Niranjan Lal vs Lala Ram
2022 Latest Caselaw 3113 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Second Appeal No. 75/1998

1. Niranjan Lal (since deceased) S/o Shri Pyare Lal Data, R/o
Bhagwati Sadan, Swami Dayanand Marg, Alwar (Rajasthan)
1/1. Vijay Data S/o late Shri Gangadeen Data R/o Bhagwati
Sadan, Swami Dayanand Marg, Alwar (Rajasthan)
1/2. Daya Kishan Data S/o Late Shri Niranjan Lal Data R/o 7
Shubham Enclave, Jamna Lal Bajaj Marg, Jaipur (Rajasthan)
                                                         ---- Plaintiff-Appellant
                                   Versus
Lala Ram S/o Shri Nathuram, Mohalla Sheo Lal Pura, Behind
Suganabai Ki Dharamshala, Alwar
                                                  ----Defendant-Respondent


For Appellant(s)         :     Mr. M.M. Ranjan, Sr. Advocate with
                               Mr. Amol Vyas
For Respondent(s)        :     Mr. R.K. Mathur, Sr. Advocate with
                               Mr. Ram Dayal



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

JUDGMENT RESERVED ON                                 : 05/04/2022
JUDGMENT PRONOUNCED ON                               : April _13th_, 2022
BY THE COURT:

1. Appellant-Plaintiff-Landlord(hereinafter referred as "Plaintiff")

preferred this second appeal under Section 100 CPC, assailing

judgment and decree dated 24-10-1997 in Appeal No.21/1996,

passed by Additional District Judge, No.3 Alwar dismissing appeal

and affirming the judgment and decree dated 18-7-1994 passed

by Civil Judge (Senior Scale) Alwar, in Civil Suit No.165/1985

whereby plaintiff's suit for eviction of tenant from tenanted shop

and recovery of rent was dismissed.

(2 of 13) [CSA-75/1998]

2. It appears from the record that plaintiff purchased the rented

shop through registered sale-deed dated 10-9-1984 and instituted

present eviction suit on 22-4-1985 on ground of denial of title

invoking provisions of Section 13(1)(f) of the Rajasthan Premises

(Control of Rent and Eviction) Act, 1950 (hereafter `the Rent

Act'). Plaintiff stated in the plaint that he purchased the rented

shop from partnership firm M/s.Vijendra and Vijendra and since

the defendant was tenant in rented shop, he has become the

tenant of plaintiff. It was claimed that partnership firm namely

M/s.Vijendra and Vijendra has informed defendant vide notice

dated 29-9-1984 about transferring of rented shop to plaintiff

through registered sale deed. That apart plaintiff himself issued

legal notice dated 29-9-1984 to defendant informing about the

purchase of rented shop and asking him to pay the rent. Since in

sale deed itself the plaintiff was allowed to recover arrears of rent

falling due against defendant, therefore, rent was claimed from 1-

10-1983. It was averred that defendant vide reply notice dated 5-

12-1984 disputed the sale-deed of plaintiff as well as denied title

of the plaintiff though admitted himself to be the tenant. It was

averred that since conduct of defendant of denial of title of

plaintiff has not been waived and the defendant is estopped by

virtue of Section 116 of the Evidence Act to dispute the title of

plaintiff, therefore, he is liable to be evicted.

3. Defendant filed written statement on 2-8-1985. the

defendant in his written statement did not dispute the plaintiff to

be landlord subject to proof of purchasing the rented shop from

M/s.Vijendra and Vijendra. The defendant took a defence that

since he was tenant in rented shop of Deva Lal, through rent note

(3 of 13) [CSA-75/1998]

