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Maharajsingh and anr. Vs. Prem NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 213 of 1972
Judge
Reported inAIR1980MP117
ActsTransfer of Property Act, 1882 - Sections 105, 106, 107 and 111; Registration Act, 1908 - Sections 17(1) and 49; Evidence Act, 1872 - Sections 115; Court-fees Act, 1870 - Sections 7
AppellantMaharajsingh and anr.
RespondentPrem NaraIn and ors.
Appellant AdvocateP.N. Kelkar, Adv.
Respondent AdvocateK.N. Gupta, Adv.
DispositionAppeal dismissed
Cases Referred(see Mst. Hirabai v. Jiwanlal
Excerpt:
- - the defendants in a joint written statement, denied the tenancy as well as its renewal branding ex. 1 rent note is admissible in evidence that it discloses a monthly tenancy, and that as per the contract between the parties, a mere demand for possession was legally suffici-ent to determine the tenancy, it, however, went mainfestly wrong in holding further that the tenancy stood determined by forfeiture under section 111(g) of the transfer of property act as well. bereft of merits as it is, the argument must fail. 1) was considered a thoroughly unreliable witness. 1, there is contract in terms contrary to the operative part of section 106. at this stage, i may mention just as well that the supreme court decision in v......his title thereto asserting that they are the real owners thereof. he also claimed arrears of rent.the defendants in a joint written statement, denied the tenancy as well as its renewal branding ex. p. 1 rent note as a piece of forgery and claiming the premises as their ancestral property of which they have been enjoying possession as of right since 1933. the trial court, however, substantially upheld the plaintiff's case and decreed eviction of the defendants holding that the tenancy being at will, no notice was necessary to put an end to it. the only result of the appeal filed by the defendants was that while confirming the decree, the appellate court held that ex. p. 1 rent note is admissible in evidence that it discloses a monthly tenancy, and that as per the contract between.....
Judgment:

S.J. Surana, J.

1. The original parties to the suit giving rise to this second appeal were Shrilal, the plaintiffs and Ma-harajsingh and Ramcharan, the defendants. All of them expired at one stage or the other of this litigation. Claiming to be the owner-landlord of the accommodation in question which is situated in Ward No. 3 (Aswar) of village Jait-pur Tehsil Lahar, District Bhind, Shrilal sought eviction of Maharajsingh and Ramcharan therefrom. They are real brothers. The plaintiffs case was that in 1950 or so, he had orally inducted the defendants on the suit premises as monthly tenants at Rs. 2/- per month as rent. Later on. there was some dispute about rent which was resolved by a fresh eon-tract of tenancy under Ex. p. 1 rent note dated 20-12-1963, with the result that the defendants became his monthly tenants at Rs. 3/- per month as rent from that date on an express condition that they shall vacate the premises on demand. On 20-12-1967, he made a demand on them to vacate the accommodation which they not merely declined to do but also disclaimed his title thereto asserting that they are the real owners thereof. He also claimed arrears of rent.

The defendants in a joint written statement, denied the tenancy as well as its renewal branding Ex. p. 1 rent note as a piece of forgery and claiming the premises as their ancestral property of which they have been enjoying possession as of right since 1933. The trial Court, however, substantially upheld the plaintiff's case and decreed eviction of the defendants holding that the tenancy being at will, no notice was necessary to put an end to it. The only result of the appeal filed by the defendants was that while confirming the decree, the appellate Court held that Ex. p. 1 rent note is admissible in evidence that it discloses a monthly tenancy, and that as per the contract between the parties, a mere demand for possession was legally suffici-ent to determine the tenancy, It, however, went mainfestly wrong in holding further that the tenancy stood determined by forfeiture under Section 111(g) of the Transfer of Property Act as well. For. although the disclaimer was there alright and of the origin before the filing of the suit, the plaintiff did neither allege nor prove that he had given any notice in writing to the defendants of his intention to determine the lease on that score.

2. In this appeal by the legal representative of the defendants it is again being reiterated that the finding about the relationship of landlord and tenants between the plaintiffs and the defendants respectively is vitiated for want of any legal evidence to support it. To buttress the argument it is submitted that the rent note fix. p. 1 was not admissible in evidence and that even its execution has not been proved let alone by both the defendants. Bereft of merits as it is, the argument must fail.

