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Tej Bhan Madan Vs. 2nd Additional District Judge, Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 5661 of 1979
Judge
Reported inAIR1980All320
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3; Evidence Act, 1872 - Sections 116
AppellantTej Bhan Madan
Respondent2nd Additional District Judge, Allahabad and ors.
Advocates:K.L. Grover, Adv.
DispositionPetition dismissed
Excerpt:
.....tenant that is the defendant attorned to g and paying the rent to g the landlord, treating him as sole landlord - defendant is estopped from contending that the plaintiff is not the sole landlord. (ii) 'at the beginning of the tenancy' - interpretation - section 116 of evidence act, 1872 - relationship of the landlord and tenant established between the tenant and the successors-in-interest upon the latter's acquiring the interest of the original landlord. - - when, therefore, the plaintiff sent a notice to the defendant after the sale deed in her favour, the defendant asked the plaintiff to prove her title, but she failed to do so. the suit was bad for her non-joinder. the plaintiff had no right to maintain the suit, as she had failed to satisfy the defendant that she was the..........is directed against the aforesaid decree and order.2. shortly stated, the plaint case was that one gopi nath agrawal was the landlord of the premises in question and the petitioner was his tenant. by means of a sale deed dated 3-1-1972 the plaintiff purchased the accommodation. on the purchase of the property, both the transferor and transferee served notices on the defendant informing him of the transfer the transferee also demanding arrears of rent. the defendant denied the title of the transferee (the plaintiff) in a written reply sent to her. thereupon, the plaintiff served a notice dated 23-4-1973 terminating the tenancy of the defendant. the defendant neither paid the arrears of rent, nor vacated the accommodation, and hence the suit.3. the suit was contested by the petitioner on a.....
Judgment:
ORDER

A.N. Verma, J.

1. This petition arises out of a suit filed by respondent No. 3 Kumari Chhaya Gupta for the ejectment of the petitioner from a house No. 7/3 Shambhoo Barracks, Allahabad. The suit was decreed by the trial court, in the Revision filed by the petitioner, the decree of the trial court has been affirmed by the learned District Judge by an order dated 26-8-1976. This writ petition is directed against the aforesaid decree and order.

2. Shortly stated, the plaint case was that one Gopi Nath Agrawal was the landlord of the premises in question and the petitioner was his tenant. By means of a sale deed dated 3-1-1972 the plaintiff purchased the accommodation. On the purchase of the property, both the transferor and transferee served notices on the defendant informing him of the transfer the transferee also demanding arrears of rent. The defendant denied the title of the transferee (the plaintiff) in a written reply sent to her. Thereupon, the plaintiff served a notice dated 23-4-1973 terminating the tenancy of the defendant. The defendant neither paid the arrears of rent, nor vacated the accommodation, and hence the suit.

3. The suit was contested by the petitioner on a variety of grounds. Briefly, the defence was that originally, one Shambhoo Lal Jain was the owner of the property. Shambhoo Lal Jain was succeeded by his widow Shrimati Rajul Devi and son Dhoom Chand. One Mainavati Jain held a decree for money against Dhoom Chand. In execution of her decree, Mainawati Jain purchased the share of Dhoom Chand in the property in dispute, though she was not able to get possession over the property through Court as required under the law. No sale certificate was issued to her by the Executing Court. Mainawati Jain, therefore, had no right to transfer the property. The purported transfer by sale made by Mainawati Jain in favour of Gopi Nath Agrawal on 15-7-79 was without any legal effect. Title to the house, therefore, did not pass to Gopi Nath Agrawal. However, on account of acts of fraud and misrepresentation practised by Gopi Nath Agrawal, the defendant was made to believe that Gopi Nath Agrawal was the sole landlord and consequently the defendant began to pay the entire rent to Gopi Nath Agrawal from the date of the said transfer. Gopi Nath Agrawal legally did not become the fullowner of the properly as Rajul Devi had half share in the property, in any case. When, therefore, the plaintiff sent a notice to the defendant after the sale deed in her favour, the defendant asked the plaintiff to prove her title, but she failed to do so. Shrimati Rajul Devi was a necessary party to the suit. The suit was bad for her non-joinder. The plaintiff had no right to maintain the suit, as she had failed to satisfy the defendant that she was the original owner and landlady.

4. Having regard to the nature of the suit, it was tried as a small cause by the learned Judge Small Cause Court, Allahabad. The property in dispute is situate in the Cantonment, Allahabad. The suit for ejectment is regulated by the provisions of U.P. Act No. III of 1947 in view of the Notification issued by the Central Government on 3-4-72 making the provisions of U.P. Act No. III of 1947 applicable to the Cantonments in Uttar Pradesh. One of the grounds upon which the suit for ejectment could be filed was denial of the title of the landlord (see Section 3 (f) of U.P. Act No. III of 1947).