dated 1-1-1980, Deva Lal informed him that he sold rented shop

to partnership firm M/s.Vijendra and Vijendra, hence, the

defendant became tenant of the partnership firm M/s.Vijendra and

Vijendra and pay rent to its partner namely Ramesh. Now the

plaintiff as well as one person Vijendra have informed vide notice

dated 29-9-1984 that rented shop has been sold by Vijendra

Kumar. The defendant went in dilemma since landlord and owner

of the rented shop was partnership firm M/s.Vijendra and

Vijendra, and plaintiff claimed to have purchased the rented shop

from Vijendra Kumar, therefore, the defendant deposited arrears

of rent in the court under Section 19A of the Rent Act in the name

of partnership frim M/s.Vijendra and Vijendra. The defendant by

way of reply notice dated 5-12-1984 has just asked the plaintiff to

clarify that from whom he purchased the rented shop and this

askance/ seeking clarification may not be treated as denial of title.

4. On basis of pleadings of parties, the trial court framed four

issues. Plaintiff examined himself and two other witnesses and

exhibited documents. Defendant also examined himself and

exhibited documents.

5. Considering evidence of witnesses of both sides and

exhibited documents the trial court on Issue No.1, regarding non

payment of rent from 1-10-1983, since defendant did not produce

any document i.e. as money order receipt, or notice for bank

account of landlord prior to depositing rent in court on 17-5-1984,

came to the conclusion that although defendant committed first

default benefit of first default was given, but the plaintiff was not

entitled to evict the defendant, and decided the issue as such.

(4 of 13) [CSA-75/1998]

Issue No.2, regarding defendant's notice dated 5-12-1984

(Ex.3) not admitting the plaintiff his landlord, the trial court

considering oral and documentary evidence came to the

conclusion that the defendant sought clarification from plaintiff

that as to from whom he purchased the shop in question, since

the plaintiff gave contradictory information to defendant of

purchasing shop from Vijendra Kumar, while the real owner/

landlord of the shop in question was M/s.Vijendra and Vijendra,

because initial owner/ landlord was Devalal who sold the shop to

M/s.Vijendra and Vijendra, to whom defendant was paying rent

through Ramesh Chand. Further Vijendra Kumar also in his

individual capacity sent notice informing about sale of his shop to

the plaintiff and not on behalf of the firm, therefore, the trial court

concluded that plaintiff had not denied the title of plaintiff but he

sought correct information about the fact whether shop has been

purchased from M/s.Vijendra and Vijendra firm or from Vijendra

Kumar in person, as such the issue No.2 of denial of title was

decided against plaintiff.

Issue No.3, regarding rent @ Rs.140/- per month due from

1-10-1983, the trial court considered the fact that rent was fixed

by the court on 23-11-1985 treating the same to be due from 1-

10-1983 and the defendant deposited the same in the name of

M/s.Vijendra and Vijendra under Section 19A of the Rent Act.

Since the defendant deposited the rent under Section 19A of the

Rent Act without following the due procedure it was held that he

committed default in paying rent for more than six months and

deposited the same after determination by the court, however,

(5 of 13) [CSA-75/1998]

benefit of first default was given to defendant. Therefore, the trial

court concluded that no rent was due against defendant.

Consequently the suit was dismissed vide judgment dated

18-7-1994 as the plaintiff failed to prove that the denial of title on

the part of defendant was intentional and not bonafide, however,

the plaintiff was declared entitled to receive the rent deposited by

defendant.

6. First appeal challenging the said judgment by plaintiff,

finding no illegality or perversity in the impugned judgment of the

trial court, came to be dismissed on 24-10-1997. Hence, this

second appeal.

7. This court on 20-4-1998 framed following substantial

questions of law:-

(i) Whether notice by one of the partners of the firm for attornment is sufficient to show that the firm has transferred property and the tenant is bound by such notice?

(ii) Whether landlord is not entitled for a decree of eviction when tenant makes title questionable and whether putting a question or doubting the title, is not denial of a title?

(iii) Whether the action of the tenant in allowing the plaintiff to withdraw the rent deposited in court vide order dated 1-11-1986 amounted to admissions that plaintiff was his landlord?

