D.
Satyanarayana Vs. P. Jagadish [1987] INSC 252 (15 September 1987)
SEN,
A.P. (J) SEN, A.P. (J) RAY, B.C. (J)
CITATION:
1987 AIR 2192 1988 SCR (1) 145 1987 SCC (4) 424 JT 1987 (3) 571 1987 SCALE
(2)577
CITATOR
INFO : D 1990 SC 636 (6,11)
ACT:
Andhra
Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960: s. 10(2)(i)
& (vi)-Sub-tenant-Eviction of by tenant-No finding regarding bonafides of
dispute as to title-Sub-tenant attorns to and paying rent to the landlord-
order of eviction-Validity of.
Evidence
Act,1872 : s. 116-Rule of estoppel-sub-tenant under threat of eviction by title
paramount-Attorns to landlord-Whether estopped from denying tenant's title in
eviction proceedings by tenant.
HEADNOTE:
The
appellant was a sub-tenant of the tenant- respondent. The landlord served a
notice of eviction on him in November, 1980 alleging that there was unlawful
subletting by the respondent and that he had decided to terminate the tenancy
with the expiry of that month. The appellant thereupon attorned in favour of
the landlord agreeing to pay him the rent. After becoming the direct tenant,
the appellant stopped paying rent to the respondent.
The
respondent asserting to be the lessor commenced proceedings for eviction of the
appellant under s. 10(2)(i) and (vi) and s. 10(3)(b)(iii) of the Andhra Pradesh
Buildings (Lease, Rent and Eviction) Act, 1960 on the ground that the appellant
was in willful default in payment of rent, that there was denial of title on
appellant's part, and that he required the premises bona fide for his use. F
The Rent Controller disallowed the application on the ground that the
respondent not being a lessor had no locus stand to initiate the
proceedings-for eviction. The first appellate court, however, directed eviction
of the appellant under s. 10(2)(i) and (vi), holding that in view of the denial
of respondent's title as well as non-payment of rent, the appellant was
estopped from denying the title. The High Court having upheld this view, the
appellant appealed to this Court by special leave.
Allowing
the appeal, ^
HELD:
1. There could be no order of termination in terms of s. H 146 10(2)(i) of the
Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act unless it could
be said that in the facts and circumstances of the case the dispute as to title
was not bona fide. In the instant case, there is no such finding by the High
Court. Furthermore, the appellant could not be treated to be in arrears of rent
since he has been paying rent to the head lessor. Therefore, the order of
eviction passed against the appellant under s. 10(2)(i) and (vi) of the Act is
not sustainable in law. [151G; 152B]
2.1
The rule of estoppel embodied under s. 116 of the Evidence Act is that a tenant
who has been let into possession cannot deny his landlord's title at the
commencement of the tenancy, 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. The words 'during
the continuation of the tenancy' occurring in s. 116 of the Evidence Act mean
"during the continuance of the possession that was received under the
tenancy in question." The rule of estoppel is thus restricted not only in
extent but also in time, i.e., restricted to the title of the landlord and
during the continuance of the tenancy. [149E-F; C-D]
2.2
The general rule of estoppel under s. 116 is, however, subject to certain
exceptions, in that, a tenant is not precluded from denying the derivative
title of the persons claiming through the landlord. Similarly, such estoppel is
restricted to the denial of the title at the commencement of the tenancy, it is
open to the tenant even without surrendering possession to show that since the
date of 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. [149G-H; 150A-B]
2.3
In order to constitute eviction by title paramount it is not necessary that the
tenant should be dispossessed or even that there should be a suit of 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 voluntarily 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 s. 116 of the Evidence 147 Act. 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. [150B-D] In the instant case, having regard to the fact that the
appellant was under threat of eviction by the title paramount, it cannot be
said that the rule of estoppel under s. 116 of the Evidence Act applied and
therefore, he was not entitled to dispute the title of the respondent.
