BISMILLAH BE (DEAD) BY LRS. Vs. MAJEED SHAH
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 11865-66 of 2016, Judgment Date: Nov 29, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.11865-66 OF 2016
(ARISING OUT OF SLP (C) Nos. 28516-28517 of 2010)
Bismillah Be (Dead) by L.Rs. …….Appellant(s)
VERSUS
Majeed Shah ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) These appeals are filed against the final judgments and orders dated
27.11.2009 in Second Appeal No. 1097 of 2007 and 15.01.2010 in Review
Petition No. 656 of 2009 passed by the High Court of Judicature at
Jabalpur, Madhya Pradesh whereby the High Court dismissed second appeal and
the review petition filed by the appellant herein.
3) In order to appreciate the short controversy involved in these
appeals, few relevant facts need mention infra.
4) The appellant is the plaintiff (Landlord) whereas the respondent is
the defendant (Tenant).
5) One Rai Bahadur Motiram Mathuradas was the original owner of the
several houses bearing nos. 58, 58-A, 58-B, 58-C, 58-D, 395, 397, 397-A,
398 to 403, 403-A to 403-D and servant quarter Nos. 1-16 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 (hereinafter referred to as "the
suit house") on monthly rent of Rs. 80/-.
6) Rai Bahadur Motiram Mathuradas was an income-tax asseesee. He did not
pay his taxes and thus became the defaulter under the Income Tax Act, 1961
(for short "The Act”). The Income-Tax Department, therefore, initiated tax
recovery proceedings.
7) 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.
8) Kasturilal then sold Moti Bada property including suit house to one
Vasant Kripalani. The Income Tax Department issued the sale certificate on
11.06.1974 (Ex P -4) in favour of the purchaser pursuant thereto Kasturilal
executed registered sale deed dated 16.09.1974 (Ex -P-6) in favour of
Vasant Kripalani, who 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 (Annexure- P-7).
Thereafter, these six persons, by registered partition deed dated
14.03.1984 (Annexure-8), partitioned the said property amongst them. So far
as the suit house is concerned, it fell to the share of the appellant
(plaintiff). This is how, the appellant became the sole owner of the suit
house.
9) The appellant then on 08.05.2003 served legal notice (Annexure-P-9)
to the respondent terminating his tenancy. The appellant called upon the
respondent to pay the arrears of rent at the rate of Rs. 80/- p.m. for a
period of three years preceding the date of notice and also called upon the
respondent to vacate the suit house on the ground that he made unauthorized
construction in the suit house without seeking the permission of the
appellant.
10) The respondent replied to the notice (Annexure P-10) wherein he
admitted that he is in possession of the suit house for the last 50 years.
He also admitted that the suit house was originally belonged to Seth
Motiram and that he was the tenant of Seth Motiram. He also said that on
Seth Motiram's death, the Cantonment Board acquired the suit house because
he did not leave any successor to inherit his property. This is how the
respondent denied existence of any relationship of landlord and tenant with
the appellant in relation to the suit house and challenged his derivative
title.
11) The appellant then filed a civil suit against the respondent in the
Court of Civil Judge, Class I, Jabalpur 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.
12) The respondent filed his written statement. He reiterated his stand,
which he had taken in reply to the appellant's legal notice. While
admitting the ownership of original owner Rai Bahadur Motiram so also the
creation of tenancy by Motiram with him in relation to the suit house
denied such creation with the appellant. He further denied the grounds
pleaded by the appellant for claiming his eviction from the suit house.
13) The Trial Court framed issues on the basis of the aforesaid
pleadings. Issue no.1 was whether the appellant (plaintiff) has proved the
relationship of landlord and tenant with the respondent in relation to suit
house and, if so, its effect.
14) 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 though the Trial Court also answered other issues.
15) The appellant, felt aggrieved, filed an appeal before the Court of
VIII Additional District Judge, Jabalpur being Civil Appeal No. 15-A of
2006. By order dated 28.03.2007, the District Judge dismissed the appeal.
16) Against the said order, the appellant filed second appeal being
S.A. No. 1097 of 2007 in the High Court. By impugned order dated
27.11.2009, the High Court dismissed the appeal in limine saying that the
appeal does not involve any substantial question of law. It was held that
since both the Courts below have dismissed the suit by answering the issue
of relationship of landlord and the tenant against the appellant and also
on other issues, such findings are concurrent findings of fact and are
binding on the High Court. The High Court, however, neither set out the
facts of the case and nor the legal principle applicable to such
controversy.