(iv) Whether finding of the trial court is sustainable when the question of default and issue No.1 has been decided in favour of plaintiff and contradictory finding has been given while deciding issue No.2 about denial of title?

(v) Whether by virtue of finding of landlord defined in Rajasthan Premises (Control of Rent and Eviction) Act, 1950 plaintiff is not landlord and tenant is estopped from denying or challenging the title of plaintiff?

8. Heard learned counsel for parties and perused impugned

judgment passed by the trial court as affirmed by the first

appellate court, as also record of the case.

(6 of 13) [CSA-75/1998]

9. Counsel for appellant submits that by reply notice dated 5-

12-1984 as well as defendant's pleadings in written statement it is

a clear case of denial of title of plaintiff by the defendant. He

submits that by virtue of 116 of the Evidence Act, the defendant is

estopped from challenging title of the plaintiff, although the

plaintiff is deriving the title from erstwhile landlord. Counsel

placed reliance on Bismillah Be Vs. Majeed Shah [(2017)2

SCC 274] to argue that during continuance of the tenancy the

tenant is estopped from challenging the title of landlord. The

judgment in case of Vinay Eknath Lad Vs. Chiu Mao Che

[(2019)20 SCC 182] was also relied wherein the Apex Court

held that in a landlord-tenant suit, the landlord is not required to

prove his title in the subject property. Reliance has also been

placed on a judgment in Mukesh Kumar Garg Vs. Naveen

Bansal, SBCWP No.24441/2018 decided on 19-3-2021,

wherein this court held that tenant is estopped from challenging

status of landlord claiming the gift deed to be sham transaction.

10. Counsel for defendant supported impugned judgments and

relied upon Govindraju Vs. Mariamman [(2005)2 SCC 500],

wherein the Apex Court held that re-appreciation of evidence/

interference with findings of fact is permissible only when High

Court comes to a conclusion that findings recorded were perverse

i.e. based on misreading of evidence or based on no evidence;

Christopher Barla Vs. Basudev Naik [(2005)9 SCC 207],

wherein the Apex Court held that finding of fact based on evidence

on record did not deserve interference by High Court in second

appeal; Reliance has also been placed on Dalip Singh Vs.

Bhupinder Kaur [(2018)3 SCC 677], wherein the Apex Court

(7 of 13) [CSA-75/1998]

held that High Court erred in setting aside concurrent findings of

both courts.

A perusal of Section 13(1(f) of the Rent Act shows that the

denial of title has been defined as under:-

"The tenant has

(i) renounced his character as such, or

(ii) denied the title of the landlord, and

(iii) the letter (i.e. landlord) has not

(a) waived his right or

(b) condoned the conduct of the tenant"

In view of aforesaid provisions it is clear that the tenant has

not renounced his character nor he denied the title of the landlord

and simply sought clarification about the ownership of landlord in

view of two contradictory notices dated 29-9-1984 sent by plaintiff

and Vijendra Kumar.

11. This court on careful perusal of reply notice dated 5-12-1984

(Ex.3) as well as fact findings record by two courts below in

relation to this notice, finds that defendant had sought

clarification/ explanation from plaintiff as to whether he purchased

the rented shop from real owner/ landlord of the rented shop. The

defendant never disputed his character and status as tenant in

rented shop. In written statement the defendant merely asked the

plaintiff that since rented shop was belonging to Devalal, who

transferred rented shop to M/s.Vijendra and Vijendra, and plaintiff

and Vijendra Kumar through their respective notices dated 29-9-

1984 have not referred the fact that partnership firm M/s.Vijendra

and Vijendra has transferred rented shop to plaintiff, rather a

contradictory information has been given that rented shop has

been sold/ transferred by Vijendra Kumar. Even the sale deed was

not sent to the defendant. Due to such confusion, the defendant

(8 of 13) [CSA-75/1998]

has given reply notice dated 5-12-1984 in bonafide manner asking

to clarify the fact that from whom the plaintiff has purchased the

rented shop. On perusal of written statement, as a whole, this

court finds that defendant has not categorically disputed or denied

the title of plaintiff.

