Vs. P. Padmavathy  INSC 299 (24 August 1999)
D E R
These appeals are directed against the order of the High Court of Madras dated
24.11.1997 in Civil Revision Petition Nos. 3476 of 1985 and 830 of 1997 dismissing
these revisions. These appeals arise under the Tamil Nadu Buildings (Lease and
Rent Control) Act, 1960 (Tamil Nadu Act No. 18 of 1960), hereinafter referred
to as the Act. The short facts are that the appellant is a tenant of the
disputed premises, who was running an automobile workshop.
respondent filed the eviction petition against him, on the grounds that he is
defaulter, not paid the rents from October 1982 to May 1983, the said premises
is required for demolition and reconstruction and that he has sub-let a portion
of the disputed premises.
appellants stand is that earlier he was under an impression that the respondent
is the owner of the premises but later he came to know that Arulmigu Athikesava
Perumal Peyalwar Devasthanam is the owner of the premises. So he wrote a letter
to the said Devasthanam to recognise the appellant as a tenant. Since then and
for this reason the appellant did not pay any rent to the respondent bonafide
believing the Devasthanam to be the owner. The Rent Controller rejected this defence
and held that the appellant committed default in the payment of rent, the
premises in question is legitimately required by the respondent for demolition
and reconstruction. However, the Rent Controller rejected the case of sub-letting,
which for the present appeal is not in issue as it has become final. The
appellant then filed an appeal. The Appellate Authority confirmed the order
passed by the Rent Controller and held, there exists relation of landlord and
tenant between the respondent and the appellant and the denial of title by the
appellant is not bonafide and the default of payment of rent is wilful.
Finally, the appellant filed civil revision before the High Court. The main
contention raised before the High Court is also the same as raised before us
that the courts below have failed to appreciate on the facts and circumstances
of this case that denial of title by the appellant is bona fide and hence
non-payment of rent cannot be held to be wilful. The appellant also relied on
facts which came into existence, during the pendency of the said revision that
in fact the said Devasthanam filed a suit on 30th October, 1987 against the appellant and others, claiming paramount title
over the land including disputed one and also for eviction before the City Civil Court, Madras. Reliance is sought to be placed on the reply affidavit of
the appellant in the said suit, where it is said he has admitted to be the
tenant of the Devasthanam.
other hand aforesaid revision of the appellant was dismissed for default by the
High Court on 27th
the appellant filed an application for restoration. Meanwhile, the respondent
filed execution petition before the Rent Controller. The appellant in this
execution also referred to the suit of the Devasthanam, and submitted rent was
rightly paid to the temple and not to this respondent thus this execution has
denied this claim on merit and further objected of this being considered in the
execution proceedings. It was urged the executing court cannot go beyond the
the executing court on 24th
rejected the appellants contention. The appellant thereafter preferred Civil
Revision Petition No. 830 of 1997, as aforesaid, before the High Court under
Article 227 of the Constitution of India.
application of the appellant for restoration of the revision was allowed.
Finally, the High Court dismissed both the said revisions. In the restored
revision High Court held, even if the entire property belong to the temple, but
since at the initial stage through the arrangement with the respondent, the
appellant was inducted into the tenancy, the appellant cannot deny his right
and title. Consequently, held that non-payment of rent to the respondent was wilful.
It also confirmed that the building is required by the respondent for
demolition and reconstruction. In the revision, against the order passed by the
executing court, the High Court held that merely because the paramount title
holder filed a suit, the arrangement between the appellant and the respondent
cannot come to an end, hence claim of the appellant was rejected.
appellant aggrieved by these dismissal orders of the High Court in the two
revisions, which upheld the concurrent findings recorded by both the authority
below has filed the present appeals.
main contention by the learned senior counsel for the appellant, Mr. M.N. Krishnamani,
is that the courts below have neither applied its mind to the facts of this
case nor recorded any finding that the denial of title by the appellant was not
bonafide. The submission is that he denied the title of the respondent in favour
of temple on the basis of information received from the Temple which is also
born out by the subsequent event, leading to filing of the suit by the Devasthanam,
thus his paying rent to the temple constitute to be bonafide one. Further he
submits the said affidavit of the respondent in the Devesthanam suit where he
admits to be lessee, not owner, is contrary to what he has stated in the
present petition under Section 14 (1) (b) of the Act where he assert himself to
be the owner. For all these reasons conduct of the appellant should be
construed to be bonafide.
