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Hashmat HusaIn Vs. Saghir Ahmad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberLetters Patent Appeal No. 27 of 1951
Judge
Reported inAIR1958All847
ActsTransfer of Property Act, 1882 - Sections 111(2) and 105; Uttar Pradesh Temporary Control of Rent and Eviction Act, 1947 - Sections 3
AppellantHashmat Husain
RespondentSaghir Ahmad and ors.
Appellant AdvocateB.C. Saxena and ;B.D. Gupta, Advs.
Respondent AdvocateM.H. Beg, Adv.
DispositionAppeal allowed
Excerpt:
.....by the appellant in this special appeal is that the allegation in the written statement of the rent suit to the effect that the plaintiff was not the sole owner of the property in suit but had only a share in it, the other share being owned by fayyaz alam, did amount to a denial of the plaintiff's title by setting up a title in another as well and entitled the plaintiff to eject the defendants from the hall. the terms 'lease',lessor' and 'lessee' are defined in section 105 of the transfer of property act thus :a lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered,..........by the appellant in this special appeal is that the allegation in the written statement of the rent suit to the effect that the plaintiff was not the sole owner of the property in suit but had only a share in it, the other share being owned by fayyaz alam, did amount to a denial of the plaintiff's title by setting up a title in another as well and entitled the plaintiff to eject the defendants from the hall. it is contended that the view of the learned single judge that such an allegation of the defendants did not amount to a denial of the plaintiff's title is wrong. for the respondents the decree of the learned single judge is tried to be supported on another ground too and it is that no decree for ejectment could be passed in view of section 3 of the u. p. control of rent and.....
Judgment:

R. Dayal, J.

1. This is a special appeal by a plaintiff against an order of a learned Single Judge allowing the second appeal of the defendants and dismissing his suit for ejectment.

2. One Abdul Hameed owned the three shops and hall in suit. On his death Saghir Ahmad and Fazal Ahmad took them on rent from his heirs. They executed a Qabuliyat in their favour. Hashmat Husain, the plaintiff, purchased these shops and hall along with another house from the heirs of Abdul Hameed on 7-8-1941, informed the two tenants about it and subsequently included a portion of the hall with their consent in his house and reduced the monthly rent. He filed a suit for recovery of rent against Fazal Ahmad and Saghir Ahmad--Suit No. 591 of 1943. They contested the suit and alleged in the written statement that one Fayyaz Alam was also a co-sharer in the proprietary right as his father Shaukat Husain was the co-owner of Abdul Hameed in respect of the shops and hall in dispute and that the plaintiff had purchased only the rights of the heirs of Abdul Hameed. During the pendency of the suit Fazal Ahmad died and his heirs were brought on the record.

3. Fayyaz Alam then filed a suit (No. 33 of 1944) claiming a declaration of his title to a half share of the property. This suit was filed against Hashmat Husain, the heir of Abdul Hameed, and the tenant Saghir Ahmad and others. The tenants tried to support Fayyaz Alam in that suit but it was dismissed and Fayyaz Alam's claim as a co-owner of the property was found to be untenable.

4. Basing his cause of action on the denial of the plaintiff's full ownership of the shops and hall under the tenancy of the defendants, Hashmat Husain instituted the present suit in 1945 for ejectment and arrears of rent. It was alleged in the plaint that theshops had fallen down due to rains and the plaintiff had taken over possession and built a room in their place and that the defendants were thereafter in possession of the hall only.

5. The defendants contested the suit on the grounds that the plaintiff was not the sole owner of the hall in dispute, that the notice of ejectment wasbad and that the defendants were not liable to be ejected. It was further pleaded that the plaintiff was not entitled to evict the defendants owing to the Rent Control Order.

6. The trial Court dismissed the suit for ejectment holding that the notice to quit was not a valid notice and that the tenancy had not been determined by any forfeiture as the alleged defendants' contention in suit No. 591 of 1943 did not amount to a denial of the plaintiff's title. The plaintiff appealed and the appellate Court allowed the appeal & decreed the suit for ejectment. Some of the defendants then filed a second appeal in this Court. The learned Single Judge allowed the appeal and dismissed the suit holding that the alleged statement of the defendants in their written statement in the previous suit for the recovery of arrears of rent was not a disclaimer as contemplated by Clause (g) of Section 111 of the Transfer of Property Act and that there had been no forfeiture of tenancy. The plaintiff has therefore filed this special appeal.

