Judgment:
N.K. Agarwal, J.
1. Heard on admission.
2. The instant appeal is directed against the judgment and decree dated 1-2-1994 passed in Civil Appeal No. 81-A/1991 by 1st Additional District Judge, Raipur whereby the judgment and decree dated 19-10-1989 passed by the 2nd Civil Judge, Class II, Raipur in Civil Suit No. 168-A/1987, by which the respondent/plaintiffs suit for eviction and arrears of rent, has been decreed, has been affirmed.
3. The respondent/plaintiff filed a suit for eviction and arrears of rent against the appellant/defendant on the ground of Section 12(1)(a), 12(1)(c) and 12(1)(g) of the M.P. (C.G.) Accommodation Control Act (briefly 'the Act') and also claimed arrears of rent since 1983. As per the plaintiff, she purchased one house situated at Pandri, Raipur bearing Municipal No. 16/585 (old) and bearing No. 16/674 (new) vide registered sale deed dated 20-5-83 from its owner Top Singh Verma for a consideration of Rs. 40,000/- and the suit shop is part of this house.
4. From the date of purchase, the plaintiff became a landlord of the defendant. The suit house stands mutated in revenue papers as well as in Municipal Corporation records in the name of the plaintiff and she is paying revenue tax regularly. The defendant is tenant of suit house at monthly rent of Rs. 17/-. Oral intimation of purchase was given to the defendant. The defendant is in arrears of rent since 1983.
5. Earlier a Suit No. 10-A/85 was filed by the plaintiff against the defendant which was withdrawn by the plaintiff on 12-12-86. In that suit, the defendant in his examination-in-chief admitted that Top Singh Verma was his landlord and he is paying rent Rs. 17/- per month to Top Singh Verma.
6. A notice was sent by the plaintiff to defendant. In its reply, the defendant denied the title of the plaintiff and also relationship of landlord and tenant between the plaintiff and the defendant; also denied that he is in arrears of rent. She further pleaded that the suit house is in dilapidated condition and is not safe for human habitation and the same is required bonafide by the plaintiff for carrying out business, which cannot be done without the accommodation in question. The defendant in her written statement denied the relationship of landlord and tenant between the plaintiff and the defendant, title of the plaintiff; to be in arrears of rent and also that the suit house is in dilapidated condition and pleaded that Top Singh alone has no right to sell the house of the plaintiff as Bhikham Singh Verma and Top Singh Verma are co-owners of the suit house. The sale deed dated 20-5-83, which was alleged to be executed by Top Singh Verma for a consideration of Rs. 40,000/- is invalid and forged; does not contain signature of Top Singh Verma and Bhikham Singh; the plaintiff did not get any title over the suit house pursuant to the said sale deed; denied the oral intimation by plaintiff regarding purchase of the suit house; admitted sending of notice dated 8-4-87 by the plaintiff and sending of its reply, in which he categorically denied the relationship of landlord and tenant between plaintiff and defendant and also denied the title of the plaintiff and also said that the defendant is tenant of Bhikham Singh and Top Singh Verma.
7. The plaintiff examined herself and one Vishram son of Bharat. Defendant examined himself and one Arjun son of Lidga Das.
8. The Trial Court upon appreciation of the pleadings of the parties, material on record and the evidence led oral as well as documentary by the parties, held that the plaintiff is entitled for a decree of eviction on the ground of Section 12(1)(a) and Section 12(1)(c) of the Act and directed the defendant to hand over the vacant possession of the suit shop and also directed the defendant to pay arrears of rent of Rs. 612/- and to pay further rent at the rate of Rs. 17/-per month from the date of institution of the suit till its vacation along with cost of the suit.
9. The defendant preferred first appeal on the ground that learned Trial Court erred in holding the relationship of landlord and tenant between the plaintiff and the defendant; erred in holding the registered sale deed dated 20-5-83 (Exh. P-1) as proved; erred in passing decree under Section 12(1)(c) of Act; erred in holding that the defendant is in any arrears of rent since June, 1983 upto June, 1987. Apart from it, it was also argued by the defendant that despite depositing whole arrears of rent in the Court by the defendant, the decree passed under Section 12(1)(a) is also bad in law. The 1st Appellate Court on due consideration of submissions made by the parties, dismissed the appeal of the defendant and affirmed the judgment and decree passed by the Trial Court. Hence this second appeal.
