The principle of estoppel contained in Section 116 of the Evidence Act does not apply to a case where a person claims to be a landlord on the basis of derivative title, but in such a case the principle of estoppel would be attracted if the tenant has attorned to the new owner of the premises.

Headnote:
DENIAL OF TITLE - RAJASTHAN PREMISES (CONTROL OF RENT AND EVICTION) ACT, 1950 - SECTION 13(1)(F) - ESTOPPEL - ATTORNMENT - DISCLAIMER - FORFEITURE - TRANSFER OF PROPERTY ACT, SECTION 111(G) - LANDLORD AND TENANT - RELATIONSHIP - RENT NOTE - SALE DEED - PARTITION - MORTGAGE - NOTICE - WRITTEN STATEMENT - EVIDENCE ACT, SECTION 116 - PRINCIPLE OF ESTOPPEL - DERIVATIVE TITLE - ACKNOWLEDGMENT - PAYMENT OF RENT - SUBMISSION TO DISTRESS - CONDUCT OF TENANT - NEGOTIATIONS FOR ENHANCEMENT OF RENT - DEPOSIT OF RENT - JUDGMENT OF COURT - BINDING EFFECT - CLEAR AND UNEQUIVOCAL DISCLAIMER - REPUDIATION OF LANDLORD'S TITLE - PLEA OF TENANT - CONSTRUCTION OF PLEA - MALA FIDES - BONA FIDE RAISING OF OBJECTIONS - TENANCY RIGHTS - CLARIFICATION OF TITLE - SALE TAX NUMBER - CONCURRENT FINDINGS OF FACT - SECOND APPEAL - INTERFERENCE.
Fact of the Case:

The suit premises were originally owned by Noor Mohammad and the sons of his brother Rahim Bux. It was mortgaged with Radha Kishan and Badri Narain by that aforesaid owners. Under a rent note executed on 23rd May, 1964, it was let out to Satyapal, appellant No. 2 and Suganmal (deceased) who were partners of M/s. Karachi Wine Store, appellant No. 1 with effect from 1st June, 1964 on a monthly rent of Rs. 80/-. After the death of Rahim Bux a partition took place between Noor Mohammed and the sons of Rahim Bux and as a result of the said partition the show room fell in the share of Noor Mohammad and that thereafter Noor Mohammad redeemed the mortgage and sold the show-room to the plaintiff-respondents under a registered sale deed dated 3rd July, 1961. An intimation about the said sale in favour of the plaintiff-respondents was given to the defendants by the respondents by their notice dated 31st July, 1968 whereby tenancy of the defendants was terminated and they were asked to handover the vacant possession of the premises on or before 31st August, 1968. Thereafter, on 7th Sept. 1968, the respondents filed the suit giving rise to the present appeal in the court of Munsiff Jaipur City (West) for the eviction of defendants from the premises and for recovery of Rs. 240/- towards rent for the period 1st June, 1969 to 31st August, 1968.
Finding of the Court:

The Court held that the defendants were estopped from denying the title of the plaintiff-respondents, as they had attorned in their favor by offering rent for the months of June and July, 1968, entering into negotiations with the plaintiffs for increase of the rent and depositing a sum of Rs. 1,280/- on account of rent of the premises vide receipt dated 10th September, 1969. The Court further held that the averments contained in paragraph 3 of the written statement (Ex. 60) in the subsequent suit filed by the plaintiffs against the defendants cannot be construed as a clear and unequivocal disclaimer of the title of the plaintiffs in respect of the suit property or renunciation by the defendants about their being tenants of the suit premises owned by the plaintiffs. Therefore, the suit of the plaintiffs for eviction of the defendants cannot be decreed on the ground of denial of title by the defendants under section 13 (1) (f) of the Act.
Issues: 1. Whether the defendants are estopped from denying the title of the plaintiff-respondents? 2. Whether in the facts and circumstances of the present case it can be said that the defendants have denied the title of the plaintiffs ?
Ratio Decidendi: 1. The principle of estoppel contained in Section 116 of the Evidence Act does not apply to a case where a person claims to be a landlord on the basis of derivative title, but in such a case the principle of estoppel would be attracted if the tenant has attorned to the new owner of the premises. 2. Attornment is one mode of recognising a person as one's landlord, just as payment of rent is another mode for the purpose. 3. A disclaimer or repudiation of the landlord's title must be clear and unequivocal and that unless there is a disclaimer or repudiation in char and unequivocal terms, whether the same be in a pleading or in other documents, no forfeiture is incurred. 4. The plea raised by the defendants in paragraph 3 of the written statement (Ex. 60) in the subsequent suit was not raised bona fide and by doing so the defendants have denied title of the plaintiffs and have incurred the liability of being evicted under section 13 (1) (f) of the Act.
Final Decision: Appeal allowed. The judgment and decree of the Addl. District Judge No. 4, Jaipur city dated 23rd February, 1187 affirming the judgment and decree dated 30th April, 1981 passed by the Addl. Munsiff and Judicial Magistrate No. 3, Jaipur city decreeing the suit for ejectment filed by the plaintiff-respondents against the appellants is set aside and the said suit filed by the plaintiff-respondents for ejectment of the appellants from the suit premises is dismissed. The cross-objections filed by the plaintiff-respondents in this appeal are also dismissed.

