A.A. Dave, J.
1. This revision application is directed against the judgment and decree passed by the learned Second Extra Assistant Judge, Baroda dismissing Civil Appeal No. 18 of 1967 filed by the present petitioner against the judgment and decree passed by the learned Third Joint Civil Judge, Junior Division, Baroda in Civil Suit No. 28 Of 1965.
2. The facts giving rise to this revision application briefly stated are that the present petitioner Nanavati Jayantilal Chunilal is the original defendant while the opponent Shah Ashabhai Mahijibhai who is the holder of general power of attorney of Shah Rajnikant Ashalal, is the original plaintiff. I will, therefore, refer to the parties as plaintiff and defendant for the sake of convenience in this revision application.
3. The case of the plaintiff is that he is the owner of the house situated in Daji Shukla Khadki. Two rooms on the first floor and a room on the second floor were given on rent to the defendant from 26-9-1944 for which a rent note was executed by him on 29-9-1944; that after the expiry of the said rent note, the defendant was residing in the suit premises as a statutory tenant on a monthly rent of Rs. 25/-; that the plaintiff was staying at Africa, but he was to return in order to stay permanently in Baroda, His son Sudhir had already come to India and was studying in polytechnic of the M.S. University, Baroda. According to the plaintiff, therefore, the suit premises were bona fide and reasonably required by him for his personal use. He, therefore, served the defendant with a notice to quit after terminating his tenancy. The defendant by his reply, dated 13-11-1964 denied the title of the plaintiff and raised a plea of standard rent. I Thereupon, by a fresh notice, dated 30-11-1964 given under Section 114A of the Transfer of Property Act, the plaintiff called upon the defendant to give a specific reply to the denial of title which he failed to do and therefore his tenancy was forfeited on the ground of denial of title. The plaintiff, therefore, filed a suit claiming possession of the suit, premises on the grounds of bona fide and reasonable requirement and denial of title by the defendant. The defendant resisted the suit by written statement, Ex. 10. He admitted that he was a tenant of the suit premises, His say, however, was that the suit house was purchased by Ashabhai Mahijibhai in the name of his son and the real owner, therefore, was Ashabhai. According to the defendant, his son Rajnikant was already staying in Africa and therefore, the suit property was not bona fide and reasonably requited for the purpose of Rajnikant. He stated that the suit property was not bona fide and reasonably required by the plaintiff and in case a decree for eviction was passed, he would suffer greater hardship. He denied that he had disclaimed the title of the plaintiff. In fact, according to the defendant, sec, 114A of the Transfer of Property Act was not applicable to the facts of the present case. He, therefore, prayed that the suit be dismissed. From the pleadings of the parties, the learned trial Judge framed several issues. He passed a decree in favour of the plaintiff on the ground that the defendant had denied the title of the plaintiff. He held that the plaintiff did not requite the suit premises bona fide and reasonably for his personal use. Against the said decree, the defendant preferred an appeal in the district court at Baroda which was heard by the learned Second Extra Assistant Judge, Baroda. The learned Assistant Judge also negatived the contention of the plaintiff that he required the suit premises bora fide and reasonably for the personal use. He, however, upheld the finding of the learned trial Judge, that the defendant had denied the title of the plaintiff and accordingly, he confirmed the decree for eviction. Hence, the present revision application.