10. On 1-5-96, the instant appeal was admitted on the following substantial question of law:
A. Whether the Courts below was right in granting the decree for eviction under Section 12(1)(a) of M.P. Accommodation Control Act, 1961, even though the appellant has deposited the rent in CCD?
B. Whether the appellant was entitled to benefit of Section 12(3) of the M.P. Accommodation Control Act, 1961?
C. Whether the Courts below could pass the decree under Section 12(1)(c) of the M.P. Accommodation Control Act, 1961, when the appellant, under the facts and circumstances of the case, challenged derivative title of the respondents?
11. Shri B.P. Sharma, learned Counsel for the appellant submits that as far as judgment and decree passed by both the Courts below on the ground of Section 12(1)(a) of the Act is concerned, the same is bad in law apparently on the face of the record inasmuch as the whole rent has been deposited by the defendant before the Trial Court; no order under Section 13(1), (2), (6) of the Act has been passed by the Court. He further submits that on reading of the contents of notice and its reply, the pleading of the parties and the documents placed on record, it would be clear that there is no denial of title in terms of Section 12(1)(c) of the Act and defendant only denied derivative title of the plaintiff; admitted Top Singh Verma as his landlord under threat of eviction. The defendant was paying rent to Top Singh Verma and Bhikham Singh Verma even after filing of the suit, Top Singh and Bhikham Singh being necessary party, they were not arrayed as party of the suit and in all these circumstances, denial of the title of the plaintiff by the defendant was bonafide and do not constitute ground of eviction as provided under Section 12(1)(c) of the Act and, therefore, the decree passed by both the Courts below deserves to be set aside. For his submission, he relied on the judgments in D. Satyanarayana v. P. Jagdish reported in : (1987) 4 SCC 424 (Paras 4 and 6), C. Chandramohan v. Sengottaiyan and Ors. reported in : (2000) 1 SCC 451 (Paras 16 and 17) and J.J. Lal Pvt. Ltd. and Ors. v. M.R. Murali and Anr. reported in : (2002) 3 SCC 98.
12. Per contra, Shri J.R. Verma, learned Counsel for the plaintiff/respondent supported the decree passed by both the Courts below and submitted that no substantial question of law arises for determination in this appeal and by placing reliance on the judgments of Supreme Court in case of (i) Smt. Sulochana v. Rajendra Singh 2008 SAR (Civil) 771, (ii) Ashok Kumar Gupta v. Vijay Kumar Agrawal 2002 SAR (Civil) 311, submitted that the appeal deserves to be dismissed.
13. I have heard learned Counsel for the parties, perused the record as well as the impugned judgment and decree.
14. The grounds on which the decree has been passed by the Trial Court are under Section 12(1)(a) and Section 12(1)(c) of the Act, which read thus:
12. (1)(a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner;
12. (1)(c) That the tenant or any person residing with him has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the interest of the landlord therein:
Provided that the use by a tenant of a portion of the accommodation as his office shall not be deemed to be an act inconsistent with the purpose for which he was admitted to the tenancy.
15. As far as decree passed by both the Courts below on the ground of Section 12(1)(a) of the Act is concerned, it is not seriously disputed by the Counsel for the respondent herein that the arrears of rent has already been deposited by the appellant/defendant herein by depositing the same in CCD. It is also not in dispute that in the written statement filed by the appellant, arrears of rent was disputed by him and order fixing provisional rent as to the amount of rent payable by the tenant or as to the person or persons to whom the rent is payable has not been fixed by the Court and, therefore, the decree passed on the ground of Section 12(1)(a) is not sustainable in law and deserves to be set aside. Substantial questions 'A' and 'B' are answered in the affirmative in favour of appellants.