3. Taking the first limb first it is abundantly clear from the tenor of Ex. p. 1 'that it purports to create a monthly tenancy at Rs. 3/- per month as rent making the same determinable on a mere demand for possession. It is no doubt unregistered that not being one covered by Section 17(1)(d) of the Indian Registration Act, its registration was not compulsory. It does not come within the mischief of Section 107 of the Transfer of Property Act either. Nor would it be invalid for want of its execution by the lessor (Mt. Radhahai v. N. J. Nayadu, AIR 1951 Nag 285). There is, therefore, no question of Ex. p. 1 being hit by Section 49 of the just mentioned Act.

4. Coming to the second limb of the argument, it may be recalled that thedefendants were brothers, Maharaj-singh being the elder. Execution of the rent-note dated 20-12-1963 by Maharaj-singh stands satisfactorily proved from the evidence of Premnarayan (PW. 1), son of the deceased plaintiff Shrilal as also Janki (PW. 3) and Ramnath (PW. 6) who were bodily present to witness the same. The latter two have indeed attested the rent-note. The defendant sought to meet this evidence by a bare denial of Maharajsingh as DW. 1 that he did neither execute nor put his thumb, mark on Ex. P. 1. If the Courts below preferred that plaintiff's evidence it is because Maharajsingh (DW. 1) was considered a thoroughly unreliable witness. To avoid the ordeal of inconvenient questions in cross-examination he feigned deafness only to discard it when his counsel cautioned him that by so doing he was damaging nobody's cause except his own. Even so, he indulged in disowning his written statement altogether as also his very close and material relationship with Mantai (DW. 5) for what else if not to demonstrate that he need not be taken seriously for in the next breath he controverted the denials. No attempt was made to substantiate the grave but vague allegation that Ex. p. 1 does not bear thumb-mark of Maharajsingh by calling in aid evidence of an expert.

5. A second glance at Ex. p. 1 should suffice to show that it was executed byMaharajsingh as Karta of the joint family consisting of self and Ramcharan. That apart, Ramcharan (DW. 2) has admitted in paragraph 6 of his deposition that...And he was undisputedly residing in the accommodation in question since 20-12-1963, along with his elder brother. What more was then needed to reach the conclusion that the defendants were monthly tenants of the plaintiff having agreed to pay Rs. 3/- per month as rent and were contract bound to vacate the premises at the will of the plaintiff on a mere demand for possession. For termination of such a tenancy (Survival of which depends entirely on the shear pleasure of the lessor) no notice under Section 106 of the Transfer of Property Act was necessary for the simple reason that here in Ex. p. 1, there is contract in terms contrary to the operative part of Section 106. At this stage, I may mention just as well that the Supreme Court decision in V. Dhanpal v. Yesodai Am-mal. AIR 1979 SC 1745, would not be attracted inasmuch as the provisions of theM. P. Accommodation Control Act, 1961, are not applicable to the accommodation in question.

6. Once it is settled that the relationship between the plaintiff and the defendants was that of a landlord and tenants respectively which came to an end on 20-12-1967, when the demand of possession was met with a hostile assertion of title of the premises by the defendants, the next question which has hitherto escaped attention is: Are not the defendants in the circumstances estopped from disputing the title of their landlord? It is, however, argued that the plaintiff's suit essentially was for 3 declaration of his title to the accommodation in question coupled with the relief for its possession. He had indeed paid ad valorem court fees on the market value of the property. Even so the Courts below disputed it of treating it to be a suit by the landlord for eviction of the tenants. The argument is based on a misapprehension of the pleading. The plaintiff's suit was for ejectment of the defendants the claim for possession being founded on the allegation of tenancy and refusal of the defendants to vacate alter the determination of the tenancy and not on the basis of title. In such a case, the defendant would be certainly estopped from raising a question of title. The fact that the plaintiff's paid ad valorem court-fees could not preclude him from invoking the rule of estoppel against the defendants (see Mst. Hirabai v. Jiwanlal, AIR 1955 Nag 134). What with all above and the proved fact that a demand for possession was indeed made as alleged, eviction from the premises in question was bound to be decreed as also the claim for Rs. 38/- as arrears of rent against the defendants.

7. In the result, the appeal fails and is dismissed with costs. The respondent's cost shall be borne by the appellants. Hearing fee Rs. 200/-.


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