said averment made by the respondent in para 3 of the petition under Section 14
(1)(b) read with Section 10 (2)(i) and 10 (2) (a) of the Act, is quoted
hereunder: The petitioner states that she is the absolute owner of the premises
house and ground bearing municipal door No. 108, Pilliar Koil Street, Alwarpet,
Madras - 600018. The respondent herein is a tenant under her in respect of the
in para 2 of the affidavit filed by the respondent for impleadment in the Devasthanam
suit he states:
respectfully submit that I am the lessee in the land of the first respondent
herein. I have put up superstructure and a portion was let out to the second
on this it is submitted he admits to be the lessee of Devasthanam then he
cannot be the owner or the landlord of the appellant. The two statements are
contradictory. On the other hand, learned counsel for the respondent submits,
there is concurrent finding by all the courts that the appellant default in
payment of rent is wilful and building is required for demolition and reconstruction,
hence this Court should not interfere. It is also submitted there is no
contradiction in the two statements and even if there is, it would be of no
avail to the appellant. The denial of title cannot be held to be bonafide as
the appellant was aware he was inducted into tenancy by the predecessor of the
respondent, there was nothing to show since thereafter respondent lost his
title thus even filling of the subsequent suit by the Devasthanam would not
change the position as relationship of landlord and tenant between the
respondent and the appellant continues, under the Act. So, on these facts the
denial of title of the respondent by the appellant followed by refusal to pay
rent to the respondent constitutes wilful default.
M.N. Krishnamani, learned senior counsel for the Meharban Singh & Ors.,
1987 (4) SCC 319, wherein it is observed as hereunder:
premises, the High Court as well as the learned Additional District Judge were
clearly in error in decreeing the suit brought by respondent 1 under Section 20
(2)(a) of the Act by relying on the rule of estoppel embodied in Section 116 of
the Evidence Act, 1872. 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.
1987 (4) SCC 424:
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 Section 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.
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 restrict 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.
heard learned counsel for the parties and after perusing the orders passed by
the Rent Controller and Appellate Authority we find they concurrently held that
the denial of title by the appellant was not bona fide and the default was wilful.
They also held building is required for demolition and reconstruction.
Challenging these findings the learned counsel for the appellant argued with
vehemence that the authorities below should not have addressed itself into the
question of title, as it had no jurisdiction to decide the question of title,
hence approach of the appellate authority was against the jurisdiction vested
in it under the law. Learned counsel referred to the case in, (4) SCC 286, to
contend that the question of title cannot be gone into in these proceedings.
There is no dispute of this proposition neither it is disputed by the learned
counsel for the respondent nor this question of title has been decided in these
proceedings. It is only when a tenant denies title of the landlord, the court
has to scrutinise the evidence and come to the conclusion prima facie, whether
the denial of title is bona fide or not. It is in the context of course court
has to go into the evidence to test the veracity of this denial of title. Thus,
any finding in this regard could not be a finding on the question of title.
is neither any claim of title set up by the respondent nor there is any such
issue between the parties in these proceedings and hence recording of any
finding in this regard is only to be understood for a limited purpose of
testing the bona fide of tenant to deny the title of the landlord.
has to be considered in a case of denial of title by a tenant is, whether their
still exists any relationship of landlord and tenant inter se, as in the
present case between the respondent No.1 and the appellant. In other words by
such denial of title does liability to pay this rent to such landlord ceases?
Does mere denial of title is sufficient not to tender rent to such landlord or
at what stage such liablity ceases. These are all considerations in the context
of testing the defence of a tenant in not tendering the rent to such landlord.
So the question is to whom rent is payable? In this regard definition of
landlord under Section 2(6) of the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960 is relevant, which is quoted hereunder:
landlord includes the person who is receiving or is entitled to receive the
rent of a building, whether on his own account or on behalf of another or on behalf
of himself and others or as an agent, trustee, executor, administrator,
receiver or guardian or who would so receive the rent to be entitled to receive
the rent, if the building were let to a tenant :
: A tenant who sub-let shall be deemed to be a landlord within the meaning of
this Act in relation to the sub-tenant.
definition of landlord is very wide to include any person who is receiving or
is entitled to receive the rent.
explanation includes even a tenant to be landlord under this Act. In the
present case it is not in dispute that the appellant was inducted into tenancy
by the predecessor of the respondent. After such induction he had been paying
rent first to the predecessor of the respondent No.1 from 1962 and then to the
respondent No.1 since 1980. The appellant in his cross examination has admitted
this by stating that he came as a tenant under one Shivlingam who is the elder
brother of Respondent No.1 and from 1980 onwards he had been paying rent to
respondent No.1. It is in this background we have to test the submission for
the appellant with respect to the default and denial of title. It is clear as
is also finding recorded that the appellant himself approached the Devasthanam
subsequently to execute the tenancy of the disputed premises in question to
him. In order to appreciate the conduct of the appellant in denial of title of
the Respondent No.1 we herewith record the finding of the trial court in this
petitioner strongly and curiously would contend that since he came to know all
of a sudden that Arulmigu Audikesava Perumal Peyalwar Devasthanam is the true
owner of the petition premises, he stopped the payment of rent to the
petitioner. In fact, the said Devasthanam never demanded the rent from the
respondent at any point of time, at their own accord. Further, the said Devasthanam
never intimated to the respondent that they are the owners of the petition
premises. The above said Devasthanam had not informed the petitioner that the
said Devasthanam is the true owner of the petition premises. For the first in
the history, the 1st respondent writes a letter Ex.R.1 dt. 28.3.83 stating that
he may be recognised as a tenant under the said Devasthanam in respect of the
petition premises, as he considered that the said Devasthanam is the true owner
of the petition premises. Thus the respondent himself gives right and title to
the said Devasthanam.
said Arulmighu Audikesavaperumal Peyalwar Devasthanam sent a reply to the 1st
respondent on 4.5.83, which is marked as Ex. R.3 in this petition. Even in
Ex.R.3, the said Devathanam had not examined any right and title over the
petition premises and the said devasthanam had not even admitted their
ownership over the petition premises. Therefore, I hold that the contention of
the respondent that the petitioner has no right or title over the petition premises,
is not true even for a moment.
aforesaid finding speaks for itself the conduct of the tenant in denial of
Respondent No.1 title. In spite of no claim of the rent made from the appellant
he on his own volition requested the Devasthanam to accept him as his tenant.
