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Janta Travels Pvt. Ltd. v/s Raj Kumar Seth

    Civil First Appeal No. 216 of 1995

    Decided On, 24 May 1996

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONOURABLE MR. JUSTICE ARUN MADAN

    For the Appellant: K.M. Mathur, Advocate. For the Respondent: V.B. Sharma, M.M. Ranjan, Advocate, R.K. Seth, In-person.



Judgment Text

1. This appeal is directed against the judgment and decree dated 2.8.1995 passed by Addl. District Judge No. 6, Jaipur City, Jaipur in Civil Suit No. 253/1995 whereby the suit of the plaintiff-respondent was decreed.

2. The facts giving rise to the filing of this appeal briefly stated are that a suit for eviction of the defendant-appellant was filed by the plaintiff- respondent on two grounds :-

(a) default in payment of rent; and

(b) denial of title.

A suit was filed on 21.11.1983 in the Court of the District Judge, Jaipur City, Jaipur which was later on transferred to the Court of Additional District Judge No. 6, Jaipur City, Jaipur. In the plaint it was specifically averred by the plaintiff that he had let out a portion of the premises in dispute which is situated opposite All India Radio, M.I. Road, Jaipur on 1.2.1981 on a monthly rent of Rs. 1500/- vide a registered rent deed which was duly executed between the parties on 25.2.1981. The agreed rent was excluding house-tax, water and electricity charges. Since the defendant had committed default in payment of rent for the period 31.2.82 to March, 1983 and this default committed in tendering the rent to the plaintiff was for a period exceeding six months, the plaintiff served a notice on the defendant through his counsel on 19.3.1983 whereby the tenancy of the defendant was terminated and he was directed to hand over the vacant and peaceful possession of the suit premises subject to clearing the rent due. It was further averred in the plaint that some negotiation with regard to the payment of rent took place between the parties at Delhi, as a result of which on 21.4.83 the defendant paid a sum of Rs. 9,000/- towards rent by cheque to the plaintiff for the period ending January, 1983. Subsequently when the plaintiff read the covering letter attached to the cheque to be realised that the payment of rent was made conditional, since in the letter the plaintiff was asked to submit his title deeds and also a bank guarantee for an amount of Rs. 30,000/- paid to the plaintiff as security by th

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e defendant as per the terms incorporated in the rent deed. Thereafter the plaintiff again sent another notice claiming arrears of rent and eviction of the defendant from the suit premises but the defendant-appellant neither paid the arrears of rent nor vacated the suit premises. During the hearing of the suit the defendant thought of a novel idea by disputing the title of the landlord and it is under these circumstances that the plaintiff-respondent was compelled to file the eviction suit which was decreed against the defendant-appellant whereby the trial Court directed the recovery of the rent dues of Rs. 14,278.75 and also directed the defendant to pay damages to the tune of Rs. 166.75 per month to the plaintiff till the vacant possession of the suit premises was handed over to the plaintiff and also directed eviction of the defendant from the suit premises on both the grounds, i.e., default in payment of rent and denial of title.

3. In the written statement filed by the defendant-appellant before the trial Court, it was contended inter-alia that a lease agreement was executed between the parties and registered on 25.2.1981 and the premises was handed over to the defendant by the father of the plaintiff Late Dr. V. Ratan. It was further contended in the written statement that terms and conditions of the said lease agreement were also settled by Late Dr. V. Ratan who inducted the defendant into the possession of the suit premises, but since Dr. V. Ratan was of old age and was not in good health he had requested the defendant to execute the lease agreement in favour of his son Raj Kumar Seth, respondent herein. It was further contended by the defendant that a sum of Rs. 30,000/- was also paid towards the security to the plaintiff as per the instructions of Late Dr. V. Ratan against a valid receipt. It was further contended by the defendant that Dr. V. Ratan expired in February, 1983 and thereafter his second son namely, Ram Ratan sent communication to the defendant enclosing a copy of the Will of Late Dr. V. Ratan under which the suit premises had fallen to his share and henceforth the rent should be paid to him. When his request was not adhered to he again sent another communication to the defendant that if the rent was not paid, he would file a civil suit against the defendant at his cost and consequence, hence a bonafide dispute was created as to whom the rent should be paid which compelled the defendant to send a communication to the plaintiff to clarify the position in this regard as to which legal heir the rent should be paid. On the pleadings of the parties learned trial Court framed the following issues :-

