Shri Ramsingh Baliramji Sengar vs Govind Bapurao Deshmukha
2017 Latest Caselaw 3760 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 279 of 2003


 Ramsingh son of Baliramji Sengar,
 aged 61 years,
 resident of Pandharkawada,
 Tq. Kelapur, Distt. Yavatmal.                .....           Appellant.
                                                            Org. Deft.


                                   Versus


 Govind son of Bapurao Deshmukh,
 aged about 43 years,
 occupation - Agriculturist,
 resident of Pandharkawada,
 Tq. Kelapur,
 Distt. Yavatmal.                             .....        Respondent.
                                                           Org. Plff.


                                *****
 Mr. A. M. Ghare, Adv., for the Appellant.

 Mr. S.P. Dharmadhikari, Senior Adv., with Mr. Rohan Joshi, Adv.,
 for the respondent.




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                                   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

questions of law:-

"I. Whether denial of the appellant of the right of Respondent to recover rent as an assignee of original landlord Bapurao Deshmukh would be said to be denial of title of Respondent to attract provisions of Section 111 (g) of the Transfer of Property Act?

II. Whether the statutory rights given to any person, such as plea of adverse possession raised by appellant would be held to be a ground available for landlord for invoking provisions of Section 111 (g) of the Transfer of Property Act?

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III. Whether the following averment made by the appellant in his notice dtd. 29-11-1997 would infringe the provisions of Section 111 (g) of the Transfer of Property Act, thereby giving right to the respondent for alleged forfeiture of tenancy of the appellant:-

"As referred by you in your notice I am residing in the house approximately for last 30 years. The said house was never in your possession for last 30 years. I am residing in the said house with the permission of Shri Bapurao Deshmukh. You were never owner of this house. The electric meter in the said house is in my name and electric connection is in the name of Bapurao Deshmukh. No agreement at any point of time was entered between you and me in relation to the said house, hence, I do not recognize and identify you as owner of the said property. Till date you have not taken any objection in regards to my residence in the said house. Though you are aware that I am residing in the said house, for last 30 years, you have never intimated me or informed me that you are owner of the house. If you claim yourselves as owner, then as you were aware that I am residing in the house since last 30 years and as you have not taken any objection to my residence and as I am residing without your permission. Then in view of principles of adverse possession I am going to file a suit for declaration that I have become owner of the property."

None of the statements made in the entire notice referred to herein above would constitute a statement on behalf of the appellant of disclaimer of title which would

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attract provisions of Section 111 (g) of the Transfer of Property Act."

The aforesaid substantial questions arise in view of the

following facts:-

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.100/-. 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. According to the

plaintiff, the defendant was in arrears of rent for the period from 1st

January, 1996 to 28th February, 1997. On 26th March, 1997, the

plaintiff demanded the arrears by issuing a notice to the defendant.

Pursuant thereto, the defendant remitted rent for the period from 1st

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January, 1996 to 31st March, 1997 along with notice expenses of

Rs.100/-. Subsequent thereto, as the defendant was again in arrears

of rent, by notice dated 10th November, 1997, a demand for the same

was made. This notice was replied on 29th November, 1997 and a

dispute was raised as to relationship of landlord and tenant between

the parties. Hence, on 9th December, 1997, a notice under Section

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

came to be issued by the plaintiff. After withdrawing the proceedings

filed before Rent Controller, the plaintiff filed suit for possession.

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

challenging the ownership of the plaintiff and claiming himself to be

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

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was liable to be evicted. Hence, on 31st March, 2000, 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 A. M. Ghare, 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, the

plaintiff had never given any notice of attornment to indicate that

there was a relationship of landlord and tenant between the parties.

According to him, the notice dated 26th March, 1997 could not be

treated as a notice of attornment as it was not stated therein that the

plaintiff had become owner of the suit house. He referred to the

deposition of the plaintiff to urge that the defendant was never

intimated by the plaintiff that he had become the owner pursuant to

the partition dated 30th December, 1969. He submitted that no date

of commencement of tenancy was given by the plaintiff and payment

of arrears of rent of fifteen months to the plaintiff would not amount to

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acceptance of the plaintiff as the landlord. He urged that merely

because a plea of adverse possession was raised by the defendant,

that would not be a ground sufficient to forfeit his tenancy rights.

There was no equivocal denial of the plaintiff's title. In support of his

contentions, the learned counsel placed reliance on the decisions in

[1] C. Chandramohan Vs. Sengottaiyan (dead) by LRS & others

[ (2000) 1 SCC 451], and [2] Sheela & others Vs. Firm Pralhad Rai

Prem Prakash [ (2002) 3 SCC 375].

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

finding of fact not requiring interference. According to him, there was

no question of giving any notice of attornment, inasmuch as the

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plaintiff was always the landlord of the defendant. By responding to

the demand of arrears of rent as per Exh.56, the defendant confirmed

his status as a tenant and that of the plaintiff as his landlord. In fact,

the defendant had also paid notice charges of Rs.100/- on the ground

that the plaintiff had been unnecessarily inconvenienced. He

submitted that the title of the plaintiff was clearly denied in the

communication dated 29th November, 1997 and this denial of title was

not bona fide. The provisions of Section 111 (g) of the said Act were

clearly attracted as the defendant had renounced his character as a

tenant. By relying upon the decision of the Honourable Supreme Court

in The Godhra Electricity Co. Ltd. & another Vs. The State of

Gujrat & another [ (1975) 1 SCC 199], it was urged that the

subsequent pleadings of the defendant in his Written Statement

wherein he sought to substantiate the stand as taken in the

communication dated 29th November, 1997, were also required to be

taken into consideration. He, therefore, submitted that both the

Courts having held in favour of the plaintiff, there was no reason to

interfere with the concurrent findings of fact.