16. The main controversy revolves around the decree passed under Section 12(1)(c) of the Act. I have carefully gone through the evidence oral and documentary led by the parties. In Paras 2, 3, 4, 6, 7, 8, 9, 11 and 12, the appellant categorically not only denied the title of the plaintiff herein but also denied the title of Top Singh by pleading that Top Singh and Bhikham Singh are co-owners and landlord of the suit house and also denied execution of the sale deed by Top Singh and right to execute sale deed by Top Singh alone, which runs counter to his admission in Exh. P-10, i.e., his statement recorded in Civil Suit No. 49-A/85, which was filed by one of other purchasers Usha Bai against the defendant himself. In that statement dated 30-8-86, he categorically stated that Top Singh filed a suit against him, obtained decree, the appeal was preferred and in between, a compromise dated 25-5-1983 was effected between the defendant and said Top Singh and thereafter Top Singh let out the suit house to him. It was also admitted in Exh. P-10 that the suit was filed by Top Singh alone. It was also admitted that after compromise, the defendant obtained possession of the suit house on 26-5-83. It is trite that the defendant cannot deny the title of his landlord. Admittedly, Top Singh was landlord of the defendant but as per the averment in written statement, he denied the title of Top Singh by pleading that Top Singh alone is not owner of the house. The defendant pleaded in written statement that the sale deed is obtained by fraud by the plaintiff, the same has been stated by the defendant in reply to demand notice (Exh. P-9), also in the earlier Civil Suit No. 10-A/85 filed by the plaintiff against the defendant whereas the evidence in the records reveals that he was aware about the order passed in Civil Suit No. 20-A/84 between Bhikham Singh v. Top Singh and present plaintiff and Usha Bai whereby the suit of Bhikham was dismissed being barred by the principle of res judicata (Section 11 of CPC) inasmuch as in Civil Suit No. 125-A/78, it was held by the Civil Court that the owner of the suit house is alone Top Singh; although in his statement (Exh. P-10), the defendant had said that after proceedings initiated by Usha Bai, he stopped payment of rent to everyone (Para 7 of his statement), also not examined either Top Singh or Bhikham Singh as his witness but he filed the receipts (Exhs. D-1 and D-2) in order to show that he is tenant of Top Singh and Bhikham Singh even after institution of the present suit by the plaintiff and to deny the relationship of landlord and tenant between the plaintiff and him. In the light of all these facts, it cannot be said that the defendant/appellant in fact denied simply the derivative title of the plaintiff. He has also denied the title of Top Singh, despite his admission that Top Singh alone was his landlord. The judgment of the Supreme Court in case of D. Satyanarayana v. P. Jagdish (supra), in Paras 4 and 6 on which reliance has been placed by the learned Counsel for the appellant, it has been categorically observed by the Supreme Court that the rule of estoppel 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. Paras 4 and 6 read thus:
4. 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. See: Bilas Kunwar v. Desraj Ranjit Singh ILR 1915 37 All 557 (PC) and Atyam Veerraju v. Pechetti Venkanna AIR 1966 SC 629. The general rule is however subject to certain exceptions. Thus, a tenant is not precluded from denying the derivative title of the persons claiming through the landlord. [See : Kumar Krishna Prasad Lai Singha Deo v. Baraboni Coal Concern Limited AIR 1937 PC 251. Similarly, the estoppel under Section 116 of the Evidence Act is restricted to the denial of the title at the commencement of the tenancy. From this, the exception follows, that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title-holder. In order to constitute eviction by title paramount, it has been established by decisions in England and in India, that it is not necessary that the tenant should be dispossessed or even that there should be a suit in ejectment against him. It will be sufficient if there was threat of eviction and if the tenant as a result of such threat attorns to the real owner, he can set up such eviction by way of defence either to an action for rent or to a suit in ejectment. If the tenant however gives up possession voluntary to the title-holder, he cannot claim the benefit of this rule. When the tenancy has been determined by eviction by title paramount, no question of estoppel arises under Section 116 of the Evidence Act. See: Adyanath Ghatak v. Krishna Prasad Singh AIR 1949 PC 124. The principle must equally apply when the tenant has attorned under a threat of eviction by the title paramount and there comes into existence a new jural relationship of landlord and tenant as between them. The law is stated in Vol. 27 Halsbury's Laws of England, 4th Edn. Para 238:
238. Eviction under title paramount: In order to constitute an eviction by a person claiming under title paramount it is not necessary that the tenant should be put out of possession, or that proceedings should be brought. A threat of eviction is sufficient, and if the tenant, in consequence of the threat, attorns to the claimant, he may set this up as an eviction by way of defence to an action for tent, subject to his proving the evictor's title. There is no eviction. However, if the tenant gives up possession voluntary.
