Vinod Kumar vs Ram Lakhan Prasad - 1977 Supreme(MP) 382

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Petitioners: P.R. Bhave
For the Non-petitioner: S.C. Pandey

Headnote:(1) Evidence Act, 1872 - S. 116 - estoppel - plaintiff letting the wit premises to the defendant - tenant is estopped from challenging plaintiff's title - but where the plaintiff has not tenanted the defendant and derives title from the person who has died - tenant challenging his title - S. 116 Evidence Act not attracted.
       (2) Accommodation Control Act, 1961 (M.P.) - S. 2 (b) - in an eviction suit tenant cannot challenge the title of the plaintiff who has given possession of the suit premises - but where the plaintiff is not himself the person who let the defendant into possession - claims derivative title - tenant can challenge the title.
       (3) Civil Procedure Code, 1908 - O. 14, R. 2 - issues - mixed question of law and fact - should not be decided preliminarily.
       Short Note
       1. The revision was directed against the order of the 1st Civil Judge Class II. By this order, the Civil Judge has decided to try certain issues preliminarily and had also overruled the plaintiff's objection that in a suit for eviction and arrears of rent, question of their title to the property could not be gone into, the tenant being estopped from denying their title under section 116 of the Evidence Act.
       2. Held: The bare perusal of the plaint would indicate that the plaid tiffs had not inducted the defendant as a tenant on the premises. They say, it was their grand father who had inducted him as a tenant. The grand - father left behind a 'will' and under that 'will' the plaintiffs claim ownership over the house of which the defendant is a tenant. The tenant in defence says that the tenancy was created by the plaintiff's father and not by their grand father. He says that the plaintiffs firstly acquire no title under a 'will' left behind by the grand - father, if at all, and secondly. since the tenancy was created by the plain~ tiff's father, he alone could sue for ejectment and arrears of rent. The law is settled that where the plaintiff has let the defendant into possession, his title cannot be challenged by the defendant. But where the plaintiff is not himself the person who let the defendant into possession but claims a title derived from the person who died, the tenant would not be estopped from questioning his derivative title which may either be by assignment, gift, sale, device, lease or by inheritance, including in a case of' Hindu, claiming by adoption. The derivative title from the lessor has to be proved before the plaintiff - succeeds. The tenant is free to show that the title in fact vests in somebody else. The trial Court was right in saying that the plaintiff's derivative title under a 'will' should be enquired.
       3. The issues (1) (9) and (10) proposed to be heard preliminarily are on pleadings relating to the plaintiff's derivative title as against the title set up in plaintiff's father who, the tenant says, had created tenancy. This Court fails to see how those issues could be heard preliminarily. They are not issues of law but of fact and the decision on those issues would invite almost the major part of evidence. The other issues touch upon validity of the notice and the grounds of eviction. This Court accepts the revision and direct the Civil judge to bear all the issues on merits instead of hearing issues (1), (9) and (10) preliminarily. Major S. S. Khanna v. Brig. F. J. Dillon, AIR 1964 SC 497, relied on. Revision allowed.