7. It is now no more in dispute that the plaintiff is the sole owner. The only question raised by the appellant in this special appeal is that the allegation in the written statement of the rent suit to the effect that the plaintiff was not the sole owner of the property in suit but had only a share in it, the other share being owned by Fayyaz Alam, did amount to a denial of the plaintiff's title by setting up a title in another as well and entitled the plaintiff to eject the defendants from the hall. It is contended that the view of the learned Single Judge that such an allegation of the defendants did not amount to a denial of the plaintiff's title is wrong. For the respondents the decree of the learned Single Judge is tried to be supported on another ground too and it is that no decree for ejectment could be passed in view of Section 3 of the U. P. Control of Rent and Eviction Act (III of 1947).

8. The relevant portion of Section 111 of the Transfer of Property Act is :

'A lease of immoveable property determines -

(g) by forfeiture; that is to say, -

(1) ........................... .;or

(2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or

(3) ..........................'

A lease of immoveable property is therefore determined on proof of the following facts ;

(1) the lessee's renouncing his character as such;

(2) such renouncement can be

(a) by setting, up a title in a third person; or

(b) by claiming title in himself.

9. The defendants did not in their written statement in suit No. 591 of 1943 set up a title in themselves. They did set up a title in a third person, namely, Fayyaz Alam, whom they alleged to be a co-owner of the property in suit. They also renounced their character as a lessee of the plaintiff when they alleged that they were not his tenants but were tenants of the plaintiff & Fayyaz Alam. The tenancy admitted by them was different from their actual tenancy under Hashmat Husain, the successor-in-interest of the heirs of Abdul Hameed from whom they had taken the tenancy of the shops and the hall.

It does not appear to us to be necessary for a lessee to deny that he was a lessee before the provisions of Sub-clause (2) of Clause (g) of Section 111 of the Transfer of Property Act would come in play. It isnot the denying of his being a tenant or a lesseewhich is an ingredient of this provision; it is the denial of the relationship of a particular lessee to a particular lessor with respect to a particular property which forms an ingredient of the aforesaid provision determining the lease. The terms 'lease', 'lessor' and 'lessee' are defined in Section 105 of the Transfer of Property Act thus :

'A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

The transferor is called the lessor, the transteree is called the lessee...............'

It follows from these definitions that the terms 'lease', 'lessor' and 'lessee' go together and in connection with a particular transaction would have reference only to the particular property covered by the lease, the particular person who transfers the right to enjoy that property and the person who accepts the transfer from such a transferor. In view of these definitions, a lessee would be said to renounce his character as such when he denies either that he holds that property as a lessee or states that he though a lessee of that particular property is not a lessee from the person who let it out to him. We are therefore of opinion that the lease in favour of the defendants was determined by forfeiture when the defendants alleged in their written statement in suit No. 591 of 1943 that the plaintiff was not their lessor, he having only a partial proprietary right in that property on account of another person, Fayyaz Alam also being a co-sharer thereof.

10. It has been strenuously urged that an allegation that the plaintiff is not the lull owner of the property leased out does not come within the expression 'setting up a title in a third person'. The expression, it is pointed out, really means 'setting up full title in a third person', or 'asserting that the plaintiff had no title to the property at all'. Reliance is placed in this connection on the case of Mallika Dassi v. Makhan Lal, 9 Cal WN 928 (A) and that of Abbakka Shetthi v. Seshamma, AIR 1915 Mad 85 (B), which just follow the former case. In the Calcutta case, the plaintiffs sued for a declaration of their title to a parcel of land and for a decree for ejectment alleging that they derived title from the sole owner of the property in suit.

They had sued the defendant-appellant previously for rent. She had resisted that claim for rent by putting them to the proof of their title by purchase and by denying that their predecessor-in-interest had anything more than a share in the property, the remainder being owned by the members of the joint Hindu family to which Tara Prasad Roy belonged. Tara Prasad Roy had sold the property to the vendor of the plaintiffs of that suit. This suit was dismissed as the plaintiffs were held to have failed to prove that Tara Persad alone used to receive the entire rent. It was therefore contended in the later suit that the defendant had forfeited her rights as a tenant by disclaimer of the title of the plaintiffs and of their predecessor and that she was on that account liable to be ejected as a trespasser.