Furthermore,
the appellant having, after being served with the notice of eviction, attorned
to the head lessor, there came into existence a direct tenancy. [151H; 152A-B]
Bilas Kunwar v. Desraj Ranjit Singh, ILR (1915) All. 557 (PC); Atyam Veerraju
& ors. v. Pechetti Venkanna & Ors., [1966] 1 SCR 831; Kumar Krishna
Prosad Lal Singha Deo v. Baraboni Coal Concern Limited & ors., AIR 1937 PC
251;
Adyanath
Ghatak v. Krishna Prasad Singh & Anr., AIR (1949) PC 124; 27Halsbury's Laws
of England, 4th Edn., pars 238;
Mangat
Ram & Anr. v. Sardar Meharban Singh & ors., [1987] 1 Scale 964, Fide
Hussain v. Fazal Hussain & ors., AIR (1963) MP 232; K.S.M. Curuswamy Nadar
v. N.G. Ranganathan, AIR (1954) Mad, 402; S.A.A. Annamalai Chettiar v. Molaiyan
& ors., AIR (1970) Mad. 396 and Chidambara Vinayagar Devasthanam v.
Duraiswamy, ILR (1967) 1 Mad. 624, referred to,
Civil
Appellate Jurisdiction: Civil Appeal No. 2223 of 1987.
From
the Judgment and order dated 21.8.1986 of the Andhra Pradesh High Court in
C.R.P. No. 1518 of 1985.
A.K.
Ganguli and A. Mariarputham for the Appellant. G. Narasimhulu for the
Respondent.
The
Judgment of the Court was delivered by SEN, J. This appeal by special leave
brought from the judgment and order of the High Court of Andhra Pradesh dated
August 21, 1986 raises a question of general importance. The High Court has
upheld the judgment of the Chief Judge, City Small Causes Court dated April 29,
1985 directing the eviction of the appellant from the demised premises under s.
10(2)(vi)
of the Andhra Pradesh Buildings (Lease, Rent 148 & Eviction) Control Act,
1960. The question is whether the appellant was estopped from denying the title
of the lessor under s. 116 of the Evidence Act, 1872 despite the fact that
there was threat of eviction by the owner of the demised premises one
Krishnamurthy i.e. the person having title paramount.
There
is no material point of fact which is now in dispute. The demised premises
which is a removable wooden cabin or kiosk located at one corner of a building
belonging to one Krishnamurthy was let out on a rent of Rs. 6 per day which
later was increased to Rs. 10, by the respondent P. Jagadish, son of the
original tenant P.R.N. Upadhyaya on March 9, 1977. Admittedly, the main
premises i.e. the building was demised by Krishnamurthy to the said P.R.N.
Upadhyaya in the year 1972 and in course of time he had sublet different
portions of the premises to different persons. By a notice dated November 8,
1980 the head lessor Krishnamurthy served a notice of eviction on the appellant
and other sub-tenants alleging that there was unlawful subletting by the lessee
and that he had decided to terminate the tenancy of the tenant Upadhyaya with
the expiry of that month i.e. by the end of December 1980.
Thereupon,
the appellant on December 4, 1980 was constrained to attorn in favour of the
original lessor Krishnamurthy agreeing to pay him a rent of Rs.300 per month.
Evidently, the appellant had paid rent to the respondent upto March 31, 1980.
After becoming a direct tenant under the head lessor Krishnamurthy, the
appellant stopped paying rent to the respondent W.E.F. April 1, 1980. On March
13, 1981 the respondent asserting to be the lessor commenced proceedings for
eviction of the appellant from the demised premises under s. 10(2)(i) and (vi)
and 10(3)(b)(iii) of the Act i.e.
On
the ground that the appellant was in willful default in payment of rent, that
there was denial of title on his part and for his bona fide requirement. The
First Additional Rent Controller, Hyderabad by order dated November 3, 1982
disallowed the application on the ground that the respondent not being the
lessor had no locus stand to initiate the proceedings for eviction. On appeal,
the Chief Judge, City Small Causes Court, Hyderabad by judgment dated April 29,
1985 reversed the order of the learned Rent Controller and directed the
eviction of the appellant under s. 10(2)(i) and (vi) holding that the premises
in question was a building within s. 2(iii) of the Act and that in view of the
denial of his title as well as admitted non-payment of rent, the appellant was
estopped from denying the title. That decision of his has been upheld by a
learned Single Judge of the High Court by the judgment under appeal. The
judgment of the High Court mainly rests on the rule of estoppel.
