K.L. Pandey, J.
1. This appeal by the defendant 2 is directed against a decree declaring the plaintiff to be the owner of the disputed house, placing him in possession thereof and directing the defendant 2 to pay Rs. 720/- as damages for use and occupation of the house. The defendant 1 too has filed First Appeal No. 84 of 1968 against the decree so far as it relates to his eviction from the house. This judgment shall dispose of the two appeals.
2. The material facts, which are not now in controversy, are these. The house in dispute belonged to the defendant 2, who executed in favour of the defendant 3 a sale deed dated 26th December 1959, for an apparent consideration of Rs. 8.000/-. By a sale deed dated 5th December 1962, the defendant 3 sold the house to the plaintiff for Rs. 9,000/-. On that date, the defendant 1 was in possession of the house.
3. According to the plaintiff, he became by virtue of the sale deed dated 5th December 1962, the owner of the house, He claimed that he bona fide required the house for the residence of himself and the members of his family and that he had no other house of his own at Damoh which was reasonably suitable for such residence. Treating the defendant 1 as a tenant in occupation of the house, the plaintiff served upon him two notices to quit dated 1st May, 1964 and 6th July 1984 and thereby terminated his tenancy. Subsequently, on learning that the defendant 1 had colluded with the defendant 2 and was setting up the latter's title to the disputed house, the plaintiff served upon him yet another notice dated 8th April 1967 forfeiting the tenancy, The plaintiff claimed Rs. 2,160/- as damages either from the defendants 1 and 2 or from the defendant 3.
4. The defendant 3 admitted the material averments of the plaint, did not contest the plaintiff's claim and stated that he was unnecessarily impleaded as a party defendant.
5. The main contesting party was the defendant 2. According to him, the sale deed dated 26th December 1959 was a nominal transaction executed as a collateral security for a loan of Rs. 7,000/- and Rs. 1,000/- as interest thereon for three years, which was not intended to be acted upon, He further pleaded that it was verbally agreed between him and the transferee that, within 3 years, the latter would upon repayment of the loan, re-transfer the house. He also claimed that he was all along in possession of the house and that the defendant 1 was in its occupation as his tenant. He traversed all other averments in the plaint.
6. The defendant 1 pleaded that he was inducted as a tenant of the defendant 2, that he recognized the defendant 2 as his landlord and paid rent to him and that he was not liable to be evicted at the instance of the plaintiff. According to the defendant 1, it was in the year 1962 that a house belonging to one Abdul Kadir was allotted to him by the Rent Controlling Authority and the disputed house was likewise allotted to one R.S. Shrivastava, a marketing inspector, and thereafter the two allottees exchanged the houses thus allotted to them with the consent of the owners, The defendant 1 further claimed that, in 1965 the disputed house was allotted to him. In conclusion he stated that he was willing to pay rent to the plaintiff if he be found to be the owner of the house.
7. On the main point in controversy, the Additional District Judge found against the defendant 2. The Judge, however held that the defendant i took possession of the disputed house in the circumstances pleaded by him and that, in 1965, that house was actually allotted to him. According to the conclusions reached by the learned Judge, the plaintiff did not require the house for his residence as pleaded by him but the defendant 1 was liable to be evicted on the ground that the allotment order passed in his favour was illegal.
