Lahu s/o Namdeo Ingale vs Kailash Matasaran Gupta

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Bom) 1219

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPUR
A.B. CHAUDHARI, J.
Lahu s/o Namdeo Ingale .... Appellant
Versus
Kailash Matasaran Gupta .... Respondents
Second Appeal no. 357/1999
Decided on : 24/06/2014

Advocates Appeared:
Mr. M.G. Bhangde, Sr. Adv.with Mr. V .V. Bhangde, Adv. For the appellant;
Mr. J.T. Gilda with Mr. A.J. Gilda, Advocates for respondents 1 to 7.

Headnote:EVIDENCE ACT, 1872 - Section 116 - T.P. Act, 1882, Section 111(g) - Tenant’s estoppel. - Where tenant’s act of denial of derivative title of landlady was mala fide and false therefore tenant’s estoppel attracted. - Section 111(g) of the T.P. Act, will have an independent operation without being dependent on applicability of rule of estoppel under Section 116 of the Evidence Act which is an enabling provision. As discussed in the instant case when the landlady went before the Rent Controller, the appellant took a strong objection as to the maintainability of the application before the Rent Controller on the ground that she was not the landlady and, thereafter, when she went to Civil Court claiming decree of eviction, the objection taken is that the landlady will have to obtain permission from the Rent Controller for his eviction since the ground of forfeiture of tenancy was not available to her, she having held a derivative title. If such a plea is accepted then no remedy is available to her in law. The appellant cannot be thus allowed to approbate and reprobate and, therefore, he could not be allowed even to take a stand that he would not be guilty of the vice provided by Section 111(g) of the T.P. Act resulting into the consequence of determination of tenancy, rather it would be unjust to deny the remedy in law to the landlady. In the instant case, looking to the pleadings and the conduct of the appellant in filing the suit for declaration about her title and getting the proceedings before the Rent Controller dismissed on the same ground, there was a clear intention on the part of the appellant to not to act bona fide, on the contrary, was acting mala fide. That was all the more so because the lease was only for a period of five years and the suit was filed alter the period of lease of five years. The lower Appellate Court has rightly held that the document Exh. 68 list of document was liable to be rejected, not being admissible in evidence for want of registration.
Transfer of Property Act, 1882 - Section 111(g) - Determination of lease. - Since denial of title is bona fide or innocent hence determination of lease under Section 111(g) of Act may not be made. - It is not in dispute in the present case that a notice contemplated by Section 111(g) of the T.P. Act was issued by the landlady and after expiration of notice, the suit was filed. It may be true that the appellant/tenant did not accept Rupabai as his landlady and made the payment of rent to her clearly under protest. The finding of fact recorded by the lower Appellate Court that the appellant/tenant had paid the rent and therefore, accepted Rupabai as a landlady is not correct. That apart, in view of the provisions of Section 111(g) of the T.P. Act and in the light of denial of title of Rupabai before the Rent Controller and having failed in obtaining declaration against her about her ownership, it will have to be concluded that the attempt on the part of the appellant to challenge her title was not bona fide. From the various decisions cited before me, it is clear that the determination of lease under Section 111(g) of the T.P. Act may not be made in case of the denial of title which is bona fide or innocent. But in the instant case, what I find is that the appellant deliberately challenged her title before the Rent Controller as well as in the RCS No. 1041/1990 and sought a declaration that she was not the owner and that was done repeatedly. It is settled legal position that the reason to prevent the tenant from denying the title of landlord is that the tenant cannot be allowed to acquire by prescription a permanent right of occupancy in derogation of landlord’s title by mere assertion of such a right to the knowledge of the landlord. There is no reason as to why the said principle should not be made applicable in the case of landlord obtaining derivative title.

JUDGMENT

1. Being aggrieved by the judgment and decree dated 22.07.1999 passed by learned Additional District Judge, Amravati in Regular Civil Appeal No.294/1994 by which the learned lower Appellate Court reversed the judgment and decree passed by the trial Court dismissing the Suit of the respondent/plaintiff and instead decreed the Suit of the respondent/plaintiff for eviction of the appellant/ defendant from the shop premises, the defendant had filed the present Appeal in this Court.