4. Mr. I.M. Nanavaty, learned Advocate who appeared for the petitioner submitted that firstly, the defendant had not denied the title of the plaintiff. Assuming that it was believed that the defendant had denied the title of the plaintiff, there was no ground for eviction against a statutory tenant under Section 12(1) or Section 13 of the Rent Control Act. He invited my attention to the definition of the 'landlord' which was very wide in its scope and urged that the suit property in fact was being managed by Ashabhai who was collecting rent from him and therefore according to the defendant, Ashabhai was the real owner. It was urged by Mr. Nanavaty that even if it is believed that the property was purchased by Ashabhai in the name of his son Rajnikant, that would not make Rajnikant, the owner of the property. He drew my attention to the fact that on the day of the sale, Rajnikant was hardly 17 years old and had no means of his own for earning. It was, therefore, clear that the property was in fact purchased by Ashabhai with his own money in the name of his son. He, therefore, urged that Ashabhai in fact could be the real owner while Rajnikant was Benamidar for him. He urged that the decree can follow on the ground of denial of landlord's title only if it was proved that Rajnikant was the landlord. Mr. Nanavaty urged that in order that a decree for eviction could be passed in favour of the plaintiff on the ground of disclaimer of the, title, it should be shown that there was a contractual tenancy subsisting between the parties and that the tenant had denied the title of his landlord during the subsistence of tenancy. In the instant case, the tenancy had already expired by efflux of time and the defendant thereafter resided in the suit premises as a statutory tenant. It cannot, therefore, be said that the statutory tenant would be liable for eviction on the ground of denial of landlord's title. He urged that a decree for eviction against a statutory tenant could be passed under the Rent Control Act only under the provisions of Section 12(1) or Section 13(1) of the Rent Control Act, hereinafter referred to as the- Act.
5. Mr. S.B. Majmudar, learned Advocate for the opponent urged that Section 12(1) was wide enough to include a statutory tenant who denied the title of the landlord in order to lose protection of the Act. He submitted that the words used in Section 12(1), 'other conditions of the tenancy' would include not merely express conditions but implied conditions also enjoined upon by the statute. He invited my attention to Section 116 of the Evidence Act which created an estoppel against the tenant by which it was not open to him to deny the title of the landlord. He urged that if the tenant had denied the title of the landlord under Section 111(g) of the Transfer of Property Act, it would be open to the landlord to terminate the tenancy and obtain a decree for eviction against him. He, therefore, urged that when under the statute, it was not open to the' tenant to deny the title of the landlord and if the defendant in the instant case by his reply to the notice specifically denied the title of the landlord, it would be open to the landlord to terminate his tenancy and file a suit for eviction on the grounds mentioned in Section 111(g) of the Transfer of Property Act and that ground would be covered by the words other conditions of the tenancy' mentioned in Section 12(1) of the Rent Control Act. Mr. Majmudar also urged that both the courts below were in error in holding that the plaintiff did not require the suit premises bona fide and reasonably for his personal use. He urged that there was no valid reason for the courts to believe that the plaintiff's suit was not bona fide. He urged that the conditions in Africa were not very secure and at any moment Rajnikant will be required to return to India. That apart, his wife and children had already returned to India and for their accommodation, the suit premises were required. He, therefore, urged that the appreciation of evidence made by both the courts below was contrary to the evidence on record and therefore, it was open to this Court even sitting in revision to change that finding recorded by both the courts below.
6. Mr. Nanavaty at the outset drew my attention to the fact that the plaintiff had not proved the document of sale as well as the rent note. He, therefore, urged that in the absence of any document of sale being formally proved, there was no reliable evidence showing that Rajnikant was in fact the owner of the suit property. He also urged that in the absence of any rent note, there was DO evidence as to what were the terms and conditions of the tenancy. He, therefore, urged that in order to deny protection of the Rent Control Act, to the defendant it was incumbent on the plaintiff to show that the defendant had not performed the conditions of the tenancy as stated in Section 12(1) of the Act. Mr. Nanavaty stated that by no stretch of argument, it could be said tin t disclaimer of title of the landlord would be said to be a condition of tenancy. In this connection, it will be worthwhile to refer to Section 12(1) of the Act which says-
12(1). A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay, the amount of the standard rent add permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.
