2016 Supreme(SC) 994

SUPREME COURT OF INDIA
A.K. SIKRI, ABHAY MANOHAR SAPRE, JJ.
Bismillah Be (Dead) by L.Rs. – Appellants
Versus
Majeed Shah – Respondent
Civil Appeal No. 11865-66 of 2016 (Arising out of SLP (C) Nos. 28516-28517 of 2010)
Decided On : 29-11-2016

IMPORTANT POINTS
Paying rent to the Assignee/Vendee of the tenanted property by the tenant results in creation of an attornment between the parties. In such a case tenant is deprived to challenge the derivative title of an Assignee/Vendee.
When a person acquires title of a property by successive sale and transfers and the tenant admits being tenant of the original owner, he becomes tenant of the present owner by operation of law. The present owner can determine the tenancy by serving quit notice u/s 116 of Evidence Act.
Dismissing second appeal in limine without mentioning the facts, the submissions of the appellant, the points arising in these appeals and legal principles applicable to the case is not permissible.
When out of four issues framed, three are influenced by decision on first issue and the first issue is decided erroneously, the decision cannot be sustained. It requires fresh decision on merits.

Headnote:(a) Indian Evidence Act, 1872 – Section 116 – Tenant is estopped from challenging title of his landlord during continuance of the tenancy – Yet, the tenant/lessee can challenge the derivative title of an Assignee/Vendee of the original landlord (Lessor) of the demised property under the Rent laws – This right is available to a tenant if he has not attorned to the Assignee/Vendee – Paying rent to the Assignee/Vendee of the tenanted property by the tenant results in creation of an attornment between the parties – In such a case tenant is deprived to challenge the derivative title of an Assignee/Vendee. (Para 26)

       (b) Indian Evidence Act, 1872 – Section 116 r/w section 12, M.P. Accommodation Control Act, 1961 – Title – Transfer of the property by original owner to a purchaser and ultimately to appellant proved – Respondent admitting being tenant of original owner – Respondent thus becoming tenant of appellant by operation of law – Appellant rightly determining the tenancy by serving quit notice to the respondent. (Para 29, 30)

       (c) Code of Civil Procedure, 1908 – Section 100 – High Court dismissing second appeal in limine without mentioning the facts, the submissions of the appellant, the points arising in these appeals and legal principles applicable to the case – Not permissible. (Para 32)

       (d) Constitution of India – Article 136 – Trial court erroneously deciding the first issue against appellant – Decision on other issues influenced by decision on first issue – Matter remanded to trial court for decision on merits. (Para 33, 34)

       Facts of the case:

       The appellant is the plaintiff (Landlord) whereas the respondent is the defendant (Tenant).

       One Rai Bahadur Motiram Mathuradas was the original owner of the several houses and a servant quarter situated at Street Nos. 10 & 11, Sadar Bazar Cantonment Jabalpur known as "Moti Bada" later known as "Allaha Baux compound". Rai Bahadur Motiram Mathuradas inducted respondent as his tenant in House no. 402 on monthly rent of Rs. 80/-.

       Rai Bahadur Motiram Mathuradas was an income-tax asseesee. He became the defaulter under the Income Tax Act, 1961 by not paying the taxes. The Income-Tax Department, therefore, initiated tax recovery proceedings.

       Before the arrears could be paid, Rai Bahadur Motiram died. His son Kasturilal Mathuradas, who inherited the properties of his late father, sought permission from the Income-Tax Department to sell Moti Bada property to enable him to clear the arrears. The Department granted the permission to Kasturilal.

       Kasturilal then sold Moti Bada property including suit house to one Vasant Kripalani. Vasant Kripalani, in turn, sold the said property same day jointly to six persons viz., Gyarsi Bai Chouksey, Lalta Bai Chouksey, Bhama Bai Chouksey, Bismilla Be (appellant herein), Idda Bai and Mohd. Jayed by executing another registered deed of sale dated 16.09.1974. Thereafter, these six persons, by registered partition deed, partitioned the said property amongst them. The suit house fell to the share of the appellant (plaintiff).

       The appellant then served legal notice to the respondent terminating his tenancy.

       The respondent replied to the notice wherein he admitted that he is in possession of the suit house for the last 50 years. He also admitted that the suit house originally belonged to Seth Motiram and that he was the tenant of Seth Motiram. But he denied existence of any relationship of landlord and tenant with the appellant in relation to the suit house and challenged his derivative title.

       The appellant then filed a civil suit against the respondent seeking respondent's eviction from the suit house under the M.P. Accommodation Control Act, 1961. The eviction was sought inter alia on the grounds covered under Section 12(1)(a), i.e., arrears of rent; 12(1)(c), i.e., nuisance created by the respondent; 12(1)(e), i.e., the appellant's bona fide need for his residence; and Section 12(1)(m), i.e., unauthorized construction made by the respondent without the permission of the appellant in the suit house.

       The Trial Court held that the appellant (plaintiff) was not able to prove the relationship of landlord and tenant with the respondent in relation to suit house. This being the main issue and the same having been answered against the appellant, it resulted in dismissal of the appellant’s suit.

       The District Judge dismissed the first appeal.

       The High Court dismissed the second appeal in limine saying that the appeal does not involve any substantial question of law.

       Finding of the Court:

       Impugned order is not sustainable.

       Result: Appeal allowed with cost.