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.

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

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

the record. On 15th April, 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.28]. Prior thereto, on 26th

March, 1997, the plaintiff issued a notice to the defendant demanding

arrears of rent for the period from 1st January, 1996 to 28th February,

1997. Interest at the rate of one per cent per month was also claimed.

The defendant in response to the aforesaid notice remitted a sum of

Rs.1600/- to the plaintiff as per the document at Exh.56. This

document was specifically addressed to the plaintiff and the defendant

also expressed regret for the inconvenience caused to the plaintiff on

account of the delayed payment. Thereafter, as the defendant again

remained in arrears of rent, another notice dated 10th November,

1997 [Exh.31] demanding arrears from 1st April, 1997 to 31st October,

1997 was issued. It is in response to this notice that the defendant in

his reply dated 29th November, 1997 [Exh.33] took the stand that the

plaintiff was not his landlord and that he was not liable to claim arrears

of rent. The defendant refused to recognize the plaintiff as owner of

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the premises and further stated that he would be approaching the

Court of law to seek a declaration that he had become owner by way of

adverse possession. It is thereafter that the plaintiff on 9th December,

1997 issued a notice [Exh.34] seeking to forfeit the tenancy of the

defendant under Section 111 (g) of the said Act. The plaintiff

thereafter on 22nd December, 1997 withdrew proceedings filed before

the Rent Controller and filed the present suit for possession.

09. The plaintiff examined himself at Exh.26 and 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 then examined his

father at Exh.40 who reiterated the aforesaid facts and asserted that

the suit house belonged to the plaintiff.

10. The defendant examined himself at Exh.50. In his

deposition, his reply filed in the Rent Control proceedings at Exh.72

was brought on record. He sought to reiterate his stand that the

plaintiff was not concerned with the suit premises and the defendant

had become the owner by way of adverse possession.

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

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

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

Raja Mohammad Amir Ahmad Khan Vs. Municipal Board of

Sitapur & another [AIR 1965 SC 1923]. 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 Vs. Rattan Chand & others [AIR 1994 SC 227]. 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 Vs. C. Ranganathan [AIR 1991

SC 492]. In Ashwinikumar Govardhandas Gandhi & another Vs.

Gangadhar Dattatraya Gadgil [ 1990 (1) Mh. L.J. 18], 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.

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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.28], the plaintiff had become owner of the suit

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

filed by the plaintiff on 15th April, 1997, it was asserted that he was

the owner of the suit house and landlord of the defendant. It is to be

noted that as per the notice at Exh.30, the plaintiff had demanded

arrears of rent for a period of fourteen months from the defendant.

The defendant without any demur paid the arrears of rent for a period

fifteen months and also paid a further sum of Rs.100/- while

expressing regret for the inconvenience caused to the plaintiff. It is to

be noted that there was no protest on the part of the defendant while

making this payment and though the arrears were demanded till the

end of February, 1997, the same were paid till March, 1997. The

defendant was further alive to the fact that non-payment of rent had

resulted in some inconvenience to the plaintiff and, therefore, paid

Rs.100/- in excess. The subsequent explanation sought to be tendered

by the defendant that this payment was intended to be made to the

plaintiff's father is clearly afterthought in the wake of the clear demand

for the arrears and the unequivocal acceptance of the same by the

defendant. This conduct of the defendant is sufficient to establish the

fact that there existed relationship between the plaintiff and the

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defendant as landlord and tenant.

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

that basis that on 10th November, 1997 [Exh.31] that he demanded

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

October, 1997 with interest. It is in reply dated 29 th December, 1997

given by the defendant [Exh.33] 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 9 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 that the

plaintiff was not his landlord and his father Bapurao was a necessary

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party in the suit for eviction.

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. Thus, the stand taken in the reply dated 29th

December, 1997 [Exh.33] was further amplified in the defendant's

deposition.

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

status of the plaintiff as owner and landlord. 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

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by adverse possession was without substance and clear afterthought is

obvious from his own conduct of paying arrears of rent of fifteen

months in April, 1997. The ratio of the decisions in Sheela & others as

well as C. Chandramohan [supra] does not support the case of the

appellant. In fact, after paying arrears of rent till March, 1997, the

aspect of estoppel comes into play. 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

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

possession. The substantial questions of law stand 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. The

denial of title being clear and unequivocal, his tenancy was rightly

terminated under Section 111 (g) of the said Act.

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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 Ghare, learned counsel for the appellant,

seeks continuation of the interim relief for a period of six weeks. This

request is opposed by the learned counsel for the respondent. As the

interim relief was operating since 2003, the same is continued for the

period of six weeks from today. It shall cease to operate automatically

thereafter.

Judge

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