Quite recently, this Court in Mangat Ram v. Sardar Meharban Singh (1987) 4 SCC 319, to which one of us was a party, observed: (SCC p. 327, Parall)
The estoppel contemplated by Section 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor has since come to an end.
6. The High Court failed to appreciate that there could be no order of termination in terms of Section 10(2)(i) [sic: (vi)] unless it could be said that in the facts and circumstances of the case, the dispute as to title was not bonafide. It cannot be said having regard to the facts that the appellant was under threat of eviction by the title paramount, that the rule of estoppel under Section 116 of the Evidence Act applied and, therefore, he was not entitled to dispute the title of the respondent. Furthermore, the appellant having on December 4, 1980 after being served with the notice of eviction attorned to the head lessor, there came into existence a direct tenancy. It has been brought to our notice that the appellant has since that date been paying rent to his present lessor Krishnamurthy and is not in arrears of rent. The order of eviction passed by the learned Chief Judge as well as the High Court against the appellant under Section 10(2)(i) and (vi) of the Act is not sustainable in law.
17. Shri B.P. Sharma tried to stress upon the following lines of the said paragraph - 'similarly, the estoppel under Section 116 of the Evidence Act is restricted to the denial of the title at the commencement of the tenancy. From this, the exception follows, that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title-holder'. A bare perusal of the above paragraph would show that if a tenant of a lessor if attorn to paramount title-holder, under a threat of eviction, then it cannot be a ground for eviction under Section 12(1)(c) of the Act. The position is different here in this case. In this case, eviction decree in favour of Top Singh alone has been passed on compromise. He accepted Top Singh as his landlord. It is not the case that he attorned in favour of any paramount title-holder under the threat of eviction, on the contrary, he denied the title of Top Singh as well as plaintiffs. The defendant in denying the title went to the extent that in Para 2 of his written statement, that he will never accept the plaintiff as his landlord. He will only accept as landlord to Top Singh and Bhikham both because they are alive. Meaning thereby he will not accept derivative title of plaintiff in any circumstance. Not only this, one of the grounds taken in first appeal was that there is no relationship of landlord and tenant and the Trial Court erred in holding the relationship of landlord and tenant between the plaintiff and defendant and, therefore, the conduct of defendant cannot be said to be bonafide in denying the derivative title of the plaintiff. Moreover, in view of provisions contained in Section 10(2)(vi) of AP. Buildings (Lease, Rent and Eviction) Control Act, 1960, in order to prove the ground of eviction under the said provision, it is also required to be proved as a fact that denial is not bonafide. The same is not the case under Section 12(1)(c) of the C.G. Accommodation Control Act. The appellant/defendant although pleaded that the sale deed executed by Top Singh in favour of plaintiff is bogus, but it was neither proved by him by leading cogent evidence nor he examined Top Singh and Bhikham Singh, and therefore also, it cannot be said that the defendant is bonafide in denying execution of the sale deed as bogus. The other cases cited by learned Counsel for the appellant are also of no help to him.
18. Looking to the facts and circumstances of the case, I am of the considered opinion that the appellant failed to make out any case that the decree passed under Section 12(1)(c) of the Act is bad. Substantial question of law 'C' framed in this regard is answered accordingly.
19. In view of the aforesaid discussion, as the plaintiff is entitled for a decree of eviction under Section 12(1)(c)of the Act, therefore, the appellant's success in getting set aside the decree under Section 12(1)(a) of the Act is not of much help to him as the judgment and decree is maintained.
20. The appeal is accordingly dismissed.