FACTS :

2. The respondent/plaintiff Sau. Rupabai filed the Suit for possession and for recovery of damages from the appellant/defendant vide Special Civil Suit No.122/1991 for shop in Municipal House No.130/2, Ward No.43 on Nazul Plot No. 4/3; Sheet No. 68B within the local limits of Amravati Municipal Corporation, as owner of the shop premises, having become the owner under a sale deed from the former owner Matasaran executed on 29th December, 1988. Matasaran was the original landlord/ owner and the defendant Lahu was that the original tenant. Matasaran leased out the suit shop by lease agreement dated 23.1.1984 which was exhibited as Exh. 68 on rent of Rs. 200/- per month. It is alleged that Matasaran had agreed not to evict the tenant Lahu at any time and after his demise, Gaurishankar would be his heir who, also would not evict Lahu. Upon execution of sale deed in favour of Rupabai by Matasaran on 29.12.1988, he had intimated Lahu and asked him to pay rent in future to Rupabai. Rupabai then filed an Application before the Rent Controller under C.P. & Berar Rent Control Order, 1949 for grant of permission to issue quit notice to Lahu. At the same time, Lahu filed R.C.S. No.1041/1990 against Rupabai and Gaurishankar asking for the relief that Rupabai was not the owner of the suit property and the sale deed in her favour dated 29.12.88 was a nominal and bogus in order to evict him from the suit shop. The said suit filed by Lahu was dismissed and the decree of dismissal of his Suit became final.

In the Rent Control proceedings, Lahu specifically took a stand that plaintiff Rupabai was not the owner of the suit shop and, therefore, the proceedings before the Rent Controller were not maintainable. But according to him, Matasaran was the owner during his lifetime and thereafter Gaurishankar was to succeed as his legal heir to the suit shop. He, thus, set up title in Matasaran and Gaurishankar. The Rent Controller having found that he was unable to decide the title of Rupabai in the wake of specific denial about she being the landlady and Lahu being the tenant, dismissed the proceedings filed by Rupabai against which Rupabai had filed Appeal before the Appellate Authority which ultimately was withdrawn on 4.4.1995. Having come to know about the stand taken by Lahu, the tenant in her Rent Control proceedings which were filed by her on 4.6.1990, she filed the Suit in question namely S.C.S. No. 122/1991 for possession on the ground that there was a forfeiture contemplated under Section 111(g) of the Transfer of Property Act (in short “the T.P. Act”) so also estoppel under Section 116 of the Evidence Act. The learned trial Judge framed as many as three issues in the Suit, inter alia, whether Rupabai, the plaintiff proved that Lahu/defendant had forfeited tenancy and set up the title in third person, namely, Gaurishankar and the trial Judge answered the said issue in the negative i.e. against the plaintiff and consequently dismissed the Suit for eviction. Rupabai filed Regular Civil Appeal No.294/1994 under Section 96 of the Civil Procedure Code before the District Judge. The learned District Judge framed two points for determination :

(i) Whether the defendant/tenant has proved that denial of title of Rupabai to the tenanted premises has been bona fide?

(ii) If the Point No.1 is answered in negative, whether the plaintiff is entitled to the eviction of the tenant and the possession of the suit premises?

The learned Addl. District Judge, Amravati, answered th

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Judicial Analysis

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2014 Supreme(Bom) 1219

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPURA.B. CHAUDHARI, J.Lahu s/o Namdeo Ingale .... AppellantVersusKailash Matasaran Gupta .... RespondentsSecond Appeal no. 357/1999Decided on : 24/06/2014

Judicial Analysis

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPUR
A.B. CHAUDHARI, J.
Lahu s/o Namdeo Ingale .... Appellant
Versus
Kailash Matasaran Gupta .... Respondents
Second Appeal no. 357/1999
Decided on : 24/06/2014