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High Court Of Calcutta
Sukumar Chakravarty, Gobinda Chandra Chatterjee
SRI SANTI LAL SAHA - Appellant
Versus
SRI SUDHIR KUMAR ROY - Respondent
Original Order 87 Of 1983
Decided On : 05/14/1987
LANDLORD AND TENANT - LEASE - ESTOPPEL - TENANT'S ESTOPPEL FROM DENYING LANDLORD'S TITLE - APPLICABILITY TO ASSIGNEE LANDLORD - REQUIREMENTS - PAYMENT OF RENT TO ASSIGNEE LANDLORD - ACKNOWLEDGMENT OF TENANCY - SECTION 116 OF THE INDIAN EVIDENCE ACT - SECTION 109 OF THE TRANSFER OF PROPERTY ACT.
Fact of the Case:
The defendant was inducted as a tenant in the suit premises by Anadilal Mukherji for 21 years beginning from 15th August, 1958 at the monthly rental of Rs. 100. Anadilal Mukherji sold the suit premises to the plaintiff by a registered sale deed dated 16th July, 1979 before the expiry of the lease. The defendant did not restore possession to the landlord by surrendering the tenancy and possession of the suit premises during the lease period or subsequent thereto. The defendant filed an application for amendment of the written statement, challenging the title and ownership of the plaintiff in the suit premises and also plaintiff's title thereto by his alleged purchase from the lessor on the basis of the sale deed.
Finding of the Court:
The court held that the defendant is estopped from denying the title of his lessor, Anadilal Mukherji to the suit premises at the beginning of the tenancy during the continuance of the tenancy. The court also held that the defendant is not estopped from challenging the title of the plaintiff who is the assignee by virtue of his purchase of the suit premises from Anadilal Mukherji on the basis of the registered sale deed. The court further held that the defendant cannot be permitted to amend the written statement by denying the original lessor's title against the statutory estoppel and by denying the plaintiff-assignee's title in contradiction to the averment already made in the written statement and against the evidence of the plaintiff's title already brought in the record in the form of sale deed.
Issues: 1. Whether the defendant is estopped from denying the title of his lessor, Anadilal Mukherji to the suit premises at the beginning of the tenancy during the continuance of the tenancy? 2. Whether the defendant is estopped from challenging the title of the plaintiff who is the assignee by virtue of his purchase of the suit premises from Anadilal Mukherji on the basis of the registered sale deed? 3. Whether the defendant can be permitted to amend the written statement by denying the original lessor's title against the statutory estoppel and by denying the plaintiff-assignee's title in contradiction to the averment already made in the written statement and against the evidence of the plaintiff's title already brought in the record in the form of sale deed?
Ratio Decidendi: 1. Under Section 116 of the Indian Evidence Act, a tenant who had been let into possession by the lessor, is estopped from denying his lessor's title however defective it may be so long as he has not openly restored possession by surrender to his landlord. 2. Section 116 of the Indian Evidence Act does not strictly apply to the case of the assignee who has derived title on the assignment of the demised promises by the lessor in his favour. 3. The doctrine of estoppel may not be extended to the assignee like the plaintiff in the absence of attornment and payment or rent. 4. In view of the averment in the written statement and the additional written statement admitting plaintiff's title to the suit premises and in view of the sale deed showing plaintiff's derivative title by purchase of the suit premises from defendant's lessor Anadilal Mukherji during the continuance of the lease and in view of the materials in the record showing at least the service of notice of attornment by the transferor lessor upon the defendant, the defendant can not be permitted to amend the written statement further by denying also plaintiff's title to the suit premises.
Final Decision: The appeal is allowed. The judgment and decree of remand passed by the learned Additional District Judge are set aside. The application for amendment of the written statement filed by the appellant-defendant before the First Appellate Court is rejected and the appeal is sent back to the First Appellate Court concerned for deciding the same on merit according to law in the light of the direction and observations as made in the judgment, without being prejudiced by our expression of opinion if any on the merit of the suit.
( 1 ) THIS appeal is directed against the judgment and decree passed in Title Appeal No. 970 of 1981 by Sri S. R. Sircar, the learned Additional District Judge, 4th Court, Alipore, reversing those based by Shri D. Bhatttcharya, the learned Munsif, 4th Court, Alipore, in Title Suit No. 443 of 1979 and remanding the suit for fresh decision in the light of the direction as given in the judgment and decree.
( 2 ) PLAINTIFF Santilal Saha filed the aforesaid title suit for recovery of possession in the suit premises on eviction of the defendant Sudhir Kumar Roy therefrom and for mesne profits.
( 3 ) THE case of the plaintiff in brief was that the suit property belonged to one Anadilal Mukherji and that by a registered deed of lease dated 10th August, 1958, the defendant was inducted as a tenant in the suit premises by Anadilal Mukherji for a period of 21 years beginning from 15th August, 1958 at the monthly rental of Rs. 100 according to English Calendar. On 16th July, 1979 just a month before the expiry of the lease, Anadilal Mukherji sold the suit premises to the plaintiff by a registered sale deed of the same date and both the sellor and the purchaser sent by registered post the notice of attornment to the defendant with a request to pay the rent to the plaintiff. The registered notice of attornment sent by the plaintiff however came back without being served. The plaintiff therefore refused to accept any rent from the defendant. Although no notice to quit was necessary as the lease being a lease for 21 years, terminated with the efflux of time, the plaintiff however asked the defendant to vacate the suit premises by sending a registered notice for the purpose. The defendant did not vacate the suit premises and remain in illegal possession of the same. Hence the suit.
( 4 ) THE defendant filed the written statement and contested the suit. The defendant admitted the plaintiff's allegation that the defendant took lease of the premises from Anadilal Mukherji for 21 years on the basis of the registered deed of lease at the monthly rental as alleged and that the lease was to expiry with the end of 15th August, 1979. It was contended that in the said registered lease it was agreed between the parties that the leasee would not vacate the lease-hold premises before the expiry of one full year from the date of the effect of the lease and that in case the lessee vacated within one year, the lessee would have to pay to the lessor full rent for the entire period of one-year less the amount he had already paid, and that the lessee would have the option to terminate the lease on giving one calendar month notice in writing expiring with the end of the month. The defendant contended that in view of the aforesaid conditions in the deed of lease, the defendant became a monthly tenant under the West Bengal Premises Tenancy Act, 1956 in respect of the suit premises under Anadilal Mukherji at the monthly rental as alleged. The tenancy, according to the defendant, was therefore not for a period of 21 years although it was so recited in the deed of lease which was void for uncertainty. The defendant denied the avoidance of any letter sent by the plaintiff or his predecessor-in-interest. The defendant, however, disputed the legality and validity of the notice/ letter sent by Anadilal Mukherji or the plaintiff. His further defence was that after the expiry of the lease for 21 years, the defendant became the monthly tenant and that the plaintiff agreed in the last week of July, 1979, to make a new monthly tenancy in respect of the suit premises at the monthly rental of Rs. 150 with the defendant for his residence therein as a tenant under him with effect from August, 1979 and that the said agreement was still subsisting. The plaintiff according to the defendant was, therefore, not entitled to get any relief in the suit.
( 5 ) THE parties went to the trial with the aforesaid pleadings and the learned trial court on consideratio
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