Since in the present eviction suit ground of default was also

involved, the trial court determined provisional rent under Section

13(3) of the Rent Act, the defendant followed the order in letter

and spirit and deposited rent in the name of plaintiff. Further the

rent deposited by defendant under Section 19A of the Rent Act in

the court, has been withdrawn by plaintiff, to which defendant

agreed and did not object. It is not in dispute that defendant

never disputed his status as tenant in the rented shop. It appears

that since plaintiff derived his title/ ownership of rented shop from

erstwhile landlord, but it was not clarified that he purchased the

rented shop from partnership firm M/s.Vijendra and Vijendra, nor

copy of sale deed was supplied to defendant, nor this fact was

specifically narrated in both notices dated 29-9-1984, therefore,

the defendant fell in confusion and dilemma about the ownership

of rented shop of plaintiff.

It is settled proposition of law that if plaintiff claims

relationship of landlord and tenant on the basis of derivative title,

the defendant tenant may ask to clarify the derivative title. The

intention of defendant in asking plaintiff to prove his derivative

title does not seems to be malafide and in given facts and

circumstances of the case it appears to be bonafide. Such

proposition of law has been expounded by the Hon'ble Supreme

(9 of 13) [CSA-75/1998]

Court in Bismillah Be Vs. Majeed Shah (supra) in para No.25,

which reads thus:-

"25. Law relating to derivative title of the landlord (lessor) and challenge, if made, to such title by the tenant (lessee) during subsistence of tenancy in relation to demised property is fairly well settled. Though by virtue of Section 116 of the Evidence Act, 1872, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/ lessee is entitled to challenge the derivative title of an Assignee/ Vendee of the original landlord (lessor) of the demised property in an action brought by the Assignee/ Vendee against the tenant for his eviction from the demised property under the Rent Laws. This right of a tenant is, however, subject to one caveat that the tenant/ lessee has not attorned to the Assignee/ Vendee. In other words, if the tenant/ lessee pays rent to the Assignee/ Vendee of the tenanted property then it results in creation of an attornment between the parties which, in turn, deprives the tenant/ lessee to challenge the derivative title of an Assignee/ Vendee in the proceedings."

In case of J.J. Lal Pvt Ltd. Vs. M.R. Murli [(2002)3 SCC

98] the Apex Court held that in case of eviction on ground of

denial of title by tenant the burden remains on landlord to prove

the same and that such denial by tenant was not bonafide. In case

of Sheela Vs. Firm Prahlad Rai Prem Prakash [(2002)3 SCC

375] the Apex Court held that if the tenant makes a bonafide

question as to how title came to vest in landlord, the same cannot

be treated to be as denial of title.

In such factual and legal scenario, this court finds that both

courts below have not committed any illegality or jurisdictional

error in declining to grant decree for eviction in favour of plaintiff

on ground of denial of title against the defendant.

12. As far as substantial questions of law (i), (ii), (iii), (iv) and

(v) as framed by this court are concerned, all stand answered in

negative against the appellant according to discussion made

(10 of 13) [CSA-75/1998]

