Sharashchandra Shridharrao ... vs Govind Bapurao Deshmukh
2017 Latest Caselaw 3736 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                         Second Appeal No. 63 of 2003


 Sharashchandra son of Shridharrao Malvi,
 aged 54 years,
 occupation - Advocate,
 at Post Jyotiba Fuley Ward,
 Pandharkawada,
 Tq. Kelapur,
 Distt. Yavatmal.                  .....                      Appellant.
                                                            Org. Deft.


                                   Versus


 Govind son of Bapurao Deshmukh,
 aged about 46 years,
 occupation - Agriculture,
 at Post Akhada Ward,
 Pandharkawad,
 Tq. Kelapur,
 Distt. Yavatmal.                             .....        Respondent.
                                                           Org. Plff.


                                 *****
 Mr. R. D. Bhuibhar, Adv., for the Appellant.



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 Mr. S.P. Dharmadhikari, Senior Adv., with Mr. N.K. Shukul, Adv.,
 for the respondent sole.

                                      *****




                                 CORAM :          A.S. CHANDURKAR, J.

               Date on which
               arguments were heard :             13th June, 2017


               Date on which the
               the judgment is
               pronounced                     :   29th June, 2017


 J U D G M E N T:

01. This appeal filed under Section 100 of the Code of Civil

Procedure, 1908, has been heard on the following substantial question

of law:-

"Whether the respondent was entitled to file the suit for eviction against the appellant without obtaining prior permission of the rent controller under C.P. Berar Letting of of Premises & Rent Control Order,1949?"

The aforesaid substantial question arises in view of the

following facts:-

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02. The appellant is the original defendant and the respondent

is the original plaintiff. The parties are referred to as per their status

before the trial Court. The plaintiff claims to be the owner of

constructed portion on Plot Nos. 109/2, 110 and 111/1, situated at

Pandharkawada. It is the case of the plaintiff that he received this

property in a partition that took place in the year 1969. The suit house

was let out to the defendant on monthly rent of Rs.175/-. The

agreement of lease between the parties was oral. As the plaintiff was

in need of accommodation, he initiated proceedings against the

defendant before the Rent Controller for seeking permission to issue

quit notice under provisions of Clause 13 (3) of the C. P. & Berar

Letting of Premises & Rent Control Order, 1949. In those proceedings,

the plaintiff filed various documents to indicate his ownership of the

suit house. Despite this, the defendant on 12 th April, 1997 issued a

communication to the plaintiff and his father calling upon them to

inform him as to whom the rent from the month of March, 1997 should

be paid. A reply was given by the plaintiff on 19 th April, 1997 informing

the defendant that he alone was the owner of the suit property and

that rent should be continued to be paid to him as before. The

plaintiff's father also replied to the aforesaid notice informing the

defendant that the plaintiff alone was the owner of the suit house.

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Thereafter, on 12th May, 1997, the defendant issued another

communication denying the ownership of the plaintiff over the suit

house. The plaintiff, therefore, on 11th November, 1997 issued a

further demand notice for arrears of rent to the defendant from 1 st

March, 1997. In reply to the aforesaid notice, the ownership of the

plaintiff was denied and it was stated that he had become owner by

adverse possession. Hence, on 19th December, 1997, a notice under

Section 111 (g) of the Transfer of Property Act, 1882 [for short "the

said Act"] was issued by the plaintiff. After withdrawing the

proceedings filed before the Rent Controller, the plaintiff filed suit for

possession of the suit house.

03. In the Written Statement filed by the defendant, the case of

the plaintiff was denied. It was pleaded that the plaintiff had never

told the defendant that he was the owner of the suit house. A further

stand was taken that the defendant was not the tenant of the plaintiff

and it was also denied that the plaintiff was the owner of the suit

house. The defendant then pleaded that he had become owner of the

suit house by adverse possession.

04. The parties led evidence. The trial Court on consideration of

the same held that the plaintiff had proved his title and that by

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challenging the ownership of the plaintiff and claiming himself to be

owner of the suit house by way of adverse possession, the defendant

was liable to be evicted. Hence, on 29 th June, 2002, the trial Court

decreed the suit.

