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Chhotey Lal and anr. Vs. Har Prasad - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2399 of 1957
Judge
Reported inAIR1964All82
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11
AppellantChhotey Lal and anr.
RespondentHar Prasad
Appellant AdvocateR.R. Agarwala, Adv.
Respondent AdvocateBaleshwari Pd., Adv.
DispositionAppeal allowed
Excerpt:
.....- earlier suit decides title of actual landlord - will act as res judicata as plaintiff filed suit as landlord. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established..........tenancy after serving a notice under section 106 of the transfer of property act and filed the present suit for their ejectment and recovery of arrears of rent 2. bath the defendants resisted the suit and denied the plaintiff's title. they alleged that he was not owner of the shop which really belonged to one smt. ram devi and that they were ram devi's tenants and derived their title from her. according to the defendants, har prasad had merely acted as the mukhtar-e-am of smt. ram devi but had usurped the title of the owner. during the pendency of the suit smt. ram devi applied for being added as a defendant. she alleged that she was the real owner and har prasad was not entitled either to eject her tenants or collect any rent from them. her application was rejected by the trial.....
Judgment:

S.S. Dhavan, J.

1. This is a tenant's second appeal from the decree for their ejectment passed by the Additional Civil Judge, Etawah. The facts are these. The plaintiff-respondent Har Prasad alleged in his plaint that he was the landlord or shop and had Eet it out on rent to the defendants Chotey Lal and Daya Ram that they had not paid any rent for about two years in spite of a notice of demand ana had made willful default; that the plaintiff had terminated their tenancy after serving a notice under Section 106 of the Transfer of Property Act and filed the present suit for their ejectment and recovery of arrears of rent

2. Bath the defendants resisted the suit and denied the plaintiff's title. They alleged that he was not owner of the shop which really belonged to one Smt. Ram Devi and that they were Ram Devi's tenants and derived their title from her. According to the defendants, Har prasad had merely acted as the Mukhtar-e-Am of Smt. Ram Devi but had usurped the title of the owner. During the pendency of the suit Smt. Ram Devi applied for being added as a defendant. She alleged that she was the real owner and Har Prasad was not entitled either to eject her tenants or collect any rent from them. Her application was rejected by the trial Court. This unfortunate decision resulted in multiplicity of litigation for Ram Devi was sabsequently compelled to file a separate suit against Har Prasad tor a declaration of her title to this shop and recovery or possession.

3. The trial Court held that a relationship of a landlord and tenant existed between the plaintiff and defendants who had made willful default in payment of arrears. Accordingly it decreed the suit, this decision was continued by the lower appellate Court and the defendants have now come to this Court in second appeal.

4. Mr. Raja Ram Agarwal learned counsel for the appellant urged only one point in support of this appeal. He contended that the question whether the plaintiff Har Prasad was the owner of the shop and entitled to eject the defendants had been decided in another suit filed by Smt. Ram Devi against him. This is suit No. 154 of 1954 which had been referred to above in her plaint Smt. Ram Davi alleged that Har Prasad had been herMukhtar-e-Am and authorised to let the accommodation and collect rent and do other acts on her behalf, but recently he had illegally assumed the rights of a owner and tiled a suit for ejectment against her two tenants. This was a reference to the present suit which has given rise to this second appeal. Smt. Ram Devi alleged in her plaint that she had applied for being made a party in that suit but her prayer had been rejected and she was compelled to file a separate suit to vindicate her .title against Har Prasad. This suit was decreed on 27-7-1954 by the trial Court which held that Smt. Ram Devi was the owner of the shop and Har Prasad had no right or title to it. Har Prasad's appeal was dismissed by the Civil Judge on 28-9-56 and his second appeal was dismissed by me on 14-12-1962.

5. Mr. R.R. Agarwal contends in this appeal tnat the decision in that appeal operates as res judicata in the present dispute. He relied on Explanation I to Section 11 C.P.C. which provides in effect that the 'former suit', the decision in which is invoked as res judicata, means a suit which has been decided prior to the suit in which the question of res judicata is raised whether or not it was instituted earlier. After hearing learned counsel for both parties I am of opinion that the decision in S.A. No : AIR1964All64 Har Prasad v. Mst. Ram Devi operates as res judicata in the present suit, the main question in issue in this suit is the title of Har Prasad as landlord. The defendants denied his title and claimed a tenant's title derived from Smt. Ram Devi. Section 11 enjoins that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The defendants are litigating under a tenant's title derived from Smt. Ram Devi. The plaintiff has denied that Ram Devi is the landlord. Therefore, the question whether Har Prasad or Smt. Ram Devi is entitled to recover rent from the defendants or eject them is substantially in issue in the present suit But this issue has already been decided by this Court in S. A. No : AIR1964All64 in which it was held that Ram Devi and not Har Prasad has the title to this shop. Both the plaintiff and the defendants were made parties to that suit, the decision is binding on them. Even if they had not been parties, the decision would operate as res judicata in this suit because the defendants derive their title from Smt. Ram Devi.

6. Mr. Baleshwari Prasad learned counsel for therespondent raised two objections against this view. First he contended that the present defendants are estopped from denying the title of Har Prasad who let out the accommodation to them. The very premise of this argument are wrong. When learned counsel argued that Har Prasad had let out the accommodation to the defendants, he assumed that he was the landlord and competent to enter into a contract of tenancy, which is the very question in dispute between the parties. The defendants have pleaded that Har Prasad was not the owner and they dealt with him, as the agent of the landlord and therefore there could not be any relationship of landlord and tenant between him and them. This question cannot be determined without deciding wheher Har Prasad had any title or capacity as landlord. But this issue had already been decided against him in the suit filed by Smt. Ram Devi against Mm. Theplaintiff and the defendants were parties to that suit ana the defendant in the present suit litigate as tenants 01 Ram Devi. They are, therefore, entitled to take a plea in defence which would have been taken by her and plead that the earlier decision operates as res judicata in the present suit.

Mr. Baleshwari Prasad however contended that any subsequent defect in the title of the plaintiff who had admitted the defendants to the tenancy does not entitle them to deny his status as their landlord. He relied on the observations of the Privy Council in Mr. Bilas Kunwar v. Desraj Ranjit Singh AIR 1915 PC 96. I do not think that the judicial Committee's remarks in that case help the plaintiff. Their Lordships enunciated the well-known principle of estoppel, incorporated in Section 116 of the Evidence Act, that a tenant cannot be permitted to deny the title of a landlord after having obtained a tenancy from him. In this case, the defendants never dealt with the plaintiff as a landlord but only as an agent of the real landlord. His action in admitting them to the tenancy of the accommodation was not that of a landlord but of an agent of the real owner. The rule of estoppel is always subject to the proviso that it never operates for the benefit of a person who was aware of the true facts and was not misled by any conduct of the party with whom he was dealing. The plaintiff all along knew that he was the agent of Smt. Ram Devi and that she acting through him admitted the defendants to the tenancy of the shop.

7. Learned counsel lastly contended that there is no finding by the Courts below that the defendants knew that they were admitted as tenants and the plaintiff was the agent of Smt. Ram Devi. There is hardly any substance in this argument, because the question whether the plaintiff acted as the agent of Smt. Ram Devi has been decided in the earlier suit to which both the plaintiff and the defendants were parties.

8. No other point was urged. The appeal is allowedwith costs and the plaintiff's suit for ejectment and recoveryof rent dismissed with costs. Before leaving this case Imust observe that the refusal of the trial Court to mawSmt. Ram Devi a party was erroneous and unnecessarily ledto multiplicity of litigation.


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