Thus, there can be no dispute that a tenant would get protection of the provisions of the Act so long as he paid the standard rent or was ready and willing to pay the same and also performed the other conditions of tenancy in so far as they were not inconsistent with the provisions of the Act. If he failed to perform other conditions of tenancy, he would not be protected under the Act and it would entitle the plaintiff to get a decree for eviction under the general law. This position is admitted by the learned Advocates for both the sides. The question, however, is whether the present petitioner could be said to have not performed other conditions of the tenancy as mentioned in Section 12(1) of the Act. As already stated earlier, there is no evidence to show what were the terms and conditions of the tenancy before the trial court. Assuming that the rent note marked 3/6 is taken into consideration as duly proved, that rent note does not contain any condition which would entitle the plaintiff to obtain possession from the defendant on the ground of disclaimer of title. Normally, the words 'other conditions of the tenancy' would include terms and conditions arising under the contract between the parties. In the instant case, the defendant was a statutory tenant as stated by the plaintiff himself. No doubt, even after the expiry of the period of lease, if the defendant continues to stay in the premises, he may become a tenant by holding over as provided in Section 116 of the Transfer of Property Act or he may become a statutory tenant by virtue of existence of the Rent Control Act. In both the cases, if originally he had entered into the premises as a tenant Under some terms and conditions of tenancy, whether reduced to writing or orally, they would be binding to him even while he continued to reside in the suit premises as a statutory tenant. It is not the case of the plaintiff that there was any such condition in the rent note itself or orally agreed between the parties that if the defendant denied the title of the landlord, it would be open to the landlord to terminate his tenancy and obtain a decree against him. No doubt, under the provisions of the Transfer of Property Act, the landlord shall be entitled to terminate the tenancy if the tenant disclaimed his title in the suit premises. Section 111 of the Transfer of Property Act enumerates several modes for terminating the tenancy. But all the modes mentioned in Section 111 of the Transfer of Property Act do not entitle the landlord to obtain a decree under the Rent Control Act, and the provisions of the Transfer of Property Act could not be imported into the Rent Control Act unless by implication or specific provision of the Act itself, such import could be inferred. Section 108 of the Transfer of Property Act enumerates rights and liabilities of the lessor and lessee. This section does not include any clause entitling the lessor to claim possession on the ground of lessee disclaiming his title. Section 111(g) of the Transfer of Property Act states that:
A lease of immovable property determines:
(g) by forfeiture; that is to say. (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;
It will be seen that under Sub-clause (g), the landlord would be entitled to teminate the tenancy if the lessee committed a breach of express condition or he renounced his character by setting up a title in a third person or by claiming title in himself or the lessee is adjudicated an insolvent. Now, so far as third clause is concerned, even if the lessee is adjudicated an insolvent and the lease provides that the lessor my re-enter the premises on the happening of such event, that would not entitle the lessor to come before the court under the Rent Control Act claiming possession. In order to claim possession under the Act, the case of the landlord should fall either under Section 12(1) or Section 13(1) of the Act. If there is a breach of conditions of tenancy, the tenant no doubt would lose the protection of the Act as stated in Section 12(1). In that case, it would be open to the landlord to determine the tenancy by giving a notice and then obtain a decree for eviction against him. But all those grounds, which would entitle a lessor to re-enter as provided in the Transfer of Property Act would not be sufficient ground per-se to obtain a decree for eviction under the Act.
7. Mr. Majmudar was conscious of the limitations of Section 12(1) of the Act. That is why he wanted to interpret the words 'performs other conditions of the tenancy' by saying that other conditions need not be express but they may be implied also. He submitted that if under the general law viz., the Transfer of Property Act, the lessor was entitled to re-enter if the tenant renounces his title, it could be said that it was an implied condition of the tenancy. He urged that unless the tenant accepted the lessor as the owner of the property, there could not be any relationship of a landlord and tenant between them. Therefore the condition of acceptance by the tenant or his lessor as the owner of the property in a prerequisites condition of tenancy by implication. If he commits a breach of such material condition, the tenant would lose the protection under the Act and it would be open to the lessor to file a suit for eviction. I am unable to agree with the submissions made by Mr. Majmudar for the simple reason that if the tenant renounces the title of his landlord, there would not remain any relationship of the landlord and tenant between them and in that case, the court under the Rent Control Act would have no jurisdiction to deal with the matter. In such an eventuality, the landlord would be required to go to an ordinary civil court to file the suit against the tenant on the strength of his title. He cannot ask the court under the Rent Control Act to give a relief for possession on the ground of disclaimer of title. The very fact that as long as the tenant performed other conditions of tenancy, he would be entitled to protection of the Act goes to indicate that there must exist a tenancy between the parties before the court under the Rent Control Act could have jurisdiction over them. The moment a tenant disclaims the title of the landlord and sets up a title in a third person or himself, there would not be a relationship of landlord and tenant between them and in my opinion, the court under the Rent Control Act in that case would have no jurisdiction to decide such a case.