The appellate Court on re-appreciation of the evidence on

record affirmed the decree passed by the trial Court. It was held that

denial of title by the defendant was in clear terms and, therefore, the

plaintiff had rightly invoked the provisions of Section 111 (g) of the

said Act. Being aggrieved, the defendant has filed the present appeal.

05. Shri R. D. Bhuibhar, learned counsel for the defendant,

submitted that both the Courts erred in accepting the case of the

plaintiff that the defendant's right as a tenant stood forfeited in view of

provisions of Section 111 (g) of the said Act. According to him, for

invoking the said provisions, a clear and unequivocal denial of title by

the tenant was necessary. The same was, however, absent in the

present case. The denial of title, if any, was only incidental in nature

and the pleadings in the Written Statement could not be treated as

clearly denying the plaintiff's title. He submitted that there was no

relationship of landlord and tenant between the plaintiff and the

defendant and, therefore, there was no question of defendant's

tenancy being forfeited. He referred to the exchange of notices

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between the parties to buttress his stand in that regard. He sought to

draw support from the ratio of the judgments of the Honourable

Supreme Court in [1] Raja Mohammad Amir Ahmad Khan Vs.

Municipal Board of Sitapur & another [AIR 1965 SC 1923], [2]

Rkundan Mal Vs. Gurudutta[ (1989) 1 SCC 552], [3] Munisami

Naidu Vs. C. Ranganathan [AIR 1991 SC 492], and [4] Guru

Amarjit Singh Vs. Rattan Chand & others [AIR 1994 SC 227]. It

was, therefore, urged that the defendant's right of tenancy was not

liable to be forfeited and as a consequence thereof, the necessary

permission of the Rent Controller before filing the suit for eviction was

necessary.

06. On the other hand, Shri S.P. Dharmadhikari, the learned

Senior Counsel for the respondent, supported the impugned

judgments. According to him, it was clear from the tenor of various

communications issued by the defendant that he had denied the title

of the plaintiff as landlord, renounced his character as a tenant and

had thereafter set up title in himself by way of adverse possession. It

was submitted that the denial of title by the defendant was in clear

and unequivocal terms which aspect had been rightly considered by

both the Courts. He submitted that the tenancy of the defendant was

oral and finding in that regard recorded by both the Courts was a

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finding of fact not requiring interference. He submitted that the ratio

of the decision in Raja Mohd. Amir Ahmad Khan [supra] that was relied

upon by the learned counsel for the appellant, in fact, supported the

case of the respondent. He placed reliance upon the judgment of the

Division Bench of this Court in Ashwinikumar Govardhandas

Gandhi & another Vs. Gangadhar Dattatraya Gadgil [1990 (1)

Mh.L.J. 18] and submitted that there was no necessity of obtaining any

permission under the Rent Control Order if the suit for ejectment has

been filed after giving notice of forfeiture of tenancy. It was, thus,

urged that the appeal was liable to be dismissed.

07. I have heard the learned counsel for the parties at length

and with their assistance I have also perused the records of the case.

08. For answering the substantial question of law as framed, it

would be necessary to refer to certain documents which form part of

the record. On 27th March, 1997, the plaintiff initiated proceedings

before the Rent Controller for seeking permission to issue quit notice

to the defendant. In those proceedings, a copy of the Assessment List

maintained by the Municipal Council showing the plaintiff to be the

owner of the suit house was also filed [Exh.58]. The defendant on 12th

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April, 1997 issued a notice [Exh.59] to the plaintiff and his father in

which it was stated that he had received notice of the proceedings

from the office of Rent Controller and hence he sought information as

to who should be paid the rent from March, 1997. In response thereto,

the plaintiff's father issued a reply on 19th April, 1997 [Exh.60] in

which it was stated that the plaintiff was the owner of the suit house

which was occupied by the defendant as tenant. Therefore, there was

no reason for any question arising as to whom the rent should be paid.

