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Mool Chand and anr. Vs. Ishwarlal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 183 of 1972
Judge
Reported inAIR1974Raj163; 1973()WLN164
ActsRajasthan premises (Control of Rent and Eviction) Act, 1950 - Sections 13, 13(1) and 28; Transfer of Property Act, 1882 - Sections 106 and 111
AppellantMool Chand and anr.
Respondentishwarlal and anr.
Advocates: P.N. Datt and; K.N. Tikku, Advs.
Cases Referred and Raman Nair v. Moriyamma
Excerpt:
.....eviction act, 1950 - section 13 and transfer of property act section 111--tenancy terminated--tenant entitled to protection of section 13 provided he fulfills conditions there of.;the general law is that once a tenancy has been determined in accordance with the provisions of section 111 of the transfer of property act the landlord is entitled to evict the tenant who after the determination of the tenancy is no longer a tenant. it is only the provisions of the rent control legislation that step in on the determination of the tenancy and by fiction of law the tenant becomes a statutory tenant, but so far as the protection under section 13 is concerned, the tenant must fulfil the conditions thereof and should not be found to have done anything which disentitles him from the protection..........v. moriyamma, air 1920 mad 256.8. the main point that falls for consideration is whether to disentitle a tenant from the protection of section 13 of the act on the ground of renouncement of his character as a tenant or denial of the title of the landlord in the property, it is incumbent on the landlord to serve the tenant with a notice under section 111(g) of the transfer of property act.9. the material portion of section 13 of the act may be quoted:--'section 13. eviction of tenant.-- (1) notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to day rent therefor to the full extent allowable by this act,.....
Judgment:

Kan Singh, J.

1. The second appeal before me which is by a tenant and arises out of a suit for eviction raises a question about the applicability of Clause (f) of Sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act 1950, hereinafter referred to as the 'Act', that is, the non-availability of protection under the section on the tenant's renouncing his character as a tenant or by denying the title of the landlord.

2. The subject-matter of the suit was a shop situated at Karauli. The plaintiffs Ishwarlal and Bairanglal, who were brothers, had purchased this shop from one Ramakishan Babulal by a registered sale deed dated 16-10-1968. The defendants Moolchand and his son Radhey Shyam were said to be the tenants of the transferor Ramakishan Babulal on a monthly rent of Rs. 1.25 paise. The transferor gave notice of the sale of the property to the defendant-tenants intimating that the shop had been sold to the plaintiffs Ishwarlal and Bairanglal and thereafter the tenants should pay rent to them. Then the plaintiffs served a notice on 13-9-1968 on the defendants terminating the tenancy in accordance with Section 106. Transfer of Property Act and then filed a suit for arrears of rent and eviction on 23-12-1968. The eviction of the defendants was sought on two grounds namely, default in Payment of rent and bona fide personal necessity of the landlords. On 20-3-1969, however, the plaintiffs filed an amendment application seeking permission of the Court for taking an additional ground for ejectment namely, that the defendants having repudiated the title of their landlords by their notice Exhibit 4 dated 30-10-1968 served through Shri Basant Kishore Bhargava, Advocate, they were liable to be evicted.

2-A. The defendants admitted that they were the tenants of the plaintiffs, but they denied that they were in default in paying the rent or that the landlords had the personal necessity for the suit shop. They also denied that notice Exhibit 4 had been served by Shri Basant Kishore Advocate under their instructions.

3. The learned Munsif framed the following issues:--

1 D;k izfroknhx.k dh fdjk;snkjh ekfld u gksdjLFkk;h&VsusUlh; gS vkSj oknhx.k nqdku [kkyh djkus ds vf/kdkjh ugh gS

2 D;k oknhx.k dks okn xzLr nqdku dh ;qfDr&;qDrrFkk okLrfod futh vko';drk gS

3 D;k oknhx.k }kjk fn;k x;k uksfVl bfZZU[kykQvoS/k gS

4 D;k izfroknhx.k ds firk us nqdku eqruktkcukus esa ,d gtkj :i;s [kpZ fd, vkSj oknhx.k fcuk ,d gtkj :i;s fn, nqdku&[kkyhdjkus ls ,lVkIM estoppedgS

5 D;k izfroknh us fdjk;snkjh ls bUdkj fd;k gS]vr% oknhx.k buf[kykQ dh fMh ikus ds vf/kdkjh gS

6 D;k izfroknh us vius nkf;Ro ls bUdkj djrsgq, fdjk;k tek djk gS] vr% og fMQksYVj gS

7 vuqrks'k

4. Both the parties adduced their evidence. The learned Munsif, however, dismissed the suit holding that neither there was any default in the payment of rent nor were the plaintiffs able to prove their bona fide personal necessity and further it, has not been shown that the defendants had repudiated the title of the landlords to the suit property.