8. Mr. Majmudar invited my attention to Section 29A of the Act which states:
Nothing contained in Section 28 or 29 shall be deemed to bar a party to a suit preceding or appeal mentioned in which a question of title to premises arises and is determined, from suing in a competent Court to establish his title to such premises.
This section no doubt permits the court under the Rent Control Act to decide questions of title incidentally. If such questions are to be determined by the court for the purpose of finding out bona fide and reasonable requirement of the landlord or other grounds mentioned in Section 13(1) of the Act, it would be open to the court under the Rent Control Act to decide such questions of title. But if a tenant denies the title of the landlord, then as stated earlier, in my opinion, the court under the Rent Control Act could have no jurisdiction to deal with the said questions.
9. Assuming that the court had such jurisdiction, the pertinent question which arises for my consideration is whether the plaintiff has established that the defendant had renounced the title of the landlord and whether this is a sufficient ground for passing a decree for eviction against the tenant.
10. The defendant in his reply to the notice received by him from the plaintiff stated that the house in his possession was not of the ownership of Rajnikant but was of the ownership of Ashabhai Mahijibhai who was the general power of attorney holder of the said Rajnikant. It was Stated that it was Ashabhai who was collecting rent from him and other tenants. It was stated that even when the property was purchased in the name of Rajnikant, it was purchased Benami in the name of Rajnikant and the real owner was Ashabhai and not Rajnikant. It was, therefore, stated that only for the purpose of obtaining possession of the quit premises, the plaintiff had mala fide averred that the suit house was required for bona fide and reasonable need of Rajnikant. Relying on this reply, Mr. Majmudar urged that the defendant specifically had denied the title of Rajnikant in the suit premises. He urged that the defendant having agreed to stay in the suit premises as a tenant of Rajnikant, it would not be open to him to say that Rajnikant was not the real owner. In this connection, it may be noted that the defendant was occupying the suit premises as a tenant long before the house was purchased in the name of Rajnikant by Ashabhai. The evidence shows that the money for the building was supplied by Ashabhai. In fact, Rajnikant was hardly 17 years old at that time. The evidence shows that Rajnikant was residing in Africa for the last 16 years prior to the institution of the suit. It is, therefore, clear that Rajnikant never managed the property. It was not Rajnikant who had given this property on lease to the defendant. The evidence shows that after purchase of this house, a new rent note was got executed by Ashabhai through one Jivanlal who was his brother-in-law. It is true that the new rent note marked 3/6 is executed by the defendant in favour of Rajnikant Asharam. If this rent note is held proved, it could be said that the defendant had accepted Rajnikant as his landlord. But as already stated earlier, the plaintiff has not proved the rent note. The defendant has denied his signature in the rent note. The writer of the rent note is dead. Rajnikant was not present at the time of execution of the rent note. Under the circumstances, even though the writing of the rent note marked 3/ 6 is held to be in the hand of Jivanlal, the signature of the defendant over the rent note is not proved. The learned appellate Judge, therefore, was right in holding that the plaintiff had not proved the rent note marked 3/6. Even assuming that the defendant had executed the rent note in favour of Rajnikant, it would be open to him to say that even though the property was purchased in the name of Rajnikant, in fact, Ashabhai who was managing and collecting rent from the tenants was the real owner. He did not set up the title in himself. He did not set up a title in a third person. Ashabhai is the father of Rajnikant. It was, therefore, contended by the defendant that though the property was purchased in the name of Rajnikant, in fact, Ashabhai was the real owner as he had supplied the sale consideration. The defendant had clearly explained this position in his written statement as well as in his evidence before the court. He has categorically admitted that he was the tenant of the suit premises. Under the circumstances, it is difficult to agree with the submission made by Mr. Majmudar that the defendant in fact had dis-claimed