It was contended in reply on behalf of the defendants that there had been no disclaimer of the title of the plaintiffs simply because the extent of the interest which their predecessor possessed in the land had been questioned. This contention was upheld. The Court considered the question to be of some nicety and of first impression. It was observed at page 931 :

'As we have already pointed out, in order to make a disclaimer sufficient, it must amount to adirect repudiation of the relation of landlord and tenant, a renunciation by the party of his character as tenant. It is difficult to see upon what principle it can be contended that a tenant disclaims the title of his landlord when he admits his title as such, but only questions the extent of his interest; in a case of thisdescription, the tenant does not, either expressly or by necessary implication, repudiate the tenancy or advance a claim to hold possession of the estate upon a ground inconsistent with the existence of the relations of landlord and tenant ................To constitute a disclaimer, there must be a distinct and unequivocal renunciation of the tenancy, and we are not prepared to extend the application of the doctrine to a case in which the tenant docs not set up a title to the whole in himself or a title to the whole inothers, but, merely questions to the extent of the interest of the plaintiff and his title to receive the entire rent.'

Their Lordships did not refer to the provisions of Section 111 of the Transfer of Property Act which does not speak of forfeiture of a lease or, a tenant's disclaiming the title of his landlord but speaks of the determining of the lease by forfeiture when a tenant sets up a title in a third person. The moment the tenant sets up title in a third person, whether to the extent of the whole or to the extent of a part, he does set up a title in a third person and therefore he becomes liable to ejectment as a result of the determination of the lease by forfeiture on account of his renouncing his character as a lessee.

11. In Vivian v. Moat, (1881) 16 Ch D 730 (C) a question arose whether the defendants had so disclaimed or repudiated the title of the plaintiffs as landlords of the property as to enable the plaintiffs to maintain the action for ejectment without giving a valid notice to quit. Prior to this case the defendants had not questioned the proprietary title of the plaintiffs but had only asserted that the plaintiffs had no right to raise the rent. Fry J. held that such a contention of the defendants suggested that the plaintiffs were not ordinary landlords of the estate but either lords of the manor or owners of some other right which gave them a title only to a customary rent, which alone they could demand and nothing more, and that such a suggestion was sufficient renunciation; and in support of his view referred to the observation of Mr. Baron Parke in the ease of Deo v. Stanion, (1836) 1 M and W 695 (D) :

'In order to make a verbal or written disclaimer sufficient it must amount to a direct repudiation of the relation of landlord and tenant or to a distinct claim to hold possession of the estate upon a ground wholly inconsistent with the existence of that relation, which by necessary implication is a repudiation of it.'

Earlier it had been observed by Mr. Baron Parke :

'A disavowal by the tenant of the holding under the particular landlord, by words only, is sufficient.'

The contention of the defendants in suit No. 591 of 1943 was certainly a distinct claim to hold possession of the shops and hall on the ground that the plaintiff alone could not eject them--a ground which was inconsistent with the relationship of a lessor and lessee between them and therefore, in view of the above observations of Mr. Baron Parke, amounted to repudiation of that relationship and consequently to the renunciation of their character as lessees of the plaintiff.

12. In the case of Kali Kishen Tagore v. Colam Ali, ILR 13 Cal 3 (E), Field J. observed with reference to the case of Vivian v. Moat (C).'

'We think that the ground of this decision rests mainly upon the relation of landlord and tenant, as it exists in England, where such relation depends upon contract, and that the principle of this case is not applicable to this country, where a different state oftilings prevails, In this country there are numerous tenures the rent of which cannot be raised, and the denial of the landlord's right to raise the rent is not necessarily a renunciation or disclaimer of his title as landlord.'

The contention of a defendant that the lessor cannot increase the rent of the lessee may not amount to the lessee's renouncing his character as such in view of some legal provisions limiting the right of the landlord to increase the rent or giving a right to the defendant to contest such a claim of the landlord. But in case there are no such legal provisions, the ordinary relationship of landlord and tenant in this country also gives the landlord a right to ask the tenant to agree to pay enhanced rent or to quit.