8. The main question for consideration in these appeals is whether the sale deed dated December 26, 1959 was, by agreement, a nominal transaction not intended to be acted upon and executed only to serve as collateral security for a loan. According to Ramjilal D. W. 5, the contracts relating to the sale and the loan of Rs. 7,000/- were settled in his own house with Ramdas P. W. 2, when none else was present. On this point, there is only the unsupported direct evidence of Ramjilal D. W. 5, which is contradicted by the evidence of Ramdas P. W. 2, What is more, Ramjilal D. W. 5 did not say in his evidence that there was any agreement to the effect that the sale would be nominal or that it would not be acted upon. On the other hand, he expressly stated that he had a right to obtain reconveyance of the house within 3 years upon payment of the amount (Para, 13). This statement militates against the plea that the sale was nominal or was not intended to be acted upon. Further, Ramjilal D. W. 5 admitted that, in July-August 1960, he had learnt that Ramdas P. W. 2 was trying to sell away the house. In view of that fact. Ramjilal D.W. 3 was expected, consistently with his present stand that the sale deed executed by him was not intended to be acted upon, to take appropriate steps to prevent Ramdas P. W. 2 from so doing. Against this, Ramjilal D. W. 5 approached Ramdas P. W. 2 and remained content with asking him why he was trying to sell the house before the expiry of 3 years as provided by the contract. Nay, on January 11, 1961, Ramjilal D. W. 5 admittedly executed in favour of Ramdas P. W. 2 two documents, Exs. P-7 and P-8, which contra-indicate that the sale deed was merely nominal. By Ex. P-7, Ramjilal D.W. 5 accepted making a payment of Rs. 240/- as twelve months rent, which !he had realised from the tenant, to Ramdas P. W. 2, to whom he acknowledged having sold the house by the deed dated December 26, 1959. By Ex. P-8, Ramjilal D. W. 5 purported to intimate to the tenant that the rent be paid to the transferee Ramdas P. W. 2. It would appear that, despite the sale deed executed by Ramjilal D. W. 5, he had continued to recover rents from the tenant. By these documents, he made amends and facilitated recovery of future rents by Ramdas P. W. 2. The explanation given by Ramjilal D. W. 5 that he executed these two documents, which were nominal only, on the insistence of Ramdas P. W. 2 with a view to inducing him not to sell the house before the expiry of 3 years is altogether unconvincing and appears to be one that has been improvised to explain away telling evidence, If, as now claimed, Ramdas P. W. 2 had no right or title to sell that house of large value and the house admittedly stood in danger of being sold away by him, we are satisfied that Ramjilal D. W. 5 would have behaved very differently.
9. Again, in view of the endeavours made by Ramdas P. W. 2 to sell the house, Ramjilal D. VV. 5 would have taken the earliest opportunity to repay the loan and obtain a recoveyance. But he admitted that, although he had money in 1962 and 1963, he made no endeavour whatsoever to do so and did not even serve on Ramdas P. W. 2 a notice of demand.
10. Further, Ramjilal D. W. 5 would not have remained inactive and inarticulate at least after knowing that the house had been sold to the plaintiff. At first, Ramjilal D. W. 5 resorted to a falsehood by saying that he did not know about the sale until election pamphlets were issued in the general elections of the year 1967. It is not without significance that, in reply to one of those pamphlets, he stated in Ex, P-15 dated February 4, 1967 that he had mortgaged the house with Ramdas P. W. 2. However, when his attention was drawn to his evidence given in Civil Suit No. 2-B of 1963 on October 22, 1963, he stated:
Even after knowing that Ramdas had sold the house, I did not give to Ramdas any notice. I continued to speak to him (about this) verbally. To the plaintiff also, I did not give any notice.
It would appear from his evidence (Ex. P-25) that he had claimed in that suit that the amount of loan was not repayable before the house was reconveyed. The claim was, however, decreed on October 24, 1963. Even thereafter, Ramjilal P. W. 5 took no steps to get the house reconveyed to him. In our opinion, the conduct is not consistent with the genuineness of the defence now made.
11. The claim that there was a real sale in favour of Ramdas P. W. 2 is vigorously attacked on the ground that there is no reliable evidence to show that he paid the consideration Rs. 8.000/- to Ramjilal; D. W. 5. The lower Court too has characterised the unsupported evidence of Ramdas P. W. 2 on the point to be unconvincing. In doing so, it did not duly consider the fact accepted by Ramdas P. W. 2 (Paragraph 3) and Ramjilal D. W. 5 (Paragraph 12) that they were on intimate terms. In our opinion, in appreciating the evidence, both direct and circumstantial, due regard must be had to that important fact, There is evidence to show, and Ramdas P. W. 2 also accepted, that he was not present when the sale-deed dated December 26, 1959, was executed by Ramjilal D. W. 5 and got registered by him. Ramdas P. W. 2 explained that, on that date, he had gone to the registration office but, on account of high fever, he paid the consideration Rs. 8.000/- to Ramjilal D. W. 5 and left the place. In view of the fact that the two were close friends, this should not be regarded as altogether incredible. In any event, Ramjilal D. W. 5 admitted receipt of full consideration in the sale deed and the burden lay heavily on him to explain the admission and prove non-receipt of consideration : Chandra Kanwar v. Narpat Singh (1907) ILR 29 All 184 (PC).