The plaintiff on the same day also replied to the aforesaid notice

[Exh.62] reiterating the same facts and asserting that he himself was

the owner of the suit house. Thereafter, on 11th November, 1997

[Exh.66], the plaintiff issued a notice to the defendant stating therein

that he was in arrears of rent from March, 1997 onwards and hence

the same be paid to him. The arrears were accordingly demanded with

interest. This notice was received by the defendant [Exh.67]. The

defendant on 11th December, 1997 responded to the aforesaid notice

by his reply [Exh.68] and stated that he did not accept the plaintiff as

the owner of the suit house. According to him, since last twenty-two

years, the suit house was in his possession and the plaintiff had lost his

title. There was no reason to pay rent to the plaintiff. It is thereafter

that on 19th December, 1997 [Exh.69] that the plaintiff issued a

registered notice under provisions of Section 111 (g) of the said Act

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and informed the defendant that his tenancy had been forfeited on the

ground that he had set up a title in himself disregarding the ownership

of the plaintiff. The plaintiff thereafter on 22nd December, 1997

withdrew the proceedings filed before the Rent Controller and filed the

present suit for possession.

09. The plaintiff examined himself vide Exh.57. He deposed

that by virtue of oral partition in the year 1969, he had received the

suit property towards his share. He asserted his ownership and

deposed that the defendant was his tenant. The plaintiff examined

another witness - Purushottam Ghawade vide Exh.77.

10. The defendant examined himself vide Exh.81 and he

deposed that the plaintiff had never demanded any rent from him nor

was the same paid to him. He deposed about the exchange of notices

and stated that as per notice dated 11th December, 1997, he had

become owner of the suit house by adverse possession. In his cross-

examination, he stated that he had become owner by adverse

possession from 1st March, 1976. Another witness examined by the

defendant was one Vinayak Kukse vide Exh.89.

11. For the purposes of attracting forfeiture of tenancy, the

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disclaimer or repudiation of the landlord's title must be clear and

unequivocal. It should be made to the knowledge of the landlord -

Mohd. Amir [supra]. Similarly, an incidental statement per se would

not operate as forfeiture. Existence of the lease and jural relationship

of lessor and lessee is a pre-condition to invoke forfeiture under

Section 111 (g) of the said Act - Guru Amarjitsingh [supra]. It is also

well settled that a mere statement by the tenant that he was not

aware as to who was his landlord would not amount to denial of the

landlord's title - Munisamy Naidu [supra]. In Ashwinikumar [supra],

the Division Bench of this Court while considering provisions of the

Rent Control Order - vis-a-vis the provisions of Section 111 (g) of the

said Act held that permission of the Rent Controller would not be

necessary when the lease was sought to be determined by the manner

contemplated by Section 111 (g) of the said Act.

It is in the light of the aforesaid law and the evidence on

record that respective contentions would have to be considered.

12. As regards the jural relationship of the plaintiff and the

defendant as landlord and tenant, it can be seen that as per the

Property Card [Exh.58], the plaintiff had become owner of the suit

house pursuant to an oral partition. In the Rent Control proceedings

filed by the plaintiff on 27th March, 1997 [Exh.82], it was asserted that

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he was the owner of the suit house and landlord of the defendant. It is

after filing these proceedings that the defendant issued a notice on

12th April, 1997 [Exh.59] stating therein that rent till February, 1997

had been paid to the plaintiff's father and that as per the proceedings

filed before the Rent Controller, the plaintiff was shown as the

landlord. The defendant, therefore, sought clarification as to whom the

rent should be paid. Perusal of this communication indicates that the

only doubt that was harboured by the defendant was as to who his

landlord was. This notice was immediately replied both by the

plaintiff's father [Exh.60] and the plaintiff himself [Exh.62]. These two

replies in clear terms clarified to the defendant that it was the plaintiff

alone who was the landlord and of which fact he was well aware.

Reference was made to earlier payment of rent by the defendant to

the plaintiff. Even if it is assumed in favour of the defendant that he

thought that the plaintiff's father - Bapurao was his landlord, he was

informed by Bapurao himself that his son was the owner of the suit

house and also the defendant's landlord. The plaintiff's father's reply

at Exh.60 can also be treated as a notice of attornment to the

defendant informing him that the plaintiff alone was his landlord.

These replies and the defendant's silence thereafter clearly indicate

that he was content with the information received by him that the

plaintiff alone was his landlord. These documents are, therefore,

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sufficient to establish the relationship between the plaintiff and the

defendant as landlord and tenant.

