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Dah Chand Vs. Dadamchand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 445 of 1959
Judge
Reported inAIR1963Raj209
ActsEvidence Act, 1872 - Sections 116; Code of Civil Procedure (CPC) - Order 21, Rule 85
AppellantDah Chand
RespondentDadamchand
Appellant Advocate M.C. Bhandari, Adv.
Respondent Advocate J.S. Chordia, Adv.
DispositionAppeal allowed
Cases ReferredGuruswami v. Ranganathan
Excerpt:
.....to the correct legal position in a case of this type, as i have discussed above, section 116 of the evidence act cannot possibly come in the way of the defendant so as to prevent him from showing that the plaintiff had no title to the house in question, or that it had come to an end, and inasmuch as he has succeeded in making this challenge good, the plaintiff's suit must fail......apply to dis-entitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance ot rent etc. in this sense it is true enough that the principle only applies to the title of the landlord who 'let the tenant in' as distinct from any other person claiming to be reversioner. 'nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end' '. (the underlining (here into ' ') is mine).10. in luckman chaplain v. pearey lal, air 1939 an 670, it was held that here the tenant's denial ot his landlord's title is related to facts which have happened subsequent to the commencement of the tenancy,.....
Judgment:

I.N. Modi, J.

1. This is a Civil regular second appeal by the defendant Dahchand in a suit for rent and ejectment. The Civil Judge Doongarpur dismissed the suit but on appeal the learned District Judge Udaipur decreed it for a sum of Rs. 230/- being the arrears of rent from the 2nd February,1954, to the 1st March, 1956, though impliedly that Court also maintained the dismissal of the suit so far as the relie) of ejectment was concerned.

2. The material facts leading up to this appeal may shortly be stated as follows : The plaintiff respondent Dadamchand obtained a money decree against Gulabchand, brother of Dahchand, who is the appellant before this Court. In execution of that decree Dadamchand brought the suit house for sale alleging it to be the property of Gulabchand. Dadamchand purchased it at a court-sale, and there is mate-ral on the record to show that he was put in possession of it on the 2nd February, 1954, vide the Sales-Amman's report Ex. 2. As things transpired, the appellant Dahchand executed the rent-note Ex. 1 with respect to this house in favour of the plaintiff on the same date agreeing to pay a monthly rent of Rs. 10/- to the latter. It is this rent-note which is the basis of the present suit, the plaintiff's case feeing that the defendant had not paid the rent stipulated therein right from the 2nd February, 1954, upto the 1st March, 1956.

Meanwhile, Gulabchand challenged the execution-sale which had been made in favour of the plaintiff on the ground that he had not complied with the requirements of Order 21, Rule 85, C. P. C. and therefore the sale was vitiated altogether. The Trial Court turned down his prayer. On appeal, the learned District Judge, Udaipur, by his judgment dated the 26th April, 1954, set aside this sale. An appeal from that judgment was then brought to this Court, and this was dismissed by me by my judgment dated the 25th July, 1957, Ex. 3. It was held by me that the failure on the part of the plaintif who was the decree-holder there to deposit the balance of the purchase price within 15 days from the date of the sale as required by Order 21, Rule 85, C. P. C. could not but have the effect of vitiating the sale and the position was as if no sale had taken place. The judgment of the learned District Judge was confirmed accordingly.

3. It is in these circumstances that the present suit came to be instituted by the plaintiff for recovery of arrears of rent and ejectment on the basis of the rent-note Ex. 1 referred to above on the 5th July, 1956.

4. The defendant resisted the suit. He admitted to have executed the rent-note Ex. 1 but contended that he had never been put in possession of the suit property by the plaintiff. It was Further contended that the sale on which the plaintiff relied as the basis of his title as a landlord had been set aside by the District Court on the 26th April, 1954, and that decision had been upheld by this Court as the 25th July, 1957, and, therefore, his title to bring the present suit had come to an end and consequently it deserved to be dismissed.

5. The Trial Court held in favour of the defendant on bnth the points adverted to above and dismissed the plain-tiff's suit. On appeal, the learned District Judge reversed the first Court's decision on each of these two points but contented himself by passing a decree for arrears of rent only. The plaintiff was obviously satisfied with this decree and, therefore, he has not challenged it any further, and it is only the defendant who has come up in second appeal to this Court.

6. I propose to dispose of this appeal on the assumption that the defendant appellant had been put into possession of the suit property under the rent-note Ex. I.

7. The only further question for determination then is whether the learned District Judge was right in decreeing the plaintiff's suit for recovery of rent in the circumstancesof the present case. Having heard learned counsel for the parties at some length, 1 have come to the conclusion that this decree cannot be sustained in law.

8. The crucial question which arises in this connection is whether the defendant is barred by the provisions of Section 116 of the Evidence Act from raising the contention that the plaintiff's right to sue had come to an end since the tenancy had commenced. Section 116 in so far as it is relevant for present purposes reads as follows :

'No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.'