12. According to Ramjilal D. W. 5, he had asked Ramdas P. W. 2 for a loan of Rs. 7,000/- and the latter then stated that, since the amount was large, he would advance the loan if a sale deed of the disputed house be executed in his favour for Rs. 7.000/- principal and Rs. 1,000/-interest, repayable in 3 years. Continuing, Ramjilal D. W. 5 said that, about 8 or 10 days later, he, on his own, executed and got registered the sale-deed dated December 26,1959 without receiving any consideration and that, it was on January 16, 1960 that he called to his own house Ramdas P. W. 2, took Rs. 7,000/- from him, executed in his favour a promissory note for that amount and delivered the sale-deed to him. We : have mentioned elsewhere in this judgment that Ramjilal D. W. 5 claimed that none else was present when the earliest talk took place. The witness had, however, made a contrary statement in Ex. P-25 and named one Dwarka Prasad Tiwari to have been present on that occasion. He was not examined in this case, presumably because he would not have supported the defence. Again, we are unable to accept the argument that Ramjilal D. W. 5 was unlikely to have needed or taken two large amounts, Rs. 8,000/- on December 26, 1959 and Rs. 7,000/- on January 16, 1960, in quick succession. He admitted having taken a contract worth Rs. 30,000/- or Rs. 35,000/- and requiring for payment to workers Rs. 5,000/- or so every month. It is not, therefore, surprising that he raised these two sums at an interval of about three weeks. Further, if the loan of Rs. 7,000/- was given on interest terms for three years, one would expect those terms to be incorporated in the document evidencing the loan. Not only those terms are not there, but they are not also in the sale-deed. When asked to explain this, Ramjilal D. W. 5 had stated earlier as follows:
The consideration written in the sale deed is Rs 8,000/- but the disputed hand-note dated 16-1-60 is written for rupees 7,000/-. Why this is so I do not know. (Ex. P.-25).
In our opinion, the evidence of Ramjilal D. W. 5 on this point, which is wholly unsupported, is unnatural and unconvincing. As shown, his subsequent conduct is also inconsistent. We are, therefore, unable to accept that he has discharged the burden of showing that he did not receive the consideration for the sale-deed executed by him.
13. An endeavour was made to show that, on the date when the sale-deed was executed, the value of the house was Rs. 18,000/- or Rs. 19,000/-. On this point, there is only the ipse dixit of Ramjilal D. W. 5 which is contra-indicated by his own witnesses Shyamsunder D. W. 8 and Dr. Bramhanand D. W. 9. If there were any truth in that submission, there could be, we think, no dearth of relevant evidence.
14. Reliance is also placed upon the fact that possession of the house, which was in occupation of a tenant, was not delivered to Ramdas P. W. 2. It is true that, for a time, Ramjilal D. W. 5 continued to recover rents from the tenant but, as we have shown, he subsequently made amends, handed over the rents recovered by him to Ramdas P. W. 2 and also gave a letter asking the tenant to pay the future rents to the transferee. It was after this that Ramdas P. W. 2 got his name mutated in municipal records (Ex. P-22) and started paying municipal taxes (Ex. P-2). It is clear from Ex. P-7 that Ramjilal D. W. 5 had realised the rents up to the end of the year 1960 and then paid the rents so recovered to Ramdas P. W. 2. That being so, the statement of the tenant V. P. Tiwari D. W. 2 to the effect that he paid the rent for January 1960 to Ramjilal D. W. 5 and the production of the receipt Ex. D-6 to that effect are not of much value. It is, however, significant that V. P. Tiwari D. W. 2 did not produce any receipt subsequent to Ex. P-7 dated January 11, 1961 to show that he had continued to pay rent to Ramjilal D. W. 5. Further, he appeared without summons at the instance of Ramjilal D. W. 5 with whom he seems to have become familiar. In the circumstances, we prefer to rely upon the evidence of Ramdas P. W. 2 to the effect that, after 1960, he recovered the rents from V. P. Tiwari D. W. 2.
15. After V. P. Tiwari D. W. 2 vacated the disputed house at the beginning of June 1962. it was allotted to R. S. Shrivastava D. W. 7, a brother-in law of the defendant 1 (Ex. P-1). The new tenant stated that he occupied it soon afterwards and remained there for five months at the end of which he claimed to have exchanged it for the house of one Abdul Kadir which his brother-in-law (defendant 1) was occupying. He said that, during this period, he paid rents of the house to Ramjilal D. W. 5. He could not, however, produce a single receipt. He admitted that he used to take rent receipts from Abdul Kadir and we see no good reason why he did not do so from Ramjilal D. W. 5. Therefore, on this point we do not accept his evidence or that of his brother-in-law, Anand Kumar D. W. 1, who, as the defendant 1, is materially interested in this suit. In the result, we find the contention that Ramdas P. W. 2 was not at all in possession of the house to be not well founded. The facts noticed by us in paragraph 14 above contraindicate that the sale in favour of Ramdas P. W. 2 was nominal only or that it was not intended to be acted upon.