1. Whether the defendant has committed default in payment of rent as alleged ?

2. Whether the demand made by the defendant regarding proof of ownership in respect of the suit property amounts to denial of title of the plaintiff ?

3. Relief ?

4. In support of his case the plaintiff himself appeared in the witness-box. On behalf of the defendant Balvir Singh D.W. 1 and Harish Sharma D.W.2 were examined. Apart from leading oral evidence the parties were also given opportunity to file documentary evidence before the trial Court.

5. Learned trial Court after recording the evidence and hearing the parties to the suit decreed the same in favour of the plaintiff and passed a decree of eviction against the defendant on the grounds of denial of title under Section 13(1)(f) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and also passed a decree in favour of the plaintiff for realisation of the rent due from the defendant in respect of the suit premises at the rate of Rs. 1500/- per month till eviction. Aggrieved by the aforesaid decree this appeal has been preferred by the defendant-appellant to this Court on the grounds inter-alia that the impugned judgment and decree passed by the trial Court is contrary to the facts on the record of the case and also against the law. The appellant has also assailed the impugned judgment and decree on the ground that the trial Court has misread and misconstrued the documentary evidence placed on the record, particularly Ex.A.2 and recorded a finding in favour of the plaintiff. The Court below has further failed to consider that it was never pleaded by the defendant in its written statement regarding the denial of the title of plaintiff and on the contrary it was pleaded on its behalf that while the title of the suit premises has not been denied but on account of confusion created by the plaintiff and Late Dr. V. Ratan and Raman Ratan the defendant had merely sought clarification as regard the person to whom the rent should be paid and that the defendant was always ready and willing to pay the rent. It has further been contended that the documentary evidence Ex.A-2 to A-10 raise a bonafide doubt as to whom the rent should be paid and these letters cannot be construed as amounting to denial of title of the landlord.

6. During the course of hearing it was contended by the learned counsel for the appellant that the suit premises had been let out to the defendant by the plaintiff vide a rent deed duly executed between the parties w.e.f. 25.2.1981 on a monthly rent of Rs. 1500/-. It was further averred that default was made by the defendant in payment of rent for the period of 31st February, 1982 to March, 1983. It has been further contended that the plaintiff had met the defendant in Delhi on 21.4.83 and a cheque of Rs. 9,000/- was handed over to the plaintiff along with covering letter towards the rent but the learned counsel for the appellant has not clarified as to for what period the cheque was tendered and what was the justification in sending the covering letter. In this letter defendant had sought clarification from the plaintiff regarding his ownership and title in respect of the suit premises. There was a demand of bank guarantee to the tune of Rs. 30,000/- from the plaintiff which was made a condition precedent by the defendant for payment of rent of Rs. 9,000/- which was paid on account for the disputed period. On the question of default learned trial Court has recorded a positive finding that notwithstanding the fact that the defendant had committed default in payment of rent for a period of more than six months, since during the course of hearing both the parties have admitted that the agreed rent had been paid during the pendency of the suit, hence no decree for eviction can be passed on this ground. In this regard it was contended by the learned counsel for the appellant that the aforesaid finding recorded by the trial Court on the question of default deserves to be confirmed by this Court and which is accordingly confirmed.

