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Rajasthan High Court, Jaipur Bench
Sharma, J.
Mst. Yasoda - Appellant
Versus
Amar Nath - Respondents
Civil Second Appeal No. 309 of 1949
Decided On : July 30, 1954
The words during the continuance of the tenancy are very important. It is not enough that only a lease deed should be executed covering a certain property, but possession of the property under the lease should also be given to the tenant in pursuance of the lease. If any lease deed is executed, but no possession is given of the property thereunder, the lessee would be perfectly entitled to question the title of the lessor at the time of making of the lease. It is the possession under the lease which creates estoppel against the tenant and not the execution of the lease alone. The recitals in the lease amount only to an admission of the executant and he has got a perfect right to prove that they are not correct unless possession is given thereunder. Of course where the lease property belonged to the lessee and he transfers it to the lessor and thereafter gets a lease of that property from the transferee the nature of possession of the lessee changes and his previous possession would not entitle him to question the title of the lessor. Similarly where a lessee in possession of the lease property attorns to a transferee from the original lessor he cannot question the title of the transferee as by attorning to him he holds possession under the transferee. But where the lease property is in possession of a third person who continues in possession even after the lease and the possession of the said property is not transferred to the lessee in pursuance of the lease, the lessee has got a right to question the title of the lessor in respect of that property. If later, the executant of the lease acquires possession of the lease property otherwise than under the lease he is not barred to deny the title of the landlord. (Para 11).
2. The plaintiffs case is that the deceased defendant had executed a lease in respect of four propertied described by the plaintiff as properties PA, PB, PC and PD in the plan attached to the plaint and shown therein in red colour in favour of the deceased plaintiff with a rent of Rs. 40/- P.M. This property is situated in the town of Alwar. There was a stipulation in the lease that if the leassee did not pay rent for two months, the lessor would be entitled to have the properties vacated. It was stipulated that the lessor cold have the properties vacted also after one months notice. It was also stipulated that interest would be charged at the rate of 12% P.A. on arrears of rent. The plaintiff alleged that the deceased defendant had not paid rent for two months and, therefore, he was calle upon to vacte the property. A suit was, thererore, brought for ejectment and arrears of rent for 19-1/2 months at the rate of Rs. 40/- P.M. amounting to Rs. 780/- with interest and cost of notice. The total claim was thus laid for the recovery of Rs. 800/-.
3. It was alleged that defendants Nos. 2 to 9 were the sub-tenants of the property in suit on behalf of defandant No. 1 the lessee. A prayer was, therefore, made for the ejectment of all the defendants and for the recovery of Rs. 850/- against the deceased defendant No. 1.
4. Written statements were filed by all the defendants denying the plaintiffs title to the property in suit. It was alleged by defendant Nos. 2 to 9 that they were not the sub-tenants of the deceased defendant, but the sub-tenants of Laxminarain, father of the deceased defendant. It was pleaded by them that the plaintiff was not the owner of the property which was occupied by them. On behalf of the deceased defendant it was admitted that the lease-deed relied upon by the plaintiff way executed by him, but) he pleaded that it was not a genuine document but a fictitious one and was executed in collusion with the deceased plaintiff for saying the property from transfer by Laxminarain who was the real owner of the property. It was further pleaded that the deceased defendant had fallen out with his father Laxminarain and had been to the deceased plaintiff who was a lawyer for consultation and taking advantage of this circumstance, the deceased plaintiff got the lease in suit fictitiously executed and also obtained certain other documents fictitiously transferring the property in suit from the deceased defendant. It was pleaded that property PC was the property of Mst.Sampati and the remaining property belonged to Laxminarain and all the documents including the lease-deed in suit were got executed by the deceased plaintiff without the knowledge of Laxminarain and Mst Sampati. It was also pleaded that no possession was delivered by the deceased plaintiff in pursuance of the lease to the deceased defendant. It was finally pleaded that the suit in any case was not maintainable because no notice as stipulated by the lease-deed was given.
5. The suit was brought on 16th of March, 1942 in the court of the Munsif Alwar. Although written statements were filed by the defendants as shown above the suit was finally contested by the deceased defendant Laxmi-chand alone. The learned Munsif framed several issues and ultimately decreed the suit with respect of properties PA,PB and PC only and dismissed it so far as it related to property PD. On appeal by the defendant No, 1 and cross-objection by the plaintiff, the learned District Judge of Alwar allowed the appe
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