16. The passing of consideration for the sale dated December 5, 1962, has been proved by Vijay Kumar P. W. 1, Ramdas P.W. 2 and Bhagchand P. W. 7. The defendants 1 and 2 sought to challenge this consideration, but it is well established that, being third parties, it is not open to them to do so.
17. We do not agree with the lower Court that a collateral agreement between the parties that a sale-deed executed by one of them would be nominal and would not be acted upon is hit by Sections 91 and 92 of the Evidence Act and cannot be proved, We have, therefore, considered the entire evidence, both direct and circumstantial, in support of the alleged agreement and we affirm the lower Court's conclusion that there was no agreement that the sale-deed dated December 26, 1959, would be a nominal transaction not intended to be acted upon or which was executed merely as a collateral security for a loan of Rs. 7,000/- and interest Rs. 1,000/-. We also affirm the further conclusion of the lower Court that there was no agreement to reconvey the disputed house within 3 years upon repayment of Rs. 8.000/-.
18. In view of the conclusion that the sale in favour of Ramdas P. W. 2 was good and valid, and not merely nominal, it is unnecessary to consider whether the plaintiff is a bona fide purchaser for value without notice though, in our view, even that claim would not be unsustainable in the circumstances of the case. In the result, therefore, the appeal filed by Ramjilal D. W. 5 (defendant 2) must fail.
19. So far as the appeal filed by Anand Kumar D. W. 1 (defendant 1) is concerned, that has no merit at all. The rent of the house in dispute was Rs. 20/- per month and, in view of Section 39(5) of the M. P. Accommodation Control Act, 1961, it could not be allotted even to H. S. Shrivastava D. W. 7. The defendant 1 apparently occupied it towards the end of 1962 and. as claimed by him, he had taken the consent of the defendant 2. But the defendant 2 then had no right or title to the house and he could not induct any new tenant. The allotment order made in 1965 in favour of the defendant 1 was altogether illegal for several reasons, including the one that he was not then entitled to get the benefit of such an order under Section 39 (2) of the M. P. Accommodation Control Act, 1961. He was, therefore, no better than a trespasser occupying the house without lawful authority. As we have shown, the defendant 1 was not, and could not be, a tenant of the plaintiff. It may be contended, though it was not so argued before us, that, by serving a notice to quit on, Anand Kumar D. W. 1, the plaintiff recognised him as a tenant. In our view, this could not be unilateral because even thereafter, Anand Kumar D. W. 1 refused to consider himself as the plaintiff's tenant. So he stated in paragraph 3 of his written statement:
For this reason, he never regarded, or could regard, himself as plaintiff's tenant.
Even if Anand Kumar D. W. 1 could be regarded as a tenant, he had, in 1963, denied the plaintiff's title and stated that he would pay rent to the owner of the house mentioned in the allotment order, namely, Hamjilal D. W. 5 (Anand Kumar P. W. 1, paragraph 4). By the notice Ex. P-16 dated April 8, 1967, the tenancy was, in view of the denial of the plaintiff's title, forfeited and determined. It is hardly necessary to add that disclaimer of title by the tenant is a ground for eviction included in Clause (c) of Section 12 (1) of the Madhya Pradesh Accommodation Control Act, 1961 : Ghulam Mohammad v. Pooranchand S.A. No. 16 of 1967, D/- 16-11-1987 (M. P.). Finally, the contention that the defendant 1 could not deny the title of his landlord is a principle which applies only to a suit brought by the landlord against his tenant whom. he had inducted in possession of the demised premises. It is of no avail to the tenant when the real owner of those premises brings a suit for possession against the landlord as well as his tenant. For all these reasons, this appeal filed by the defendant 1 also must fail.
20. Before closing, we may add that no other point was argued in support of this. appeal.
21. In the result, the two appeals are dismissed. Costs of this Court shall follow that event. Other costs as directed by the lower Court. Hearing fee according to schedule.