It is clear that the foundation underlying the doctrine of estoppel as embodied in Section 116 is that the possession of the property by the tenant is permissive. The words of Section 116 which require to be particularly noted in the present context, however, are 'at the beginning of the tenancy', and the question is whether Section 116 is attracted into application in cases where the tenant's denial relates to facts which have happened subsequent to the commencement of the tenagcy. For an answer to this question, reference may profitably be made to a few decided cases.

9. In Krishna Prosad v. Baraboni Coal Concern, AIR 1937 PC 251, this is what their Lordships of the Privy Council had to say about the true content and scope of Section 116 :

'The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given Landlord, it 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. In the ordinary case of a lease intended as a present demise ..... the section appliesagainst the lessee, any assignee of the term and any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception, even for the case where the lease itself discloses the defect of title. The principle does not apply to dis-entitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance ot rent etc. In this sense it is true enough that the principle only applies to the title of the landlord who 'let the tenant in' as distinct from any other person claiming to be reversioner. 'Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end' '. (The underlining (Here into ' ') is mine).

10. In Luckman Chaplain v. Pearey Lal, AIR 1939 AN 670, it was held that here the tenant's denial ot his landlord's title is related to facts which have happened subsequent to the commencement of the tenancy, the bar of estoppel does not come into operation and it is open to the tenant to plead that the title of the landlord has passed to the Government so that he has no right to realize rent.

11. The same principle was applied in Mohendra Nath v. Mohendra Nath AIR 1944 Cal 305, and it was held that a tenant could not be prohibited from resisting a claim for rent by showing that the relationship of landlord and tenant had come to an end subsequent to the commencement of the tenancy.

12. In John Nadjarian v. E. F. Trust, AIR 1945 Bom 399, it was held that when either through ignorance of title of the landlord or by fraud in the matter of execution of the Kabulayat the tenants had attorned to him, then they were not altogether estopped but could show that the landlord had no title either when the Kabulayat was executed or attornment made by payment of rent, and it was competent to the tenants to show that the landlord had no title at the date when the tenants attorned to him. Perhaps, this decision goes somewhat farther than the decisions to which I have referred above, in so far as it permits a tenant to question the title of the landlord at the date of the tenancy on the mere ground that he was ignorant of his landlord's title. But it is unnecessary to go to that length to decide the case before me, and it should be sufficient to hold that the bar of Section 116 cannot come in the way of a tenant where he seeks to question the title of his landlord on the strength of certain events and circumstances which have come into existence since the commencement of the tenancy.

13. The last case to which reference may be made in this connection is Guruswami v. Ranganathan, AIR 1954 Mad 402. It was held in this case that estoppel in Section 116 of the Evidence Act was restricted to the denial of title at the commencement of the tenancy and, therefore, it would be open to the tenant even without surrendering possession to show that since the date of the tenancy the title of the landlord came to an end or that he was evicted by a paramount title-holder or that even though there was no actual eviction or dispossession from the property, he had attorned to the para-mount title-holder under a threat of eviction from him.

14. From a review of the cases cited above, I have no hesitation in coming to the conclusion that Section 116 of the Evidence Act imposes no bar on a tenant where he seeks to question the title of his landlord, on the ground that after the tenancy had begun, it had come to an end on account of certain events which had happened subsequent to the establishment of the tenancy. It must follow as a corollary that where the tenant does succeed in showing that the landlord's title has in fact come to an end, the plaintiff's suit for recovery of rent based on the relationship of landlord and tenant is bound to be dismissed.

15. Let us then see how this principle works out in the present case. As I have already stated, the defendant admits to have executed the rent-note Ex. 1 in favour of the plaintiff with respect to the suit house. The learned District Judge has then found that he was put into possession of this house by the plaintiff and we shall assume that this finding is correct for the purposes of the present appeal. It is then established to the hilt that the defendant's brother Gulabchand (Judgment-debtor) questioned the execution sale as a result of which the plaintiff became the purchaser of the suit house and this challenge succeeded first by the judgment of the learned District Judge dated the 26th April, 1954, and finally by the judgment of this Court dated the 25th July, 1957. This sale was pronounced to be wholly void and of no effect.

It was this sale which gave the plaintiff title to the suit house, and when that sale was set aside, there can be no escape from the conclusion that his title tenas under along with it. In other words, the plaintiff's title vis-a-vis the suit house came to an end, and the, position is as if the plaintiff had no title whatsoever to this house at any time. It is obvious from the circumstances narrated above that this challenge is based on events which happened subsequent to the sale. That being so, I am definitely of the opinion that having regard to the correct legal position in a case of this type, as I have discussed above, Section 116 of the Evidence Act cannot possibly come in the way of the defendant so as to prevent him from showing that the plaintiff had no title to the house in question, or that it had come to an end, and inasmuch as he has succeeded in making this challenge good, the plaintiff's suit must fail.

16. In the result, 1 allow this appeal, set asidethe judgment and dec'ree of the learned District Judge,Udaipur, and dismiss the plaintiff's suit. Having regard to all the circumstances of the case, I would furtherorder that the defendant will have three-fourths of hiscosts in all the courts. Leave to appeal is refused.


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