5. Aggrieved by the decree of the learned Munsif the plaintiffs went up in appeal to the Court of Additional District Judge, Gangapur City. Learned counsel for the plaintiffs pressed only one point and it was that the defendants having repudiated the title of the landlords and having set up their own title in the suit property had disentitled themselves from the protection claimable under Section 13 of the Act. The learned Judge put reliance on the testimony of Shri Basant Kishore. Advocate in this regard. He observed that although Shri Basant Kishore could not say as to which of the defendants had approached him for giving a reply to the notice of the transferor landlords there was no reason to believe that notice was given by Shri Basant Kishore without the defendants' instructions. Apart from this the learned Additional District Judge referred to two entries from the Municipal records relating to house-tax which has been proved by the testimony of P. W. 4 Ranjit Pal. He stated that the entries Exs. 6 and 7 had been made by him according to what, the defendants had stated. One was an entry of 1961 and, according to Ranjit Pal, it was Mathura who stated that the shop belonged to him. The other entry was of the year 1968 which was made at the instance of Mool Chand. Accordingly, the learned Judge came to the conclusion that the defendants had repudiated the title of their landlords by setting up a title in themselves and had consequently disentitled themselves from the protection under the Act. In the result, the learned Judge set aside the decree of the learned Munsif and passed a decree of eviction in favour of the plaintiffs and against the defendants.

6. It is in these circumstances that the defendants have come in appeal to this Court.

7. Learned counsel for the appellants has argued, in the first place, that the Court below was in error in holding that the defendants had renounced the landlords title. He submitted that the evidence of Shri Basant Kishore Bhargaya was not at all sufficient for holding that he had given the notice Exhibit 4 on instructions by the defendant. As regards the entries Exs. 6 and 7 as also regarding the testimony of P. W. 4 Ranjit Pal, learned counsel argued, that the entries or for that matter what Ranjit Pal stated did not amount to disclaimer. Apart from this, according to learned counsel, as this was not brought to the notice of the landlords it was not at all sufficient for the purposes of entailing forfeiture of tenancy.

7-A. In the second place, learned counsel contended that the provisions of Clause (f) of Sub-section (1) of Section 1'3 of the Act were almost a reproduction of the provisions of Section 111(g) of the Transfer of Property Act. It was therefore, incumbent on the landlords to have issued notice of forfeiture of the tenancy on the ground of disclaimer of landlord's title. In this behalf learned counsel pointed out that the provisions of the Transfer of Property Act being in addition to the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (vide Section 28 thereof) they were required to be complied with even if for arguments' sake it were accepted that the tenant was not entitled to the protection under Section 13 of the Act. Learned counsel placed reliance on a number of cases, such as, Ramgopal v. Mangla, ILR (1966) 16 Raj 572; Ranumal v. Municipal Council, Aimer, AIR 1972 Raj 55: State v. S.S. Devi, AIR 1972 Pat 200; Laxmi S. & W. Mills Ltd. v. Mohammed Ibrahim, AIR 1958 Cal 428; Chandra Nath v. Chulai Pashi, AIR 1960 Cal 40 and Raman Nair v. Moriyamma, AIR 1920 Mad 256.

8. The main point that falls for consideration is whether to disentitle a tenant from the protection of Section 13 of the Act on the ground of renouncement of his character as a tenant or denial of the title of the landlord in the property, it is incumbent on the landlord to serve the tenant with a notice under Section 111(g) of the Transfer of Property Act.

9. The material portion of Section 13 of the Act may be quoted:--

'Section 13. Eviction of tenant.-- (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to Day rent therefor to the full extent allowable by this Act, unless it is satisfied--. ... ... ... ... (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; or... ... ... ... ...'

Section 28 of the Act provides that the provisions of this Act shall be in addition to and not in derogation of any other law on the subject for the time being in force in the whole or any part of Rajasthan. Learned counsel, therefore, emphasises that in order to secure eviction of the tenant the landlord must fulfil the conditions prescribed by the relevant provisions of the Transfer of Property Act.

Section 106 of the Transfer of Property Act lays down how a lease may be determined. It provides that in the absence of any contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee,' by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy. The relevant portion of Section 111 reads:

'Section 111. Determination of lease. A lease of immovable property determines--. ... ... ... ...(g) by forfeiture; that is to say,--(1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; 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) the lessee is adjudicated an insolvent and the lease (provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.

(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.'

The reading together of Section 106 and Section 111(h) shows that with the service of a proper notice the lease shall stand determined on the expiration of the notice. Sub-section (g) of Section 111 provides that in the case of the lessee renouncing his character as such by setting up a title in a third person or by claiming title in himself the lease shall be determined by forfeiture, on the lessor or his transferee giving notice in writing to the lessee of has intention of determining the lease.