or disowned the plaintiff as the owner of the property. He had not claimed any title in himself or in a third person. The definition of 'landlord' as given under Section 5(3) of the Act is wide enough to cover a person who actually manages the property and collects rent. This reply seems to have been given by the tenant in the particular background of this case. The plaintiff had filed this suit on the ground that he required the suit premises bona fide and reasonably for Rajnikant. In this background, the defendant came out with a case that Rajnikant was residing in Africa. Even though the property was purchased in his name, Ashabhai was the real owner and that Rajnikant did not require the suit premises for himself. In my opinion, therefore, both the courts below were clearly in error in holding that the defendant had disclaimed the title of the landlord in the suit premises. Assuming that in making a statement that Rajnikant was a benamidar and that the real owner was Ashabhai, the defendant had disclaimed the title, even then, that would not be a ground for obtaining a decree for eviction against the defendant under the Rent Control Act. In my opinion, denial of title of the landlord would furnish a good ground to the landlord to obtain a decree against the tenant under the provisions of the Transfer of Property Act. But that would not furnish him a ground for obtaining a decree under the Rent Control Act as it cannot be said to be a condition of tenancy. Before filing the suit for obtaining possession, the plaintiff had already terminated the tenancy of the defendant. According to the plaintiff, the defendant was a mere statutory tenant. Thus even if the title of the landlord was denied by the statutory tenant, that could not be said to be an act of renouncing the title as provided in Section 111(g) of the Transfer of Property Act. 1 entirely agree with the submission made by Mr. Majmudar that under Section 116 of the Evidence Act, a tenant was estopped from denying the title of the landlord. Section 116 says:
No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.
Thus, the bar of estoppel would come into play during the continuance of tenancy and not when the tenancy is determined. In the instant case, the tenancy was determined by the plaintiff by giving a notice and the defendant was continuing in the premises as a statutory tenant. It is, therefore, difficult to say whether the estoppel as envisaged in Section 116 of the Evidence Act would be applicable to the facts of the instant case. Even if it is believed that estoppel is available to the plaintiff in the case of a statutory tenant, that would not furnish him a valid ground for obtaining a decree under the Rent Control Act. A tenant does not lose his protection under the Rent Control Act merely by denying the title of his lessor. I have stated above that Section 12(1) of the Rent Control Act would come into play only if the tenant failed to pay the amount of standard rent and permitted increases and observe and perform other conditions of the tenancy. Disclaimer of title of the lessor by the tenant cannot be said to be a condition of tenancy as envisaged in Section 12(1) of the Act.
11. Mr. Majmudar referred to the case of Kantilal Ishwerlal Shah v. Dr. Mukundrai Keshavlal Parikh and Ors. 14, G.L.R. 227, wherein it was observed:
In view of Section 12(1) of the Rent Control Act, it is evident that the tenant whose contractual tenancy has been determined is entitled to a statutory protection, if he satisfies the condition, that he observes and performs the other conditions of the tenancy, provided they are consistent with the provisions of the Rent Control Act. If the tenant has disentitled himself to the protection under the Rent Control Act, the embargo placed upon the landlord's right to recover possession does not survive.
The rent note in the instant case contained a term that in the common passage kept for the tenants no articles or goods were to be placed. Such common passage was meant for the passage of the tenants including the present petitioner. It was not meant for storing his goods. There was express condition that he had not to store or place any goods thereon and he has committed a breach of that term. Such a covenant is touching the mode of enjoyment of the premises and hence the condition of the tenancy and not a personal obligation. Such a breach is in respect of a particular mode of enjoyment in connection with the subject matter of the demised premises. Therefore, such a breach would be a breach of the other condition of the tenancy contemplated by Section 12(1) of the Rent Control Act.
