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High Court Of Madhya Pradesh
Bishambhar Dayal, C. J. and K. L. Pandey, J.
LEKHRAJ DIDDI - Appellant
Versus
SAWAN SINGH - Respondents
Civil Revn. 168 Of 1970
Decided On : 01/29/1971
Lekhraj executed a sale deed in favour of Sawan Singh and executed a rent deed also. Lekhraj filed a suit for declaration that the sale-deed was not to be acted upon. Sawan Singh later on filed a suit for ejectment of Lekhraj on the basis of the rent deed.
Held: In the earlier suit the relief relates only to the sale-deed, no relief has been claimed in respect of the alleged contract of tenancy. Indeed in the plaint there is no reference to the contract of tenancy and all that is said is that interest "was to be paid in the guise of rent". It is obvious that the question whether or not there was a contract of tenancy is not directly and substantially in issue in the earlier suit. In these circumstances section 10 of the Code has no application. [Para 2
(2) Landlord and tenant-suit between original landlord and tenant for ejectment and arrears of rent-question of title-question of title outside the scope of the suit-contract of tenancy challenged by the tenant-question of title of landlord when becomes relevant.
(3) Evidence Act, 1872 - S.116 - contract of tenancy not admitted - estoppel does not arise.
It is well settled that in a suit for ejectment and arrears of rent, the basis of the claim is the contract of tenancy. That being so when the suit is between the original parties to that contract and there has been no transfer of title of the lessor, the question of title of the landlord is outside the scope of the suit. 1961 JLJ 230 relied on.
But where the tenant challenges the contract of tenancy, evidence about title of the lessor is a relevant fact for proof or disproof of the disputed contract of tenancy, but (any averment of existence or non-existence of title is not a material fact that can be tried in the suit. 28 MPLC 338 & C. Revn. No. 679 of 1966 approved as good law. [Para 3
(4) Civil P.C., 1908-O.14, R.1, O.6, R.2 & O. 6, R.16 - pleading of material facts and relevant facts - issues must be confined to material facts - issues on relevant facts if framed should be struck out.
Order 6, Rule 2, Civil Procedure Code, requires that a pleading should contain, and contain only, a statement in concise form of material facts only. Deviation from this rule is, however usual and relevant facts are also often pleaded. But the issues to be framed must be confined, as required by Order 14, Rule 1 of the Code, to material questions of facts (or law), to facta probanda and not to facta probantia, that is to say, the evidence by which material questions of fact are proved or disproved.
Allegations in a pleading may not be struck out under this rule merely on the ground that they are unnecessary, but if issues are wrongly framed on disputed evidentiary facts not necessary for determination of the suit and the Court declines to strike them out under Order 14, Rule 5 of the Code, such an order cannot be sustained. [Para 5
(5) Evidence Act, 1872 - S.92 - registered sale deed executed - for the building - vendor put as tenant - vendor contending that he was not a tenant and the sale-deed did not pass title alleging it to be a fictitious transaction - oral evidence when may be allowed - duty of civil Courts in such cases.
Once it is admitted or proved that a party has executed a sale-deed, then between the parties to the deed or their representatives-in-interest, no oral evidence can be led for the purpose of contradicting, varying, adding to or subtracting from its terms unless a case falling under any proviso to section 92 is specifically pleaded. In the absence of such a plea, there can be no question of lifting the viel and examining the nature of the transaction and effect must be given to the conclusiveness of the terms contained in the deed.
So. where the vendor has pleaded in the suit filed by him that before executing the sale-deed, it was clearly contracted that the sale-deed would not be given any effect and that, after repayment of the loan, it would be returned with an endorsement that it was a nominal transaction or, if so desired, a deed of reconveyance would be executed; the question, therefore, would be whether, upon approaching the case without any a priori notions about the nature of the transaction and without any pre-possession of judicial mind in favour of any of the rival versions and upon fairly considering the evidence as a whole, this contract set up in derogation of the sale-deed has been clearly established.
Speaking generally, this should be the approach to such questions raised in suits like the one filed by the vendor. [Para 6
( 1 ) THIS revision and two others, namely, Civil Revisions Nos. 203 and 204 of 1970, come before us on a reference made by Bhave, J. who has doubted the correctness of two earlier decisions of this Court. Before referring to the precise points in controversy, it is necessary to recall the facts of the case in the words of bhave, J. himself:
"the facts of the case, in brief, are that the applicant Sardar Sawan singh had obtained a registered sale deed for a consideration of Rs. 40,000/- from Lekhraj Diddi, the non-applicant. It was alleged that the premises so purchased were given to the non-applicant on rent. The non-applicant, however, committed default in payment of rent and hence the applicant filed the suit for ejectment of the non-applicant. The non-applicant stated in his written statement that the sale deed was nominal and was not to be acted upon. The amount alleged to have been paid towards rent was, as a matter of fact, paid towards interest on the amount of Rs. 40,000/- which the non-applicant had borrowed from the applicant. In other words, the plea was that the non-applicant was not the tenant of the applicant and was not, therefore, liable to be ejected. The abovesaid pleas were contained in paragraphs 3, 4 and 5 of the written statement. On these pleadings, necessary issues were framed. Issues Nos. 3 to 5 refer to the abovesaid pleadings of the non-applicant. On 23-12-1969 an application under Order 14, Rule 1, Civil P. C. was filed on behalf of the applicant to the effect that issues Nos. 3 to 5 should not be tried as they were irrelevant. That application was, however, rejected by the trial Court by its order dated 9-1-1970 on the ground that the issues were framed on the basis of the pleadings in the written statement and so long as the pleadings were not struck off, the issues also could not be omitted. After this, an application under Order 6, Rule 16, Civil P. C. was filed by the applicant on 10-1-1970 for striking out all references in the written statement questioning the title of the applicant, as the plea about title was foreign to the suit between the landlord and tenant. In paragraph 5 of the application, the portions to be struck off in paragraphs 3, 4 and 5 of the written, statement have been specifically mentioned. That application was dismissed by the trial court by its order dated 31-1-1970. Civil Revisions Nos. 203 of 1970 and 204 of 1970 are against the abovesaid two orders. It was held by the trial Court that inasmuch as the defendant had denied the tenancy, the pleadings setting up his own title were necessary to show that he could not have become the tenant of the plaintiff. At this stage, it may be mentioned that the non-applicant had also filed a suit for declaration that the sale deed in question was not to be acted upon and thus passed no title to the applicant. As the suit filed by the non-applicant was a previously instituted suit as it was alleged that common issues were involved in both the suits, the non-applicant had filed an application under Section 10 of the Code of Civil Procedure for staying the suit filed by the applicant till the disposal of the previous suit filed by the non-applicant. That application was also rejected by the trial court. The non-applicant has, therefore, preferred Civil Revision No. 168 of 1970. "( 2 ) WE have heard the learned counsel at some length on the question raised in these revisions and we do not think that Sk. Rashid v. Hussain Bakash, AIR 1943 nag 265 and Purushottamdas v. Gulabchand, Civil Revision No. 679 of 1966, decided on the 30th August 1967 require reconsideration for the reason that they do not lay down the correct law. In this case, the earlier Suit, No. 9-A of 1969, was filed by Lekhraj Diddi. The reliefs claimed in that suit relate only to the sale deed dated December 6, 1963. No relief has been claimed in respect of the alleged contract of tenancy. Indeed, there is in the plaint no reference to that contract of tenancy a
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