5. The trial court framed the necessary issues and upon a consideration of the oral and documentary evidence on record, reached the following conclusions:--

1) The defendant had, after the transfer of the property in favour of Gopi Nath Agrawal, attorned to him throughout the period during which Gopi Nath Agrawal was the owner of the house in dispute. The defendant recognised him as the sole landlord and paid to him alone the whole of the rent due in respect of the said house;

2) The defendant had clearly and categorically denied the title of the plaintiff.

6. On the aforesaid findings the trial court decreed the plaintiff's suit for ejectment as well as for recovery of Rs. 150/-as arrears of rent as also pendente lite and future damages for use and occupation at the rate of Rupee 1/- per day.

7. Aggrieved by the aforesaid decision, the defendant filed a Revision under Section 25 of the Provincial Small Cause Courts Act, but without any success. The learned District Judge concurred with the findings given by the trial court and dismissed the plaintiff's suit. The defendant thereupon filed a Revision under Section 115 of the Code of Civil Procedure in this Court which was dismissed on 18-7-79 on the ground that the same was not maintainable. Thereafter, the petitioner filedthis petition.

8. Having heard learned counsel for the parties at some length, I am clearly of the view that this writ petition has no merit, and that the suit of the plaintiff-respondent has rightly been decreed by the courts below.

9. Both the courts below have upon aconsideration of the voluminous documentary evidence arrived at the concurrent conclusion that the petitioner had clearly attorned to Gopi Nath Agrawal. The trial court has adverted to the positive evi' dence led by the parties including admissions made by the defendant pointing out to the unmistakable conclusion that throughout the period during which Gopi Nath Agrawal remained the owner of the iproperty under the sale deed executed in his favour by Mainawati Jain, the defendant treated Gopi Nath Agrawal as his sole landlord and paid the entire rent to him regularly without any objection. It is obvious that if Gopi Nath was the sole landlord vis-a-vis the defendant, upon the transfer of the house in favour of the plaintiff, she stepped into Gopi Nath Agrawal's shoes and became the sole landlady.

10. The contention of the learned counsel for the petitioner, however, was twofold. He first submitted that there was evidence on record to show that the interest of Shrimati Rajul Devi in the property in dispute as owner of half share therein never extinguished, and that, therefore, the plaintiff, at best, got the share of Dhoom Chand only. She was, therefore, not the sole owner and landlady of the property in dispute.

11. The second submission on this point was that the fact that the defendant had attorned to Gopi Nath Agrawal and that the defendant had paid rent to GopJ Nath Agrawal was of no avail to the plaintiff inasmuch as the provisions of Section 116 of the Evidence Act which could have estopped the defendant from denying the title of his landlord could not legally apply, the same being available only in regard to the landlord who first admits the tenant and not to the transferees or successors-in-interest of the landlord.

12. Having given the matter my best consideration, I am of opinion that neither of the two contentions has any substance. So far as the first contention is concerned, the learned District Judge as well as the trial court have rightly observed that the question as to whether the plaintiff is thesole owner of the property in dispute or not is not strictly relevant or important for disposing of the suit. The only point to be considered was whether the plaintiff was the sole landlady of the defendant. Even if it be assumed that there are other owners of the property besides the plaintiff, if it is found that Gopi Nath Agrawal was the sole landlord, the suit of the plaintiff would be entitled to succeed irrespective whether or not there are other co-owners of the property. In any case, once it is held that the defendant had attorned to Gopi Nath Agrawal the defendant would be estopped from challenging the title of the plaintiff as the sole landlady. The first contention raised by the petitioner's counsel is, therefore, not acceptable.

13. Coming to the second contention counsel for the petitioner strongly relied on Section 116 of the Evidence Act and contended that on the facts found by the courts below, the said provisions were not attracted. It was submitted that Section 116 of the Evidence Act applies only in regard to that landlord, who first let out the property to the tenant and to the successors and transferees of the landlords. Counsel laid particular emphasis on the words 'at the beginning of the tenancy', and urged that these words clearly indicated that the principle of estoppel embodied in Section 116 of the Evidence Act, is limited in its application only to the state of things when the property is first let out by the original landlord. I do not agree. There is no warrant for construing the words 'at the beginning of the tenancy' as implying only the point of time when the tenant was first let into the property. These words, in my view, do not exclude from their purview cases of attornment. In relation to the successors-in-interest of the original landlord equally the provisions of Section 116 are available if the tenant attorns to the successors-in-interest. Qua such successors the words 'at the beginning of the tenancy' must be deemed to refer to the relationship of landlord and tenant which was established between the tenant and the successors-in-interest upon the latter's acquiring the interest of the original landlord. The view which I am taking finds some support from the decisions reported in the case of Sital Prasad v. Badri Prasad (AIR 1923 All 53) and Parameswar Lal Agarwalla v. Dalu Ram Jalan (AIR 1957 Assam 188 (192)).