With respect, I am in entire agreement with the observations made therein. In that case, there was a specific term of tenancy under which the passage was to be kept open by the tenant. Contrary to this condition, he stored some articles in the passage. It was, therefore, held that he had committed a breach of the express condition of tenancy as contemplated in Section 12(1) of the Act. In the instant case, as already stated earlier, there is no such condition in the rent note marked 3/6. Even if this treat note is held proved, that would not be of any help to the plaintiff for the simple reason that it does not contain any condition which would enable the plaintiff to recover possession from his tenant on the ground of breach thereof.
12. Mr. Majmudar then referred to the unreported ruling by J.M. Sheth, J. in Civil Revision Application No. 348 of 1167 decided on 15th December 1971 wherein it was observed:
The right to possession arises and gets vested in the landlord when the tenancy is determined. In a case, in my opinion, when the tenancy is determined on the ground of forfeiture, in view of the provisions of Section 114-A of the Transfer of Property Act, on the right to recover possession by the landlord, there is an embargo placed. It is only if the landlord complied with the provisions of Section 114-A of the T.P. Act, then that fetter will go and under the general law, he will be entitled to recover possession. If such a right to recover possession under the general law has accused to the landlord and the tenant wants to claim protection, under the provisions of the Act, he has to show that his case falls within the four corners of the Act.
There can be no quarrel with the principle enunciated therein and with respect, I agree. In the instant case, the landlord has not relied on the provisions of Section 114A of the Transfer of Property Act. The say of the plaintiff-landlord is that as the defendant has committed a breach of the tenancy, he would not be entitled to the protection of the Rent Control Act as provided in Section 12(1) of the Act. It was therefore, urged by Mr. Nanavaty that if it is found that if any specific condition was broken by the tenant, the landlord, no doubt, would be entitled to possession. But, in the instant case, there was no such condition as alleged by Mr. Majmudar. Mr. Majmudar, however, stated that it was not necessary that such terms of tenancy should always be express and that they would be implied also in certain circumstances. He submitted that the relationship of landlord and tenant envisages that a tenant would respect the ownership of the landlord. That would mean an implied condition of tenancy and if the tenant in breach thereof disclaims the title of the landlord would certainly be entitled to recover possession by terminating his tenancy by giving a notice. In such a case, Mr. Majmudar urged, that the landlord shall be entitled to possession. 1 am unable to agree with him. As referred to earlier, the rights aud liabilities of lessor and lessee contained in the Transfer of Property Act did not provide that if the lessee disclaimed the title of the lessor, the lessor will be within his right to claim forfeiture. The estoppel which is created against the tenant is under Section 116 of the Evidence Act referred to earlier. Thus, if during the continuance of the tenancy, the tenant is estopped from denying the ownership of the landlord, and if he did so, the landlord would have right under the general law to recover possession from the tenant under the Transfer of Property Act. But in order to bring the case within the four corners of the Rent Control Act, it is necessary for the lessor to establish that there was a breach of the specific condition of the terms of tenancy. In my opinion, in the absence of any such condition in the Rent Note, it would not be open to the landlord to recover possession on the ground that the tenant had questioned his ownership over the suit property.
13. Mr. Majmudar referred to the case of Atyam Veeraju and Ors. v. Pechetti Venkanna and Ors. : [1966]1SCR831 , wherein it was observed:
During the continuance of the tenancy, a tenant will not be permitted to deny the title of the landlord at the beginning of the tenancy. Further, during the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord's by mere assertion of such a right to the knowledge of the landlord.