JUDGMENT

1. - This second appeal filed by the defendants arises out of a suit for eviction from a show-room which is situated at Mirza Ismail Road, Jaipur. The said show-room originally belonged to Noor Mohammad and the sons of his brother Rahim Bux. It was mortgaged with Radha Kishan and Badri Narain by that aforesaid owners. Under a rent note executed on 23rd May, 1964, it was let out to Satyapal, appellant No. 2 and Suganmal (deceased) who were partners of M/s. Karachi Wine Store, appellant No. 1 with effect from 1st June, 1964 on a monthly rent of Rs. 80/-. The case of the plaintiff respondents is that after the death of Rahim Bux a partition took place between Noor Mohammed and the sons of Rahim Bux and as a result of the said partition the show room fell in the share of Noor Mohammad and that thereafter Noor Mohammad redeemed the mortgage and sold the show-room to the plaintiff-respondents under a registered sale deed dated 3rd July, 1961. An intimation about the said sale in favour of the plaintiff-respondents was given to the defendants by the respondents by their notice dated 31st July, 1968 whereby tenancy of the defendants was terminated and they were asked to handover the vacant possession of the premises on or before 31st August, 1968. Thereafter, on 7th Sept. 1968, the respondents filed the suit giving rise to the present appeal in the court of Munsiff Jaipur City (West) for the eviction of defendants from the premises and for recovery of Rs. 240/- towards rent for the period 1st June, 1969 to 31st August, 1968. The said suit was contested by the defendants and one of the pleas raised by them was with regard to the rights of the plaintiff respondents to maintain the suit for the reason that the alleged partition where under the premises were said to have been given to Noor Mohammad was inadmissible in evidence as it was not registered and that Noor Mohammad could not become owner of the property on the basis of the said partition and be had no right to redeem the property and be could not sell the same to the plaintiffs.

2. On the basis of the aforesaid plea of the defendant's the trial court framed issue No. 1 as to whether the plaintiffs had purchased the property under sale-deed dated 1st June, 1968 and they are sole owners of the same and are entitled to maintain the suit. The said issue was decided against the plaintiffs by the trial court and the said finding was affirmed, on appeal, by the Additional District Judge No. 5, Jaipur City. This Court, on second appeal by its judgment and decree dated 23rd February, 1979 (in S B. Civil Second Appeal No. 175 of 1973) set aside the said finding recorded by the trial court and the first appellate court and held that there was no reason to disbelieve the statement of Noor Mohammad P. W. 3 that there was a partition in the family and the said property had come to the share of Noor Mohammad and the mortgage debt was also paid off by him and that the conduct of the mortgagees Radha Kishan and Badri Narain, as well as the sons of Rahim Bux in not claiming any rent from the defendants for such a long period and the fact that the plaintiff: served a notice on 31st July, 1968 immediately after the sale of the property on 1st June, 1968 and its registration done on 3rd June, 1968, shows that those persons had acquiesced, if not agreed to the a transaction of sale in favour of the plaintiffs. This Court also relied upon the conduct of the defendants and they held that they had attorned in favour of the plaintiffs and were estopped from challenging the title of the plaintiffs. This Court, therefore remanded the matter to the trial court for deciding the case on merits on the remaining issues in accordance with law. Thereafter the suit was tried by the Additional Munsiff and Judicial Magistrate first class No. 3, Jaipur City.

3. In the suit as originally filed the plaintiffs had sought ejectment of the defendants only on the ground of the bona fide and reasonable persona: neces

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1988 Supreme(Raj) 437

The principle of estoppel contained in Section 116 of the Evidence Act does not apply to a case where a person claims to be a landlord on the basis of derivative title, but in such a case the principle of estoppel would be attracted if the tenant has attorned to the new owner of the premises.

Cases Referred (3)