The case of Vivian v. Moat (C) may not be an authority in this country on the question of a landlord's right to enhance the rent as the system of land tenures here is different; but the principle enunciated therein as to what can be considered to be sufficient renunciation of the landlord's title so as to amount to forfeiture appears to be of universal application and there appears to be no reason why it should not be followed here. According to that principle such a repudiation is to be inferred whenever something is alleged which is inconsistent with the existence of that relationship according to the law in force.

13. In the case of ILR 13 Cal 248 (F) there was no repudiation of the title of the landlord. The dispute had been about the nature of the tenancy.

14. In Maharaja of Jeypore v. Rukmani Pattamahdevi, AIR 1919 PC 1 (G), their Lordships of the Privy Council observed at page 4 :

'The doctrine of Vivian v. Moat (C) does not apply to Indian tenures such as the present.'

This only means that a tenant's questioning the right of the landlord to enhance rent does not amount to the repudiation of the landlord's title. Their Lordships referred to the cases of ILR 13 Cal 3 (E), ILR 13 Cal 248 (F) and Vithu v. Dhondi, ILR 15 Bom 407 (H), which related to agricultural land for which special provisions existed.

15. In Krishna Prosad Lal v. Baraboni Coal Concern Ltd. , their Lordships of the Privy Council observed in connection with the provisions of Section 116 of the Indian Evidence Act :

'The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. Tt provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property.'

This supports our view that the character of a lessee is renounced the moment he denies that he is not a lessee from a particular lessor.

16. The eases of Shiam Behari v. Madan Singh : AIR1945All293 and Rukmani v. Ravaji, ILR 48 Bom 541: (AIR 1924 Bom 454) (K), are distinguishable. In the Allahabad case a portion of the land in suit was included in plot No. 2129. The rest of that plot belonged to Government. An earlier statement made by the tenant to the effect that the plot belonged to Government was not held to be a sufficient repudiation of the landlord's title with respect to the land in suit. In the Bombay case, the defendant had merely alleged that two persons claimed rent and the defendant did not know who was rightfully entitled and that he was prepared to pay rent to either of them as the Court directed. Such a contention was not held to amount to a repudiation of the landlord's title.

17. We are therefore of opinion that the lease in favour of the defendants was determined by forfeiture on account of their renouncing their character as lessees of the plaintiff by setting up a title in Fayyaz Alam, a third person.

18. The suit was instituted sometime in 1945, as it is suit No. 234 of 1945 of the Court of Munsif of Sambhal; but was pending when the U. P. Control of Kent and Eviction Act (III of 1947) is deemed to have come into force i.e. on the first day of October l946. Under Section 15 of the Act in a pending suit no decree for ejectment can be passed except on one or more of the grounds mentioned in Section 3. The clause of that section under which the plaintiff seeks to bring his suit is Clause (f) which is this :

'No suit shall, without the permission of the District Magistrate, bo filed in any civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds : .......

(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant'

It is contended for the defendants that they had not renounced their character as tenants and had not denied the title of the plaintiff landlord and therefore they cannot be evicted under this clause. We do not agree with this contention. The defendants renounced their character as such when they assorted that they were not the tenants of the plaintiff whose tenants they really were. They set up a different tenancy under the plaintiff and Fayyaz Alam. They also denied the title of the plaintiff inasmuch as they did not admit him to be the sole proprietor of the accommodation they were occupying.

The word 'title' in Clause (f) of Section 3 of the U. P. Control of Rent and Eviction Act must refer to the title of the landlord on the basis of which he can claim to eject the tenant and cannot be taken to refer only to proprietary rights in the accommodation which may be entirely immaterial so far as the right of ejectment is concerned. A person may be landlord even if the proprietary title to the accommodation does not vest in him. We are, therefore, of opinion that the ground mentioned in Clause (f) of Section 3 of the said Act exists in the present case and the ejectment of the defendants from the property in suit can be ordered on its basis.

19. In view of the above, we allow the appealwith costs throughout, set aside the order of thelearned Single Judge and confirm the decree passedby the first appellate Court ordering the ejectmentof the defendants from the premises detailed inthe plaint.


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