With respect, I am in full agreement with the principle of law laid down therein. In the instant case, it is not disputed that a landlord would be entitled to recover possession from the tenant if he disclaimed his ownership, under the general law. The question is whether he could claim possession through the court under the Rent Control Act. As already observed earlier, he can recover possession only under the provisions of Section 12(1) or Section 13(1) of the Act. As the case is not covered by any provision of Section 12(1) or Section 13(1) of the Act, in my opinion, the court under the Rent Control Act would have no authority to pass a decree for eviction against the tenant. Reliance was placed by Mr. Majmudar on the case of Glamour Cleaners v. Chandrakant Chhotalal Gandhi and Anr. 3, G.L.R. 941, wherein P.N. Bhagwati, J. (as he then was) observed as under:
It will be immediately noticed that Section 15(1) of the English Act of 1920 enacts in express terms that the statutory tenant shall be entitled to the benefit of all the terms and conditions of the original contract of tenancy. This provision is non-existent in Section 18(1) of the Rent Act. Under Section 12(1) of the Rent Act, therefore, the statutory tenant is not entitled to the benefit of any terms and conditions of the original contract of tenancy in the sense that if there are any terms and conditions which confer any rights on the tenant, the statutory tenant is not entitled to such rights. The statutory tenant is merely given the right to retain possession so long as he observes and performs 'the other conditions of the tenancy'. The words 'the other conditions of the tenancy' preceded by the words 'so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases' and governed by the words 'observes and performs' clearly show that the conditions of the tenancy referred to in Section 12(1) of the Rent Act are conditions in the nature of obligations which are to be observed and performed by the tenant under the original contract of tenancy. The words 'so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases' have a demonstrative and limiting effect and the phrase 'the other conditions of the tenancy' cannot be so construed as to disregard the effect of the first example and include all conditions of the original contract of tenancy.
I fail to understand how these observations could help him at all. As already stated earlier, the tenant in the instant case has been treated as a statutory tenant by the plaintiff and the suit has been brought on the basis that he was a statutory tenant. Thus, if the plaintiff wants to utilise any term of the original tenancy to his aid in order to get a decree for eviction against him, he has to fall necessarily within the purview of Section 12(1) of the Act. In the instant case, the plaintiff having failed to do so, would not be entitled to a decree merely on the ground that the tenant during the course of reply to the notice, had challenged his title in the suit property.
14. Mr. Majmudar, however, urged that if the tenant enters into possession of the premises by executing a Kabuliayt that is rent note, it would not be open to him to deny the title of the landlord during the subsistence of the tenancy and if he did so, the landlord will be entitled to recover possession from him. He referred to the case of Krishanarao Raghunath Yardi v. Chamon Ghama Valad Chima A.I.R. 1935, Bombay 144, wherein it was observed-
Where a tenant executes kabulayat and obtains possession of lands as tenant on the strength of the kabulayat he estopped from denying the title or seizing of his grantor on a suit for rent on the ground that he is merely a benamidar of some other person.
As already observed earlier, the plaintiff's right to file a suit for eviction against the tenant on the ground of disclaimer of title is not disputed at all. The question which arises for my consideration is whether it would be open to the court under the Rent Control Act to pass a decree for eviction on the ground that the tenant had denied the title of the landlord. In my opinion, ordinary court under the general law would be competent to pass such a decree and not the court under the Rent Control Act.