9-A. In the present case the landlord has not determined the lease by forfeiture under Clause (g) of Section 111, but the lease has been determined under Clause (h) of Section 111 by serving a notice in accordance with Section 106 of the Transfer of Property Act.

10. In this context the question arises, as already observed, whether the defendant cannot be disentitled from the protection of Section 13 of the Act as long as a notice of forfeiture under Clause (g) of Section 111 of the Transfer of Property Act is not given by the landlord and the determination of the lease by a notice under Section 106, Transfer of Property Act would not be enough. No direct authority which may help in solving this problem could be brought to my notice. The question has, therefore, to be decided in the light of the statutory provisions and the general principles.

11. A person has a fundamental right to hold his property and this will include his right to derive benefits from his property. It cannot be gainsaid that the rent control legislation imposes a restriction on such a fundamental right. The restrictions are undoubtedly in the interest of the general public and there is no manner of doubt that they are reasonable, but it cannot be lost sight of that what is fundamental is the fundamental right and not the restrictions. The protective provisions contained in Section 13 of the Act are with a view to help the tenants who have been considered a weaker section in society in comparison to the landlords. Nevertheless the restrictions or protection being made available only on fulfilling certain essential conditions, it shall be necessary for the party claiming the benefit of such restriction to show that his case is covered by such restrictions and that he has not done anything which disentitles him from the protection. Clause (f) of Sub-section (1) of Section 13 of the Act lays down a condition that would disentitle the tenant from claiming the protection of the Act. To my mind, the general law is that once a tenancy has been determined in accordance with the provisions of Section 111 of the Transfer of Property Act the landlord is entitled to evict the tenant who after the determination of the tenancy is no longer a tenant. It is only the provisions of the Rent Control Legislation that step in on the determination of the tenancy and by fiction of law the tenant becomes a statutory tenant, but so far as the protection under Section 13 is concerned, the tenant must fulfil the conditions thereof and should not be found to have done anything which disentitles him from the protection of Section 13. Viewed in this light, I am afraid it was not necessary for the landlord to have served a notice of forfeiture under Clause (g) of Section 111 of the Transfer of Property Act on the tenant.

Section 111 deals with determination of leases or tenancies whereas Section 13 deals with the conditions under which protection against eviction can be claimed. If the lease were not determined in accordance with Clause (h) of Section 111 of the Transfer of Property Act by serving a notice under Sec. 106 of that Act, then without there being a proper notice of forfeiture the landlord would not be able to evict the tenant, but once a lease has been determined by a notice under Section 106 of the Transfer of Property Act and it is also found that the tenant has done something which disentitles him from claiming the protection of the Act, as in the present case, by renouncement of his character as a tenant and by denial of the landlord's title then I do not understand why a notice of forfeiture would still be required. The provisions of Section 13 are not controlled or restricted by the provisions of the Transfer of Property Act. Though the provisions of the Act are in addition to and not in derogation of any other law on the subject, it cannot be overlooked that Section 13 begins with a non obstante clause and it has to prevail over other analogous provisions elsewhere. Section 28, to nay mind, only means that the Act is in addition and not in derogation of any law on the subject namely, that its provisions do not amend, repeal, supersede or otherwise affect any other provisions, but in spite of that so far as the applicability of Section 13 is concerned it will Prevail over any other provision. I am, therefore, unable to accept the contention of the learned counsel that notice of forfeiture under Section 111(g) of the Transfer of Property Act was still required when there was a determination of tenancy under Clause (h) of Section 111 by a notice under Section 106 of the Act.

12. Learned counsel for the appellants further argued that after the determination of the tenancy the appellant-tenant has never renounced his character as a tenant or denied the title of the landlord and, therefore, he has not incurred the disqualification against the availability of the protection under Section 13 of the Act. To my mind, Clause (f) of Sub-section (1) of Section 13 of the Act shall take in even renouncements occurring prior to the determination of the tenancy as well as those after it. There are no words of limitation in the section to restrict the operation of this clause to renouncements occurring after the determination of tenancy only.

13. I may now briefly refer to the cited cases.

14. Ramgopal's case, ILR (1966) 16 Raj 572 deals with a case where tenancy was determined by forfeiture and it was pointed out that lessor was bound to give a notice in writing to the lessee of his intention to determine his lease and thus only the lease can be said to have been determined This case, therefore, is not relevant for the present purpose.

15. The same thing applies to AIR 1972 Raj 55.

16. In AIR 1972 Pat 200 it was pointed out that the notice contemplated by Section 111(g) is not one contemplated by Section 106 of the Transfer of Property Act. This case too is thus not of any help.