Further, Devasthanam had not even informed the appellant that they are the
owner. In this background can denial of title by tenant could be held to be
bona fide? The courts below rightly held it to be not bonafide.
reference to the subsequent event the other submission for the appellant is
with reference to the Devasthanam suit, viz., the affidavit by the respondent
in which it is urged he admits to be lessee of Devasthanam and thus his
averment in the present proceeding being the owner of the premises is wrong.
This also would be of no avail.
we are not called up to examine the said suit. The respondent No.1 was not even
impleaded hence was not a party there. This apart relationship between the
appellant and the respondent is of tenant and landlord under the Act while
relationship between the respondent and Devasthanam may be of lessee and lessor
in a different set of fact. This would make no difference. The definition of
landlord is under Section 2 (6) and under its explanation even tenant is
treated to be landlord. The aforesaid two decisions, viz., Mangat Ram and
others (supra) and D. Satyanarayan (supra) neither render any help to the
appellant nor could it be distinguished as not to apply to the facts of the
present case. On the contrary the two decisions squarely applies to the present
case. Section 116 of the Indian Evidence Act deals with the principle of estoppel
against a tenant where he denies the title of his landlord. Section 116 reads
of tenant and of licensee of person in possession - No tenant of immovable [roperty,
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; and no person who
came upon any immovable property by the licence of the person in possession
thereof, shall be permitted to deny that such person had title to such
possession at the time when such licence was given.
section puts an embargo on a tenant of an immovable property, during the
continuance of his tenancy to deny the title of his landlord at the beginning
of his tenancy. The significant words under it are at the beginning of the
tenancy. This is indicative of the sphere of the operation of this section. So
a tenant once inducted as a tenant by a landlord, later he cannot deny his
landlord title. Thus, this principle of estoppel debars a tenant from denying
the title of his landlord from the beginning of his tenancy. Howsoever
defective title of such landlord could be, such tenant cannot deny his title.
But subsequent to his induction as tenant if the landlord looses his title
under any law or agreement and there is threat to such tenant of his eviction
by subsequently acquired paramount title holder then any denial of title by
such tenant to the landlord who inducted him into the tenany will not be
covered by this principle of estoppel under this Section.
Ram and Ors. (supra) this Court held:
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.
in D.Satyanarayan (supra) also this Court holds in para 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 landlords titl e, however defective it may
be . Similarly, the estoppel under Section 116 of the Evidence Act is
restricted to the denial of the title at the commencement of the tenancy.
reverting to the facts of the present case, we find, admittedly the appellant
were inducted into tenancy by the predecessor of Respondent No.1 in 1962 and he
continued to pay rent to Respondent No. 1 since 1980. There is no case or any
evidence that since thereafter Respondent No. 1 lost his title to the disputed
premises. On the contrary denial of title in the present case is based on some
information that Devasthanam is the owner of the property since inception. No
case, Devastanam became owner of this property after 1962. In other words, the
denial of title by the appellant against his landlord is from the very
inception. This is forbidden under Section 116 of the Evidence Act. So both on
law and facts we do not find the submissions for the appellant is sustainable.
All the courts below rightly concluded that denial of title by the appellant
was not bona fide and hence non payment of rent to him amounts to wilful
submission is there is no finding by the courts below that denial of title by
the appellant was not bona fide. The submission has no merit. We find the trial
court very clearly recorded;
it was found that the allegation of the respondent is disputing the title of
the petitioner is mala fide and motivated. I hold that the default committed by
the respondent in the payment of rent is wilful.
none of the contentions raised by learned counsel for the appellant has any
merit. All the courts below also concurrently held that the disputed premises
is required for demolition and reconstruction. No illegality worth
consideration has been pointed out to set aside such findings. In view of the
aforesaid findings, we do not find any merit in the present appeal and is,
accordingly, dismissed. Costs on the parties. At this time a request was made
by learned counsel for the appellant to grant some time to the appellant to
vacate the premises, since they are in occupation of this premises since 1962.
We heard learned counsel for the parties. In the background of this case, we
grant six months time to the appellant to vacate the premises in question from
this date, on condition that he submits a usual undertaking to the effect that
he will hand over peaceful possession of the disputed premises to the
respondent immediately at the expiry of this six months, without creating any
third party right. He shall file this undertaking within four weeks from today
before the trial court.