149
The appeal must be allowed on the short ground that there being a threat of
eviction by a person claiming title paramount i.e. head lessor Krishnamurthy,
the appellant was not estopped under s. 116 of the Evidence Act from
challenging the title and his right to maintain the eviction proceedings of the
respondent P. Jagadish as the lessor. S. 116 of the Evidence Act provides that
no tenant of immovable property 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. Possession and permission
being established, estoppel would bind the tenant during the continuance of the
tenancy and until he surrenders his possession. The words "during the
continuance of the tenancy" have been interpreted to mean during the
continuance of the possession that was received under the tenancy in question,
and the Courts have repeatedly laid down that estoppel operates even after the
termination of the tenancy so that a tenant who had been let into possession,
however, defective it may be, so long as he has not openly surrendered
possession, cannot dispute the title of the landlord at the commencement of the
tenancy. The rule of estoppel is thus restricted not only in extent but also in
time i.e. restricted to the title of the landlord and during the continuance of
the tenancy; and by necessary implication, it follows that a tenant is not
estopped, when he is under threat of eviction by the title paramount, from
contending that the landlord had no title before the tenancy commenced or that
the title of the landlord has since come to an end.
The
rule of estoppel embodied under s. 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 Kumar v. Desraj Ranjit Singh ILR (1915) 37 All 557 (PC)
and Atyam Veerraju & Ors. v. Pechetti Venkanna & ors., [19661 1 SCR 83
1. 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 Prosad Lal Singha Deo v. Baraboni Coal Concern
Limited & orS., AIR (1937) PC 251. Similarly, the estoppel under s. 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 150 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 ejecment. If the tenant however gives up possession
voluntarily 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 s. 116 of the Evidence Act. See: Adyanath Chatak v.
Krishna Prasad Singh & Anr., 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 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 para mount, 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 that threat,
attorns to the claimant, he may set this up as an eviction by way of defence to
an action for rent, subject to his proving the evictor's title. There is no
eviction, however, if the tenant gives up possession voluntarily. " Quite
recently, this Court in Mangat Ram & Anr. v. Sardar Meharban Singh &
ors., [1987] 1 Scale 964, to which one of us was a party, observed:
"The
estoppel contemplated by s. 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.
See
also: Fida Hussain v. Fazal Hussain & Ors., AIR (1963) MP 232, K.S.M.
Guruswamy Nadar v. N.G. Ranganathan, AIR (1954) Mad.
151
402, S.A.A. Annamalai Chettiar v. Molaiyan & Ors., AIR (1970) Mad. 396 and
Chidambara Vinayagar Devasthanam v. Duraiswamy, ILR (1967) 1 Mad. 624. In the
premises, the High Court as well as the learned Chief Judge of the City Small
Causes Court were clearly in error in allowing the proceedings brought by the
respondent under s. 10(2)(i) and (vi) of the Act by relying on the rule of
estoppel embodied in s. 116 of the Evidence Act. The judgment of the High Court
cannot be sustained for the reason that there is no finding that the dispute as
to title was not bona fide in terms of s. 10(2)(i) and further inasmuch as the
appellant could not be treated to be in arrears of rent since he has been
paying rent to the head lessor Krishnamurthy after the adornment of the tenancy
to him. The terms of s. 10(2)(i) and (vi) of the Act are set out below:
"
10. Eviction of tenant-(2) A landlord who seeks to evict his tenant shall apply
to the Controller for a direction in that behalf. If the Controller, after
giving the tenant a reasonable opportunity of showing cause against the
application, is satisfied- (i) that the tenant has not paid or tendered the
rent due by him in respect of the building within fifteen days after the expiry
of the time fixed in the agreement of tenancy with his landlord or in the
absence of any such agreement, by the last day of the month next following that
for which the rent is payable, or (vi) that the tenant has denied the title of
the landlord or claimed a right of permanent tenancy and that such denial or
claim was not bona fide.
the
Controller shall make an order directing the tenant to put the landlord in
possession of the building and if the Controller is not so satisfied, he shall
make an order rejecting the application." The High Court failed to
appreciate that there could be no order of termination in terms of s. 10(2)(i)
unless it could be said that in the facts and circumstances of the case the
dispute as to title was not bona fide. It cannot be said having regard to the
fact that the appellant was under threat of eviction by the title paramount,
that the rule of estoppels under s. 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 s. 10(2)(i) and (vi) of the Act is not
sustainable in law.
In
the result, the appeal succeeds and is allowed. The proceedings for eviction of
the appellant from the demised premises under s. 10(2)(i) and (vi) and
10(3)(b)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction)
Control Act, 1960 are quashed. No costs.
P.S.S.
Appeal allowed.
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