14. Furthermore, even if it be assumed that Section 116 of the Act does not apply in its strictness to the case in hand, inmy judgment, the principle of estoppel would still apply in regard to tenant who has by payment of rent or otherwise attorned to the successors-in interest of the original landlord. There is good authority for the proposition that the principle of estoppel enshrined in Section 116 of the Act is not the only kind of estoppel which may arise between a landlord and his tenant and that Section 116 is not exhaustive. In Krishna Prosad Lal v. Baraboni Coal Concern Ltd. , it has been held that Section 116 does not profess to deal with all kinds of estoppel which may arise between a landlord and tenant. The same view has been taken in some other cases also (See AIR 1957 Assam 188 (192); AIR 1945 Bom 399 and AIR 1959 Pat 562 (567)).

15. I am clearly of the view that the defendant having attorned to Gopi Nath Agrawal and having treated him as his sole landlord is estopped from contending that the plaintiff, who has only stepped into shoes of Gopi Nath Agrawal, is not the sole landlord. The courts below have rightly held that the plaintiff is the sole landlady, and that the suit is not bad for mis-joinder of Shrimati Rajul Devi. In the courts below, an attempt was made to get over the effect of the defendant having attorned to Gopi Nath Agrawal by trying to demostrate that the attornment was as the result of fraud and misrepresentation practised by Gopi Nath Agrawal. Both the courts below have rejected this plea, which is undisputably purely one of fact. Counsel for the petitioner made no attempt to show that the said finding of the courts below is wrong.

16. The result of the above discussion, therefore, is that the courts below rightly held the plaintiff to be the sole landlady entitled to bring the suit by herself.

17. The other submission of the learned counsel for the petitioner was that the finding of the courts below that the defendant had denied the title of the plaintiff, was erroneous in law. Learned counsel submitted that where the tenant merely asserts that there are co-lessors other than the plaintiff, it cannot be said to have denied the title of the landlord. Learned counsel for the petitioner placed reliance for this submission on a case reported in 1975 Ren CJ 149.

18. I am prepared to assume that where the tenant merely asserts that there are other co-lessors than the plaintiff there is no denial of title. However, in the present case, the situation is very different. The defendant had not merely contented himself by asserting that there were other co-owners of the property, but had clearly and categorically asserted, time and again, that neither Mainawati Jain nor Gopi Nath Agrawal, nor the plaintiff were the owners of the accommodation in dispute. In reply (vide Annexure '3' to the writ petition) sent by the defendant to the plaintiff's notice, the defendant asserted that Shrimati Mainawati Jain had no right to sell the property to Gopi Nath Agrawal, and if Mainawati Jain had done that, no right, title or interest passed to Gopi Nath Agrawal and that consequently, Gopi Nath Agrawal was also not competent to transfer the property to the plaintiff. (See paragraph 11 of the said reply). Again in paragraph 14 of the said reply, it was asserted that no title had vested in the plaintiff as Gopi Nath Agrawal himself had acquired no interest in the property under the sale deed executed in his favour by Mainawati Jain. In paragraph 15, it was asserted that the plaintiff had failed to establish that he was the rightful owner of the property. It was asserted that Gopi Nath Agrawal, the predecessor-in-interest of the plaintiff, had fraudulently extracted money from the defendant by falsely representing himself to be the owner of the property.

19. The same stand has been reiterated in the written statement. In my judgment, the allegations made by the defendant in the reply to the notice in regard to the title of the plaintiff clearly amounted to denial of plaintiff's title, which the plaintiff had not waived. The denial was deliberate, unequivocal and emphatic. The plaintiff had promptly taken exception to that denial, and, on its basis, served another notice on the defendant determining his tenancy on that ground. The decision of the courts below, therefore, that the defendant had denied the title of the plaintiff which the plaintiff had not waived or condoned is perfectly correct and is fully justified by the evidence on record.

20. The result of the aforesaid discussion is that this petition fails and is dismissed. There will be no order as to costs. The petitioner is, however, granted three months' time to vacate the accommodation. He will hand over vacant possession of the accommodation to the landlady within this period of three months.


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