17) Against the judgment of the High Court in second appeal, the
appellant filed review petition being Review Petition No. 656 of 2009
before the High Court. By judgment dated 15.01.2010, the High Court
dismissed the said review petition.
18) Challenging the judgment in the second appeal and the review
petition, the appellant(plaintiff) has filed these appeals by special
leave before this Court.
19) Heard Mr. Puneet Jain, learned counsel for the appellant and Mr.
Anoop Kr. Srivastav, learned counsel for the respondent.
20) Mr. Puneet Jain, learned counsel for the appellant (plaintiff), while
assailing the impugned order has urged three points. In the first place,
learned counsel submitted that all the three Courts below erred in
dismissing the appellant's suit. It was his submission that the Courts
below failed to even see much less apply the law dealing with "challenge to
derivative title of the landlord" to the facts of the case. Learned counsel
urged that on facts pleaded and the documents filed by the appellant
coupled with the admission of the respondent in his reply to the
appellant's legal notice and in his written statement wherein he had, in no
uncertain terms, admitted the ownership of original landlord in relation to
the suit house and also admitted creation of tenancy between him and the
original landlord, the Courts below should have answered the issue in
favour of the appellant by holding that the appellant was able to discharge
his burden by proving his ownership over the suit house and, in turn, was
also able to prove the devolution of original tenancy on the appellant with
the respondent by operation of law. It was his submission that the
respondent simply challenged the appellant’s title but failed to prove his
case, which was pleaded in the written statement whereas the appellant was
able to prove the title of original landlord and also her own and thus
discharged the burden.
21) In the second place, learned counsel submitted that since the
appellant's suit was dismissed on the ground that the appellant failed to
establish the relationship of landlord and the tenant with the respondent
in relation to suit house, the other questions as to whether any ground
pleaded by the appellant for respondent's eviction from the suit house
though considered but not properly by the courts below on merits. Learned
counsel, therefore, urged that the case should be remanded to the Trial
Court for deciding the question afresh as to whether any ground for
eviction under Section 12(1) of the M.P. Accommodation Control Act is made
out on merits against the respondent.
22) In the third place, learned counsel submitted that the High Court
erred in summarily dismissing the appellant's second appeal on the ground
that it did not involve any substantial question of law. It was urged that
the High Court should have admitted the appeal by framing substantial
questions of law, which, according to learned counsel, did arise in the
case and the questions framed should have been answered by decreeing the
appellant’s suit against the respondent.
23) In reply, learned counsel for the respondent (defendant) supported
the impugned order and prayed for dismissal of the appeal.
24) Having heard the learned counsel for the parties and on perusal of
the record of the case, we find force in the submissions of the learned
counsel for the appellant.
25) Law relating to derivative title of the landlord (Lessor) and
challenge, if made, to such title by the tenant (Lessee) during subsistence
of tenancy in relation to demised property is fairly well settled. Though
by virtue of Section 116 of the Evidence Act, 1872, the tenant is estopped
from challenging the title of his landlord during continuance of the
tenancy, yet the tenant/lessee is entitled to challenge the derivative
title of an Assignee/Vendee of the original landlord (Lessor) of the
demised property in an action brought by the Assignee/Vendee against the
tenant for his eviction from the demised property under the Rent laws. This
right of a tenant is, however, subject to one caveat that the
tenant/lessee has not attorned to the Assignee/Vendee. In other words, if
the tenant/lessee pays rent to the Assignee/Vendee of the tenanted property
then it results in creation of an attornment between the parties which, in
turn, deprives the tenant/lessee to challenge the derivative title of an
Assignee/Vendee in the proceedings.
26) However, once the Assignee/Vendee proves his title to the demised
property, the original tenancy devolves on the Assignee/Vendee and
tenant/lessee by operation of law on the same terms and conditions on which
it was entered into with the original landlord/lessor and continues till
either modified by the parties or is determined by the landlord in
accordance with law. It enables the Assignee/Vendee to acquire the status
of a "new landlord" in place of the original landlord of the demised
premises qua tenant/lessee. (See Law of Evidence by Sarkar, 16th Edition,
pages 2106-2108).