15. Coming to the facts of this case, it is difficult to agree with the submission made by Mr. Majmudar that in fact the tenant had disclaimed the title of the landlord. In the first notice, Ex. 22, served by Ashabhai Mahijibhai as the general power of attorney holder of the plaintiff Shah Rajnikant Ashalal. It was stated that as Rajnikant Ashalal who was in Africa was about to arrive in India and as his son Sudhir who was studying in polytechnic of M.S. University of Baroda, it was necessary to recover suit premises from him. It was clearly stated that after the first rent note had expired, no fresh rent note was executed between the parties and that because of the existence of the Rent Control Act, the tenant had continued to reside in the suit premises. Thus, his tenancy was terminated and was called upon to hand over possession of the suit premises on the ground of bona fide and reasonable requirement of the landlord. In this background, we have to appreciate the reply, Ex. 24 given by the tenant. In this reply, no doubt, it was stated that the suit house was not of the ownership of Rajnikant but it was of the ownership of Asharam. It was alleged that it was Asharam who was managing the suit property and was collecting rent from the tenants including the defendant. It was, therefore, stated that the real owner was Asharam and that Rajnikant was merely a Benamidar for him, and that only for the purpose of recovering possession, he had come out with a case that the property belonged to Rajnikant and for his bona fide requirement, it was needed. Thereafter, the plaintiff gave further notice, Ex. 25 calling upon the defendant to hand over possession under Section 114-A of the Transfer of Property Act as he had lost his right of tenancy by disclaiming the title of the landlord. No reply was given to this notice by the defendant. But in his written statement, the defendant came out with a clear case that he was the tenant of the suit premises. He did not deny that he was not the tenant of the suit premises. The defendant did not claim any ownership in himself. The defendant merely stated that Rajnikant was residing in Africa; that the property in fact belonged to Asharam and he was managing the property and was realising the rent and, therefore, the property was not bona fide and reasonably required by the landlord for his own needs. The defendant was in occupation of the suit premises even prior to the purchase of the house in the same of Rajnikant by Asharam. It would, therefore, be open to the tenant to challenge the statement that the property was bona fide and reasonably required for the purpose of the landlord. Assuming that Rajnikant was the owner because the property was purchased in his name, it would certainly be open to the tenant to say that as Rajnikant was residing in Africa, the property was not bona fide and reasonably required for his own use. In this background, it cannot be said that the tenant in fact had denied the title of the landlord. The tenant had merely stated that even though the property was purchased in the name of Rajnikant, in fact, Ashabhai was the real owner because it was Ashabhai who had provided funds for the purchase of the house. The evidence also shows that at the time of the purchase, Rajnikant was merely a boy 17 years old. He had no independent occupation of his own from which he could have supplied the sale consideration. There is, therefore, great substance in the statement made by the tenant in reply to the notice that Ashabhai applied to be the real owner. Looking to the facts of this case, therefore, I am not prepared to agree, with respect to the learned Judges below that the plaintiff would be entitled to a decree for eviction merely on the ground that the tenant had denied the ownership of the property in Rajnikant and had asserted that Rajnikant was a Benamidar for Asharam. Under the circumstances, the decree passed by the trial court for possession and confirmed by he District Court could not be sustained. In my opinion, this decree is not according to law. With respect to both the learned Judges, they have failed to consider properly the provisions of the Rent Control Act. In my opinion, the statutory presumption under Section 116 of the transfer of property which would give a cause of action to the landlord to Recover possession under Section 111(g) of the Transfer of Property Act, would not be available to a court under the Rent Control Act. It is open to him to file a suit in the ordinary court if so advised.
16. Mr. Majmudar, however, urged that the finding recorded by both the courts below that the plaintiff did not require the suit premises bona fide and reasonably for his personal use was erroneous. He urged that it was common knowledge that the condition in Africa had come to such a pass that it was difficult for the citizens of Indian origin to reside there any longer. Thus, if Rajnikant wanted to return to India and occupy his own house as his residence, it cannot be said that the suit premises were not bona fide and reasonably required by the landlord for his own need. It may be noted at the outset that there is a concurrent finding recorded by both the courts below. Both the courts have on appreciation of evidence, came to the conclusion that the plaintiff did not require the suit premises bona fide and reasonably for his personal use. The evidence shows that even till the suit was decided, the plaintiff had not returned to India from Africa. His wife and children though had returned from Africa were residing in other part of the suit premises which, according to the finding recorded by the learned Judge below, was sufficient for their needs. Under the circumstances, in the absence of any evidence showing that both the Courts below had grossly misappropriated the evidence or had recorded a finding which was not borne out from any evidence whatsoever, it would not be open to me sitting in revision, to interfere with the finding of fact recorded by the learned Assistant Judge. I see therefore, no reason to interfere with the same. In my opinion, the learned Judge was right in holding that the plaintiff did not require the suit premises bona fide and reasonably for his own use.
In the result, the revision application succeeds. The Judgment and decree of the learned Assistant Judge confirming the judgment and decree of the trial court are hereby set aside and the plaintiff's suit for possession is dismissed with costs throughout.