13. Once it is found that the plaintiff was the landlord, it is on

that basis that on 11th November, 1997 [Exh.66] that he demanded

arrears of rent from the defendant for the period from March, 1997 till

October, 1997 with interest. It is in reply dated 11 th December, 1997

given by the defendant [Exh.68] that for the first time he challenged

the title of the plaintiff and came up with the stand that he was

occupying the suit house since last twenty-two years in an open and

hostile manner and against the consent of the plaintiff. On that basis,

it was stated that the plaintiff had no legal right to demand arrears of

rent. A reading of the entire notice clearly indicates the clear intention

of the defendant of not accepting the plaintiff as his landlord and

setting up title in himself. This is the first instance where the defendant

disputed the plaintiff's title and status as landlord.

14. After receiving this reply, the plaintiff sought to forfeit

tenancy rights of the defendant by issuing a notice on 19 th December,

1997 [Exh.69]. In the plaint, it was pleaded that the tenancy rights of

the defendant had been forfeited on account of denial of the plaintiff's

ownership. In his Written Statement, the defendant asserted thus:-

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"20. ......................................................................... ............Due to this reason the defendant cannot be a tenant of the plaintiff though the plaintiff received the property in dispute in the year 1969.

21. The defendant denies that the plaintiff is the owner of the house in dispute. The defendant denies the contention that the plaintiff gave the house in dispute to the defendant on rent. ...... Due to this reason the plaintiff has lost his right of ownership on the house in dispute by law of adverse possession and the defendant has become owner by adverse possession of the house in dispute described in paragraph no.19 of the written statement. ....."

From the aforesaid pleadings, it is clear that the defendant

in a clear and unequivocal manner denied the status of the plaintiff as

his landlord. He, in fact, claimed ownership in himself on the basis of

adverse possession. In his deposition at Exh.81, the defendant stated

that the plaintiff had no right to demand rent as the defendant had

become owner by way of adverse possession. He further asserted that

he had become owner of the suit house. This right was claimed from

1st March, 1976.

15. On consideration of the reply at Exh.68 dated 11 th

December, 1997, the Written Statement filed by the defendant and his

deposition, it is clear that he in clear and unequivocal terms denied the

right of the plaintiff as owner and landlord even prior to filing of the

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suit. This stand was specifically taken in the Written Statement and

was further sought to be proved by deposing about the same in his

evidence. The overall conduct of the defendant as can be gathered

from the aforesaid material can hardly be said to be an incidental

denial of the plaintiff's title. Not only has he specifically and in clear

terms denied the title of the plaintiff, but he has also set up title in

himself. That his claim of having become owner by adverse possession

was without substance and clear afterthought is obvious from his own

notice dated 12th April, 1997 [Exh.59] wherein he clearly stated that

since last twenty-one years, he was residing as a tenant in the suit

house. While the derivative title of a landlord can be challenged, there

is no legal basis for challenging the title of the plaintiff's father who,

according to the defendant, was his landlord. It is, thus, clear that

about six months' prior to filing of the suit for possession, the

defendant himself admitted his status as a tenant. His claim shortly

thereafter of having become owner by way of adverse possession on

account of his occupation for last twenty-two years is a defence which

is required to be stated merely to be rejected.

16. Thus, in the light of aforesaid material on record, there is no

legal basis, whatsoever, to accept the challenge raised by the

appellant. His right to tenancy was rightly forfeited by the plaintiff and

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both the Courts were, thus, justified in decreeing the suit for

possession. The substantial question of law stands answered by

holding that there was no necessity of obtaining prior permission of the

Rent Controller before filing the suit for eviction as the defendant's

tenancy stood forfeited under Section 111 (g) of the said Act.

17. In view of aforesaid discussion, the appeal is found to be

without any merit. The same is accordingly dismissed with costs.

18. At this stage, Shri Bhuibhar, learned counsel for the

appellant, prays for grant of three months' time to vacate the suit

premises. This request is not opposed by the learned counsel for the

respondent.

19. Subject to the appellant filing an undertaking in this Court

within a period of four weeks from today that he shall vacate the suit

premises by 30th September, 2017, time of three months is granted.

Judge

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