27) Keeping the aforementioned principle of law in mind and applying the
same to the facts of the case, we are of the considered opinion that the
appellant (plaintiff) has proved his title to the suit house so also the
relationship of landlord and tenant with the respondent in relation to suit
house. This we say for more than one reason stated infra.
28) First, it is an admitted fact that Rai Bahadur Motiram Mathuradas was
the original owner of the suit house, which was a part of Moti Bada.
Second, it is also an admitted fact that the respondent was inducted as a
tenant by Rai Bahadur Motiram Mathuradas in the suit house. Third, the
respondent, in his reply, has admitted the aforesaid two facts in para 4 of
his reply to the appellant’s legal notice and in para 13 of his written
statement. Fourth, the suit house was sold after obtaining permission from
Income Tax Department to Mr. Kriplani by registered deed of sale dated
16.09.1974 and Mr. Kriplani, in turn, sold to six persons, which included
the appellant, by another registered deed of sale dated 16.09.1974. Fifth,
these six persons (co-owners) then by registered deed of partition dated
14.03.1984 effected partition inter se and the suit house fell to the share
of the appellant herein. Sixth, all these five facts enumerated herein were
duly proved by the appellant by first pleading in the plaint and then by
filing documentary evidence. Seventh, the appellant served quit notice to
the respondent setting out therein all these facts. Eighth, the respondent
failed to adduce any evidence in rebuttal to disprove the appellant's case
except bald denial of the appellant's title over the suit house and lastly,
the respondent having admitted the ownership of his original landlord and
his tenancy with the original landlord, he became the appellant's tenant by
operation of law on the appellant's proving his title over the suit house.
29) In the light of aforementioned eight reasons, we find no difficulty
in holding that the appellant proved her title over the suit house and thus
she became a landlady of the suit house. In consequence thereof, the
respondent became her tenant by operation of law on the same terms as
agreed upon with the original landlord. The appellant then rightly
determined the tenancy by serving quit notice to the respondent.
30) In the light of foregoing discussion, we answer issue nos. 1, 2 and 3
framed by the Trial Court in favour of the appellant (plaintiff) and
against the respondent (defendant) and accordingly hold that the appellant
(plaintiff) is the owner/landlord of the suit house whereas the
respondent(defendant) is the appellant's tenant and there exists
relationship of landlord and tenant between the appellant and the
respondent in relation to the suit house; second, the respondent
(defendant) is the tenant at the rate of Rs. 80/- per month and third, the
appellant(plaintiff) has served proper quit notice on the respondent
(defendant) demanding balanced rent .
31) In view of what is held above, it is not necessary to remand the case
to the High Court for deciding the second appeal afresh on merits which, in
our view, did involve the substantial questions of law within the meaning
of Section 100 of the Code of Civil Procedure,1908 and deserved its
admission for final hearing.
32) The cursory disposal of the second appeal in limine by the High Court
without mentioning the facts, the submissions of the appellant, the points
arising in these appeals and legal principles applicable to the case can
not be countenanced.
33) Though the Trial Court has also recorded findings on other issues
against the appellant but we find that the findings on other issues were
influenced by the findings given on the first three issues.
34) In our view, in the light of the reversal of findings of three
courts by this Court, it would be just and proper that the case is
remanded to the Trial Court (Civil Judge Class I), Jabalpur for deciding
the suit afresh on merits on issues nos. 4 to 11 which relate to grounds
for seeking eviction under Section 12 of the Act.
35) Parties are granted liberty to amend the pleadings, in case if they
so wish, in support of their case pleaded in relation to issue nos. 4 and
11. Parties are also granted liberty to lead additional evidence in
addition to what has been already adduced in support of their respective
pleadings on these issues. The Trial Court shall decide the suit on merits
on issues nos. 4 to 11 in accordance with law within 6 months from the date
of appearance of the parties before him.
36) In view of foregoing discussion, these appeals succeed and are
allowed with costs of Rs.5000/- payable by the respondent to the appellant.
The impugned judgments of the High Court, first Appellate Court and the
Trial Court are set aside. The civil suit out of which these appeals arise
is restored to its file. Parties to appear before the Trial Court on
03.01.2017 to enable the Trial Court to proceed in the matter, as directed,
in accordance with law.
………...................................J.
[A.K. SIKRI]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
November 29, 2016
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