Kundan
Mal Vs. Gurudutta [1989] INSC 28 (25 January 1989)
Sharma,
L.M. (J) Sharma, L.M. (J) Kania, M.H.
CITATION:
1989 SCR (1) 330 1989 SCC (1) 552 JT 1989 (1) 147 1989 SCALE (1)196
ACT:
Rajasthan
Premises (Control of Rent and Eviction) Act, 1950: Section 13(1)(f)--Tenant
denying title of landlord--When arises-Denial to be clear and in unequivocal
terms.
HEAD NOTE:
The
appellant was inducted into the structure in ques- tion by the owner in 1953.
In 1969, the owner died and some dispute arose between his legal
representatives and the respondent. The dispute was finally decided in favour
of the respondent. The appellant duly recognised him as landlord and started
paying rent.
In
1973, in response to a notice received from the Municipal Authorities asking
him to remove the disputed structure on the ground that it was erected on
Government land, the appellant was forced to file a suit in the Civil Court,
challenging the validity of the notice and praying for injunction against the
Municipal authorities from inter- fering with his possession.
The
respondent thereafter filed a suit against the appellant on the grounds of
default in payment of rent and denial of his title by him. It was alleged that
the appel- lant had challenged the respondent's title in the plaint filed in
the earlier suit. The case of default in payment of rent was rejected, but the
suit was decreed on the ground of denial of title.
On
appeal, the Additional District Judge confirmed the decree and held that the
statements in the plaint amounted to disclaimer and, in any event, the
appellant had failed to acknowledge the landlord's title therein and
consequently he was liable to eviction under cl.(f) of s. 13(1) of the Act.
The
appellant's second appeal was also rejected by the High Court at the admission
stage.
Allowing
the appeal,
HELD:
In providing disclaimer as a ground for eviction of a tenant in cl.(f) of s.
13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the
Legislature decided to give effect to the 331 provisions of cl.(g) of s. 111 of
the Transfer of Property Act, 1882. The principle of forfeiture on disclaimer
is rounded on the rule that a man cannot approbate and repro- bate at the same
time. Since the consequence of applying the rule is very serious, it must be
held that the denial has to be clear and in unequivocal terms. [334C-D] In the
instant case, the 1973 suit was not directed against any of the defendants
excepting the Municipality and the statements in the plaint were made by way of
giving the background in which the impugned notice by the Municipal officers
had been issued. No relief against the other de- fendants including the present
respondent was prayed for.
Even
interpreting the plaint in a manner as favourable to the landlord as may be possible
it has to be accepted that the document cannot be construed to clearly deny the
re- spondent's title in unambiguous terms. One thing that is conspicuous is
that the appellant did not claim any title in himself. He expressly described
the character of his posses- sion as that of a tenant. Examining the entire
plaint in this background the ground contemplated under s. 13(1)(f) of the Act
is not made out. [334B, E-F] Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur
and another, A.I.R. 1965 S.C. 1923, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1048 of 1980.
From
the Judgment and Order dated 11.3.80 of the Rajas- than High Court in S.A. No.
52 of 1980.
S. Ganesh
and P.H. Parekh for the Appellant.
S.S. Khanduja
for the Respondent.
The
Judgment of the Court was delivered by SHARMA, J. This appeal by special leave
is directed against the decision of the Rajasthan High Court confirming the
decree of eviction of the appellant from certain prem- ises under s. 13(1)(f)
of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter
referred to as the Act), on the ground that he had denied the title of the
respondent-landlord.
2. The
appellant has been in possession of the structure in ques- 332 tion since 1953,
when he was inducted therein by the owner one Nawab M. Ali Khan. In 1969 Nawab
M. Ali Khan died, and it appears that some dispute arose between his legal repre-
sentatives and the present respondent no. 1. It further appears that the
dispute was finally settled in favour of the respondent no. 1 and according to
the case of the appel- lant he duly recognised him as his landlord and started
paying rent. In 1973 the appellant received a notice from the Municipal
authorities asking him to remove the disputed structures on the ground that it
was erected on Government land. According to the appellant's case, the notice
was issued at the instance of the respondent no. 1, who was anxious to evict
the appellant. The appellant, in the situa- tion, was forced to file a suit in
the civil court challeng- ing the validity of the notice and praying for
injunction against the Municipal authorities from interfering with his
possession. The respondent no. 1 filed the present suit on the twin Founds of
default in payment of rent and denial of his title. The case of default in
payment of rent was re- jected but the suit was decreed on the ground of denial
of title. On appeal, the Additional District Judge confirmed the decree. The
appellant's second appeal was also rejected by the High Court at the admission
stage.