17. The Calcutta cases also do not throw light on the question arising in the present case.

18. The second question whether notice Exhibit 4 was given for and on behalf of the tenants and whether that amounts to repudiation or renouncement of the landlord's title need not detain me for long. Shri Basant Kishore Bhargava, Advocate who gave the notice, has appeared in the plaintiff's evidence as P. W. 6. He clearly stated that he gave this notice on behalf of the defendants though he did not say as to who out of the two defendants had approached him. It is, however, noteworthy that it was not at all suggested that there was any collusion between Shri Basant Kishore Bhargava and the plaintiffs. There is, therefore, no apparent reason to think that Shri Basant Kishore Bhargava would take upon himself the task of replying to the landlord's notice received by the defendants without the latter's instructions. In all probability notice Ex. 4 was given by Shri Bhargava as instructed by the defendants. A reading of it shows that Shri Basant Kishore Bhar-gava had taken strong exception to the notice served by Shri Shivji Prasad. Advocate. He started by writing:

'The way in which you have put in your signatures is illegal and against professional ethics, You ought to have written the said Notice after taking instructions from your clients and indicating in the notice that you are writing on their behalf with their instructions. Putting in signatures of clients as attestors is derogatory to the authority which we Advocates possess and have a legal right to hold it.'

He added :

'If you have written what your clients dictated and simply put your name as scribe, you ought not to add the word 'Advocate' after your signatures. Your notice thus deserves no reply and is worth being ignored.' Then the learned Advocate proceeded to reply to the notice. In para. 5 of the notice Shri Basant Kishore Bhargava stated thus:--'Whatever may be the actual position, if you are interested in the matter, I have to request you to kindly convey Messrs. Nathulal and Ram Kishan that my clients are full owners of the shop in question and that their alleged sale has no effect on my clients' rights of ownership, and that if in spite of the existence of above facts they file any suit in any Court they will be held responsible for special costs or damages or both as allowed by law.'

19. Now this notice unmistakably shows that Shri Bhargava was extraordinarily conscious of the fact that a notice has to be as per instructions of the client and, according to Shri Bhargava's line, Shri Shivji Prasad, Advocate had fallen from the standards of professional ethics when he allowed the clients to put their signatures as well on the notice.

20. Therefore. I am quite convinced here that Shri Bhargava had given the notice as instructed by the defendant-appellants and para. 5 of the notice, extracted by me above, leaves no room for doubt that the defendants had very much denied the landlord's title to the property. It is noteworthy that this notice is dated 30-10-1968 and after determination of the tenancy the plaintiffs filed the suit on 23-12-1968. Thus, Clause (f) of Sub-section (1) of Section 13 of the Act wavs applicable to the facts of the present case.

21. Apart from this there is the statement of P. W. 4 Ranjit Pal on which the lower Court has relied. He has proved the entries Exhibits 6 and 7 in the house-tax asssessment records. He had clearly stated that it was mentioned therein that the defendant was the owner of the shop and the entry was made after inquiring from the defendant. The inquiry was made from Mathuralal vide Exhibit 6 and from Mool Chand vide Exhibit 7. Learned counsel for the appellants argued that as this assertion of one's own title in the property was made by the defendant without the knowledge of the plaintiff it did not entail the penalty of forfeiture. He relied on AIR 1920 Mad 256. In that case the defendant himself had not done any positive act, but he was found in possession of a document in which the defendant was spoken of as an owner. In that context the learned Judges observed :--

'Here the defendant did not do any act which can be said to amount to a denial of the title of his landlord. It has not been pointed out to us that the landlord was made aware of any denial of title by the defendant. Under these circumstances the receipt and retention of a document by the defendant in which he is spoken of as the jenmi could not operate as a denial of the plaintiff's title.'

The case is distinguishable on facts. Here the defendant had declared to the House Tax Authorities that he was the owner of the shop. This may not have come to the notice of the plaintiff at the time, but it does amount to denial of landlord's title and this will disentitle the defendant from claiming the protection under Section 13 of the Act. The protection is based on the continued faith of the tenant in the relationship of landlord and tenant between the parties. There will be undoubtedly a breach of it if the tenant sets up a title in himself before others.

22. Learned counsel in the end feebly argued that there was condonation of this fault on the part of the tenant when the landlord accepted rent from the tenant. But, having looked into the record he was not able to show that anv rent had been accepted by the plaintiff from the defendant as alleged.

23. Although no one appeared on behalf of the respondents, learned counsel for the appellants had argued the case with fairness placing all the available cases before me and I am beholden to him for the assistance rendered by him.

24. The appeal has thus no force and is consequently hereby dismissed. The defendant shall get two months' time to vacate the premises.

25. Learned counsel orally prayed for leave to appeal under Section 18 of the Rajasthan High Court Ordinance, but in the circumstances disclosed I am not inclined to grant the leave which is accordingly hereby refused.


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