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IN THE HIGH COURT OF MADRAS
T. RAVINDRAN, J.
Hameedha and Others – Appellants
Versus
Dayalan – Respondent
S.A. No. 1384 of 2008, M.P. No. 1 of 2008
Decided On : 04-02-2021
Indian evidence Act – section 116 -Second appeal - Suit for recovery of arrears of rent with interest - rented out the portion of the property to one Hassan (since deceased) - He rented out not only the superstructure but also the business and the articles and it is a composite lease - The tenant, was permitted to use the electricity power and he defaulted to pay the rent and the period of tenancy also expired - Whether the judgment and decree of the Lower Appellate Court is vitiated by its failure to consider the provisions contained in Section 116 of the Indian Evidence Act in its proper perspective - Whether the findings of the Civil Court in the previous proceedings between the same parties for eviction are binding on the respondent and in the present proceedings – Held, There being a threat of eviction by a person claiming title paramount i.e. Head lessor, the appellant was not estopped under Section 116 of the Evidence Act from challenging the title and right to maintain the eviction proceedings of the respondent, as the lessor.The rule of estoppel embodied under Section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. During the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord's title by mere assertion of such a right to the knowledge of the landlord - The word 'during the continuation of the tenancy' in Section 116 mean during the continuance of the possession that was received under the tenancy in question. The rule of estoppel is thus restricted not only in extent but also in time i.e. restricted to the title of the landlord and during the continuance of the tenancy- second appeal allowed.
JUDGMENT :
T. RAVINDRAN, J.
1. Challenge in this second appeal is made to the judgment and decree dated 10.09.2008 passed in A.S. No. 21 of 2007 on the file of the Second Additional Subordinate Court, Cuddalore reversing the judgment and decree dated 09.01.2007 passed in O.S. No. 11 of 2006 on the file of the Principal District Munsif Court, Cuddalore.
2. The parties are referred to as per the rankings in the trial court. The defendants in O.S. No. 11 of 2006 are the appellants in this Second Appeal.
3. Suit for recovery of arrears of rent with interest.
4. The case of the plaintiff in brief is that the suit property was purchased by the plaintiff from one Selvambal and her husband Senthamarai Kanan by way of a sale receipt and took the possession of the property and also purchased the two service connections standing in the name of his vendors and the plaintiff had carried on a hotel business in the suit property. Subsequently, rented out the portion of the property to one Hassan (since deceased). He rented out not only the superstructure but also the business and the articles and it is a composite lease. The said Hassan, who was the tenant, was permitted to use the electricity power and he defaulted to pay the rent and the period of tenancy also expired. Hence the plaintiff filed the suit against him in O.S. No. 320 of 1993 on the file of the Subordinate Court, Cuddalore for recovery of possession. The said suit after contest was decreed and while the plaintiff was making arrangement to take the possession of the suit property in the occupation of Hassan, though disconnection was effected, Hassan had been taking/consuming the power illegally and subsequently also attempted to get a separate service connection in the suit property without the consent and knowledge of the plaintiff and the plaintiff also gave objection to the Electricity Board. Still the Electricity Board chose to give a separate service connection in the name of Dharmakartha, Arulmigu Bhagavathi Amman Temple. Hence the plaintiff was/necessitated to institute the suit in O.S. No. 260 of 2002 on the file of the District Munsif Court, Cuddalore and the same is still pending. Hassan has defaulted to pay the rent from 01.12.2002 and he died on 26.05.2004. The first defendant is his wife and the defendants 2 to 9 are his children and the defendants are the legal heirs of the deceased Hassan and they are in the suit property and carrying on the hotel business. Hence the defendants are liable to pay the arrears of rent from 01.12.2002 to 30.11.2005. Hence the suit.
5. The defendants resisted the plaintiff's suit contending that they are not aware of the purchase of the suit property by the plaintiff from one Selvambal and the suit levied by him in O.S. No. 320 of 1993 on the file of the Subordinate Court, Cuddalore. The site of the suit property belongs to Arulmigu Bagavathi Amman Temple and the plaintiff was only a tenant. The plaintiff sublet the portion of the property to one Hassan but it is not a composite lease. Hassan was in the possession of the property as a tenant of the temple. While so, the temple who is the paramount title holder, issued notice to Hassan on 30.09.2002 and took the possession of the property from Hassan on 31.05.2003 and thereafter Hassan was not in the possession of the suit property. The temple had taken the possession of the property and leased out to one Mohammed Abdul Kathar and it is only Mohammed Abdul Kathar who is in the possession and enjoyment of the suit property and these facts are very well known to the plaintiff and suppressing the same, the plaintiff has laid the suit on false allegations. The defendants are not aware of the obtainment of the service connection as pleaded by the plaintiff and denied that Hassan was occupying the suit property till his demise i.e. on 26.05.2004 and subsequent there to, the defendants are in the occupation of the suit property and carrying on the hotel business, the abovesaid allegations are total
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