3. The
appellant's plaint in the earlier suit by which it is suggested that he
challenged the respondent's title was filed in the present case and marked as
Ext. 1. The first appellate court has while recording its finding against the
appellant observed that the statements in the plaint amount to disclaimer and,
in any event, it appears that the appellant failed to acknowledge the
land-lord's title therein and consequently he was liable to eviction under
clause (f) of s. 13(1) of the Act, which reads as follows:
"13.
Eviction of tenants.--(1) Not- withstanding anything contained in any law or
contract, no Court shall pass any decree, or make any order, in favour of a
landlord, whether in execution of a decree or otherwise, evicting the tenant
(xxx) so long as he is ready and willing to pay rent therefore to the full
extent allowable by this Act, unless it is satisfied .-
(a).............................................. ...
................................................
.
(f)that
the tenant has renounced his charac- ter as such or denied the title of the
landlord and the 333 latter has not waived his right or condoned the conduct of
the tenant; or" We do not agree. There is no statement in the plaint at
all challenging the landlord's right and there was no occasion for the
appellant to deal with this aspect in view of the scope of his suit. On the
other hand, the pleading shows that he described the nature of his possession
as that of a tenant and the interest of the present respondent no. 1, who was
defendant no. 2 in that suit, as that of a landlord.
4. Mr.
S.S. Khanduja, the learned counsel for the re- spondent, relied on the last
sentence of paragraph 1 of the plaint, as mentioned below, and contended that
since the defendant no. 2 was not one of the heirs of the deceased Nawab M. Ali
Khan, this sentence should be read as denial of his title:
"He
sold out some portion of his property in his life time and the remaining
property came to be owned by his heirs i.e. defendants no. 2 to 6."
Firstly it has to be noticed that although the respondent was wrongly described
as an heir, his title to the property was acknowledged. Further this sentence
cannot be read in isolation. The position is explained in paragraph 5 of the
above noted plaint in the following terms:
"5.
That the land where the stall type Kachhi shops of the plaintiffs have been
constructed, the Defendant No. 2 has built his house after taking the land on a
long term lease from Nawab Mukarram Ali Khan. In between these there is a Pakka
'Dola'. There is dispute about the ownership of the land between the Defendant
No. 2 and the Defendant No. 3 to 6 since the death of Nawab Mukarram Ali Khan
in the year 1969. Later on the matter has been compromised in between the four
heirs, the Defendant No. 2 developed a bad motive and he wants that anyhow the
plaintiffs should be evicted from the premises as early as possible and he. should
occupy the same." The argument is that the title of the respondent
(defendant No. 2 in the earlier case) was nowhere accepted in the plaint. After
mentioning the dispute between him and the legal representatives of the
deceased Nawab the appellant did not proceed to clarify the position. So far as
334 the statement in paragraph No. 1 of the plaint is concerned, the grievance
is that the title of the landlord was denied, if not completely then at least
in part by describing the defendants 3 to 6 as co-owners with him. We are not
in a position to agree with the contention of the learned counsel that for
these reasons the appellant has to be evicted. Even interpreting the plaint in
a manner as favourable to the landlord as may be possible, it has to be
accepted that the document cannot be construed to clearly deny the respond- ents'
title in unambiguous terms. One thing that is conspic- uous is that the
appellant did not claim any title in him- self. We expressly described the
character of his possession as that of a tenant. Is it in this situation
permissible to forfeit his lease on the ground of disclaimer of title?
In
providing disclaimer as a ground for eviction of a tenant in clause (f) of s.
13(1) of the Act, the Legislature decided to give effect to the provisions of
clause (g) of s. 111 of the Transfer of Property Act. The principle of
forfeiture on disclaimer is rounded on the rule that a man cannot appro- bate
and reprobate at the same time. Since the consequence of applying the rule is
very serious, it must be held that the denial has to be clear and in
unequivocal terms. The decision of this Court in Mohammad Amir Ahmad Khan v. Munic-
ipal Board of Sitapur and another, A.I.R. 1965 S.C. 1923, relied upon by the
learned counsel for the appellant high- lights this aspect. The facts in that
case would show that the tenant there had made statements against his landlord
which were far more serious than those in the case before us and still was not penalised.
It may be appreciated that in the present case the 1973 suit was not directed
against any of the defendants excepting the Municipality and the state- ments
in the plaint referred to above were made by way of giving the background in
which the impugned notice by the Municipal officers had been issued. No relief
against the other defendants including the present respondent was prayed for.
Examining the entire plaint in this background we are of the opinion that the
ground contemplated under s. 13(1)(f) of the Act is not made out. We,
therefore, set aside the judgments of the courts below and dismiss the suit.
The appeal is accordingly allowed with costs through- out.
N.P.V.
Appeal allowed.
Back