7. With regard to the second contention advanced by the learned counsel for the appellant on the issue regarding denial of title, it was contended by the learned counsel for appellant that since appellant had only sought clarification from the respondent as to whom the rent should be paid it does not amount to denial of title. On the basis of letters A-2 to A-10, learned trial Court recorded a finding to the effect that in a case where there is dispute regarding the denial of title it is not open to the Court to go into the question of ownership and rather from the facts and circumstances of the case as well as the pleadings of the parties on the record it is clearly apparent that the defendant has not only denied the ownership of the plaintiff prior to the institution of the suit but also has made specific denial in the written statement filed in reply to the plaint, hence merely for the reason that the defendant had paid rent, cannot be considered as a ground with regard to the denial of title particularly when both the grounds are independent and not co-related to each other. Hence learned trial Court recorded a specific finding on the question of denial of title against the defendant and in favour of the plaintiff. In this regard I am of the considered opinion that the aforesaid finding of the trial Court on the question of denial of title deserves to be affirmed, since in my opinion it is not open to the tenant to dispute the title of the landlord in a case where once a lease-deed is duly executed and proved on the record as in this case, it was not open to the defendant-tenant to raise the dispute or challenge the title or ownership of the landlord. I am further of the opinion that it is only during the subsistence of tenancy and after the expiry of original owner of the suit premises, Dr. V. Ratan, that a dispute was raised by the appellant regarding the question of ownership of the respondent of suit premises deliberately with a view to safeguard himself against eviction in the event of a suit being filed.

8. In order to appreciate the contention advanced by the learned counsel for the parties in their true perspective the record from the trial Court was summoned and I have perused all the relevant documents including correspondence exchanged between the parties. Perusal of the documents on the record as well as the correspondence exchanged between the parties vide Ex.A-1 to A-13, reveals that the defendant deliberately with ulterior motive had raised the dispute on the question of title as it was not open to the appellant to raise the said dispute, since a lease-deed Ex.2 dated 25.2.1981 was duly executed between the parties and it was a registered document, hence no dispute should have been raised by the defendant on the question of ownership and title of the plaintiff. The aforesaid lease-deed was duly proved on the record by the plaintiff and the same remains un-controverted by the defendant. Perusal of documents Ex.A-1 dated 13.1.1982 and Ex.A-5 letter dated 25.10.82 will show that they do not help in advancing the cause of the appellant that the respondent is not the owner of the suit premises. In this regard I am of the opinion that since a dispute had been raised by the defendant soon after the death of Dr. V. Ratan, father of the plaintiff, it was incumbent upon the defendant to have summoned the relevant records from the Registrar of Properties alongwith official concerned to prove that the property in question was not registered in the name of the plaintiff and this fact was more relevant to be proved by the defendant in order to dispel the bonafide doubt or dispute in respect of title. Since the appellant had waived this right by not examining either the records from the office of the Registrar of properties not having summoned the concerned official from the office of the Registrar to prove this fact, hence no inference should be drawn in favour of the defendant on the question of title or ownership in respect of premises in question. I am further of the opinion that since Dr. V. Ratan was not alive, the onus was heavily on the defendant to discharge the burden on the question of ownership and title of the plaintiff which admittedly has not been done in this case.

9. During the course of hearing it was brought to the notice of this Court by the learned counsel for the parties that after the demise of Dr. V. Ratan rent is being regularly deposited in the bank account of Mr. R.K. Seth plaintiff and hence no doubt or dispute survives between the parties on the question of title or ownership of the respondent regarding the suit premises.

10. Learned counsel for the respondent, while controverting the contentions advanced by the learned counsel for the appellant, has contended at the bar that the lease-deed dated 25.2.1981 is a registered document which cannot be doubted and as per clause 12 of the lease-deed Ex.2, the possession of the suit premises was taken by the appellant from the respondent R.K. Seth after due clarification of title of the plaintiff regarding suit property. Dr. V. Ratan was alive at that time. If there was any bonafide doubt on the question of title, nothing prevented the appellant to verify this position from either Dr. V. Ratan, father of the respondent, or from the respondent himself which admittedly has not been done in this case. It has been further contended by the learned counsel for the respondent that no single document has been shown to this Court that the lease deed was executed by any one else except the parties to the dispute.