herein above. In facts of the case, it is not a case where Vijendra

Kumar issued notice dated 29-9-1984 disclosing himself to be

partner of M/s. Vijendra and Vijendra. There is no material

available on record to show that at any point of time, either on

behalf of partnership firm M/s. Vijendra and Vijendra or its any

partner in that capacity informed the defendant about the sale of

rented shop to plaintiff. Indisputably, the defendant was tenant of

partnership firm. In absence of such information from and on

behalf of the partnership firm, rather a contradictory information

by the plaintiff and Vijendra Kumar, through their respective

notices dated 29-9-1984, does not give rise to substantial

question of law No.1. According to legal proposition doubting

derivative title of appellant landlord by the tenant and asking for

clarification that too without renouncing his status as tenant may

not be treated as denial of title. The principle of estoppal

enunciated under Section 116 of the Evidence Act, has no

application in the situation involved in the present case. Since the

defendant tenant did not renounce his status as tenant and

agreed for the provisional determination as also agreed for

withdrawal of rent by the appellant, therefore, the issue of default

and effect of withdrawal of rent by appellant landlord do not

adversely affect the defence of tenant that he never denied the

derivative title of appellant intentionally or deliberately, rather

such conduct tenant substantiate his defence accepting the

appellant as landlord. Thus, other substantial questions of law also

stand answered against the appellant. Consequence is that the

appellant is not entitled to evict the respondent tenant on the

ground of denial of title, as the required ingredients in law as per

(11 of 13) [CSA-75/1998]

Section 13(1)(f) of the Rent Act are not satisfied in the present

case.

The Apex Court in Damodar LaL Vs. Sohan Devi [(2016)3

SCC 78] held that "even if the finding of fact is wrong, that by

itself will not constitute a question of law. The wrong finding

should stem out of a complete misreading of evidence or it should

be based only on conjectures and surmises. The safest approach

on perversity is the classic approach on the reasonable man's

inference on the facts. To him, if the conclusion on the facts in

evidence made by the court below is possible, there is no

perversity. If not, the finding is perverse. Inadequacy of evidence

or a different reading of evidence is not perversity."

When two courts below, on appreciation of evidence of both

parties and on close scrutiny of respective pleadings and intention

of defendants, have declined to pass a decree for eviction on

ground to denial of title, this court while exercising powers under

Section 100 CPC, does not think it just and proper to re-

appreciate evidence as a whole to draw a different conclusion than

courts below. Findings of fact is the province of courts below, and

once the same are based on appreciation of evidence well within

their jurisdiction and do not suffer from any perversity, no

interference is required by the High Court under Section 100 CPC.

In such view of the matter, substantial questions of law have been

considered and answered in negative against the appellant.

13. Both courts below have come to a concurrent finding that

there was no denial of title by tenant and the said issue has been

rightly decided against plaintiff. Counsel for plaintiff has not been

able to prove their case or to point out any perversity or make out

(12 of 13) [CSA-75/1998]

any substantial question of law in respect of the judgments passed

by the trial court as also the appellate court. The conclusions of

courts below are based on findings of fact. The Hon'ble Supreme

Court in the case of Kondiba Dagadu Kadam Vs. Savitribai

Sopan Gujar [(1999)3 SCC 722] has held that the concurrent

findings of facts even if erroneous cannot be disturbed by the High

Court in exercise of the powers under section 100 CPC. This

proposition is well established. Findings of fact based on

appreciation of evidence are the province of the trial court and the

first appellate court.

14. In case of Umerkhan Vs. Bismillabi [(2011)9 SCC 684]

Hon'ble Supreme Court has propounded that if a second appeal is

admitted on substantial question of law, while hearing second

appeal finally, can re-frame substantial question of law or can

frame substantial question of law afresh or even can hold that no

substantial question of law involved, but the High Court cannot

exercise its jurisdiction of Section 100 CPC without formulating

substantial question of law.

15. In facts and circumstances of the case the judgments relied

upon by appellant plaintiff Vinay Eknath Lad Vs. Chiu Mao Che

(supra), Mukesh Kumar Garg Vs. Naveen Bansal, (supra)

and Bismillah Be Vs. Majeed Shah (supra) as argued are not

applicable to facts of the instant case and are not of any help to

appellants. Rather the case of Bismillah Be Vs. Majeed Shah

(supra) supports the case of defendant wherein it was held that

the action of tenant to challenge derivative title of landlord cannot

be treated as denial of title.

(13 of 13) [CSA-75/1998]

16. Consequently, the second appeal is without any force and the

same stands dismissed.

17. Stay application and any other pending application(s), if any,

also stand(s) disposed of.

18. Record of courts below be sent back forthwith.

(SUDESH BANSAL),J

Arn/75

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