of the transfer, if any? What was the nature of the interest which Gowthaman had in the suit property? Was it qua trustee or qua owner? If it was that of a trustee, could he have, legally and in terms of the Trust deed, transferred the suit property to the respondent? Yet the Rent Controller refused to go into any of these questions although they were squarely raised by the appellants before him. Instead he decided the title of Gowthaman on the basis of a partition deed between the heirs of Venkata Naicker and rent receipts granted to the appellants by Gowthaman as proprietor. The Rent Controller could have only decided (i) whether there was a dispute regarding the landlord's title raised by the tenant and (ii) whether the dispute was bona fide the bona fides being established prima facie, by evidence in support of the tenant's stand. The Rent Controller could not have ignored the questions relating to the derivative title of the respondent. He could not have finally decided the issue of title of the respondent to the suit property, nor could he have, on that basis, find that the appellants' denial of the respondents title not bonafide. "To operate against the tenant as proving a ground for eviction under Section 10 of the Act, a mere denial of the title of the landlord is not enough; such denial has to be "not bona fide". "Not bona fide" would mean absence of good faith or non-genuineness of the tenant's plea. [JJ. Lal Pvt. Ltd. v. M.R. Murali (supra)".

In Sheela (supra), it is held that the nature of the plea raised and the stand taken by the defendant in the written statement and at the trial is relevant to cull out the primary purpose behind raising the demand for proof of ownership of the plaintiff over the suit property. The plea which is a bona fide effort on the part of the tenant to protect himself by insisting on the plaintiff to satisfy all the requirements of the relevant provision of law, cannot be said to be a malicious act of the tenant/defendant. The pleading of the defendant has to be read and appreciated in the light of the requirements of the provision which requires the decree for eviction.

The Apex Court further says that it would have been different if the tenant would have raised such a plea as a malicious or wanton act of himself by raising on his own a dispute as to the title of the landlord as owner of the suit premises though the question of ownership was not germane to the claim for eviction or if he would have disowned his character as tenant whilst in possession of the premises.

In the light of the principle discussed above, it is seen in the instant case that the tenant never questioned the title of the original landlord on the basis of contract of tenancy. He claimed himself as an owner on the basis of the sale deed executed by the original landlord in his favour. In order to protect his interest, he has called upon the plaintiff to prove his title. The challenge to the title of the plaintiff is based upon the plea that the plaintiff being a mortgagee cannot derive a valid title from the original landlord on the basis of a declaratory decree without filing a suit for foreclosure of mortgage. The instant case, therefore, cannot be said to be a case of denial of title of the landlord and, therefore, benefit of Section 20(4) cannot be denied to the petitioner on that ground and the plaintiff cannot ask for eviction on this ground.

Now only question left to be examined is whether the deposits would be deemed to be conditional disentitling the tenant to claim the benefit of Section 20(4) of the Act. It is noted above that a specific condition was knowingly put by the tenant while making the deposits that the plaintiff would be entitled to receive money only after his rights are determined by the competent civil court. The present suit was filed on 25.8.1987 and the tenant appeared on 4.2.1988. He deposited dues of rent with interest and cost of suit on 25.11.1988. The declaratory decree was obtained by the plaintiff/landlord on 9.2.1989 i.e. during the pendency of the present suit and after the deposits were made by the tenant.

After getting the ex-parte decree, the plaintiff filed an amendment application claiming his right in the suit property.

The eviction suit was initially filed in the capacity of mortgagee on the ground that the plaintiff had acquired interest in the suit property as the original owner had failed to redeem the mortgage. The defendant though claimed rival title in the suit property, however, deposited the entire dues of rent so as to protect himself from eviction from the suit property. The protest/condition put by him before the SCC Court was that the deposited money would be paid to the plaintiff only after his rights in the suit property are determined.

Prior to the filing of the instant suit, he was depositing rent under Section 30 of the Act. The protest raised by the plaintiff regarding entitlement of the plaintiff to receive rent cannot make the deposits conditional to entail eviction of the defendant within the meaning of Section 20(4) of the Act.

The object of Section 20(4) of the Act has been discussed by this Court in Sheo Murti Gupta (supra). It was held that the very intention of the deposit under Section 20(4) of the Act is to protect tenants from unwarranted eviction on the mere premises that the tenant had committed default in payment of rent due to the landlord. To obviate such a hazardous ordeal sub-section (4) of Section 20 was enacted but with a clear intention that the tenant shall deposit the amount of rent, costs of the suit, interest etc. in the Court unconditionally so that it may be paid to the landlord.

In the instant case, the tenant advanced a condition that the rent shall be kept in deposit in the Court and shall not be paid to the petitioner till he is found to be owner/landlord based upon his claim to the suit property. The question regarding ownership of the plaintiff or the defendant to the suit property is pending before the Civil Court. However, in order to protect him from ordeal of eviction, the defendant deposited the entire dues of rent for its payment to the landlord though he has raised protest that he was not entitled to receive the same.

The deposits made by him are, therefore, held valid deposits, the eviction decree could not have been passed.

Both the courts below have erred in coming to the conclusion that on account of the condition put by the tenant while making the deposit as per Section 20(4), he was not entitled to benefit of the said provision.

As discussed above the estoppel under 116 of the Evidence Act would not operate against the defendant/tenant and, therefore, the defendant is entitled to claim benefit of Section 20(4) of the Act.

The protest raised by the defendant cannot be said to make the deposits unconditional. It is held that the landlord would be entitled to receive the money even if his suit is dismissed.

The eviction decree dated 14.2.2011 passed by the SCC Court namely the Civil Judge (Senior Division), Mathura in SCC suit No. 43 of 1987 and the order of affirmation of the revisional court namely the Additional District Judge, Court No. 2, Mathura dated 5.2.2016 in SCC Revision No. 10 of 2011 are hereby set aside. The SCC Suit No. 43 of 1987 is dismissed.

However, as the petitioner has not been declared owner till date and, therefore, in order to protect the occupation of the petitioner/tenant, without prejudice to his rights seeking title in the suit property it is directed that he shall continue to deposit the rent regularly month by month in the Court below by filing a proper application under Section 30 of the Act. The plaintiff landlord would be entitled to withdraw the money on an application moved by him. Alternatively, it is open for the petitioner/tenant to tender rent directly to the plaintiff/landlord who shall issue rent receipts as a proof of payment. It shall be a regular payment @ Rs. 2,000/- per month commencing from 1.7.2016 onward payable on 10.7.2016 till the rights of the parties are decided by the Civil Court. The petitioner, even if succeeds would not be entitled to ask for refund of the amount paid by him to the plaintiff/landlord for use and occupation of the building. Apart from this, the entire decreetal amount shall be deposited, if not already, by the petitioner/tenant before the Court below within a period of six weeks from today and the plaintiff/landlord will be entitled to withdraw the said money.

It goes without saying that this Court has not entered into the merits of the rival claim of title of the parties. Any observation made herein above would not come in the way of the parties for establishing their rights in a Competent Court of law.

With the above directions and observations, the petition is allowed.

 
Order Date :- 30.5.2016
 
B.K.							(Sunita Agarwal, J.)