11. It has been further contended by the learned counsel for the respondent that the conduct of the defendant is highly mala fide since he has asked for the proof of ownership and title from the respondent of which he was fully aware even during the life-time of Dr. V. Ratan which amounts to clear denial of title and consequently a ground for eviction of the defendant from the suit premises is made out under Section 13(1)(f) of the Rajasthan Premises (Control Act of Rent and Eviction) Act, 1950. In this regard I am of the opinion that Section 116 of the Indian Evidence Act operates as estoppel against the tenant to challenge the title of the owner of the suit premises after due execution and registration of the lease-deed. I am fortified in my observations from the judgment of this Court in the matter of Karachi Wine Store v. Mohammed Rafiq, 1988(2) Raj.LR 633. In this case on the question of denial of title of the landlord by the tenant in a suit for eviction, it was held by this Court that since the defendants had attorned the plaintiffs by paying monthly rent of the premises during the pendency of the suit, the defendant had attorned the plaintiffs as their landlords and were estopped from challenging the title of the plaintiffs. In the matter of Raja Mohammad Amir Khan v. Municipal Board of Sitapur, AIR 1965 Supreme Court 1923 it was held by the Apex Court that the disclaimer or the repudiation of the landlord's title must be clear and unequivocal and that unless there is disclaimer or repudiation in clear and unequivocal terms, whether the same be in pleading or in other documents, no forfeiture is incurred.

12. In the matter of Kundan Mal v. Gurditta, 1989(1) SCC 552, in a case under Section 13(1)(f) of the Rajasthan Premises (Control of Rent and Eviction Act), 1950 it was held by the Apex Court that the principle of forfeiture or disclaimer is founded on the rule that a man cannot approbate and reprobate at the same time. Since the consequence of applying the rule is very serious, it was held that the denial has to be clear and in unequivocal terms. Applying the ratio of the aforesaid judgments of the Apex Court to this case, I am of the opinion that in view of clear and unequivocal denial of title of the respondent by the appellant, a ground for eviction of the appellant under Section 13(1)(f) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, has been clearly made out and in view of Section 116 of the Indian Evidence Act which estops the tenant to challenge the title of the owner after due execution of the lease-deed, it was not open to the appellant to raise any dispute on the question of title of or ownership of the plaintiff-respondent and a decree for eviction has rightly been passed by the trial Court in favour of the plaintiff and against the defendant. I am further of the opinion that the conduct of the defendant has been such that it has resulted in forfeiture of tenancy rights in favour of the plaintiff as it was not open to him to raise any dispute muchless a bonafide dispute after due execution and registration of the lease-deed between the parties, as referred to above.

13. In the matter of Kashmiri Lal v. Gurnam Singh, (sic) (P&H)-45 it was held by the High Court of Punjab and Haryana at Chandigarh that once letting has been proved, Section 116 of the Indian Evidence Act is at once attracted which disentitles the tenant to deny the title of the landlord on the rule of estoppel.

14. In the matter of Kis-Nambudiri V.K. v. Kallu Vettil Present Karanavan Madhavan Nair, AIR 1971 Kerala 333 it was held by the Kerala High Court that where a lease-deed has been registered though the law does not require it to be in writing or to be registered, no evidence can be allowed to prove a distinct subsequent oral agreement to rescind or vary its terms.

15. In the matter of Chandrika P. v. Bombay Baroda and Central India Rly. Co., AIR 1935 PC 59 it was held that the tenant cannot dispute his lessor's title so long as he remains in possession under an agreement which he had made with them.

16. In the matter of Gordhan v. Ali Bux, 1981 WLN 156 : AIR 1981 Rajasthan 206 it was held by this Court that in a case where the tenancy was duly proved and there being no dispute regarding relationship of the landlord and tenant, consideration of ownership or title is alien to the spirit of the agreement.

17. In the matter of N.S. Parthasarthy v. Padmini Devi, 1982 DLT 48 : AIR 1982 NOC 277, it was held by Delhi High Court that a tenant cannot allege oral contractual tenancy in variance with written lease unless it falls within any exception of Section 92 of the Indian Evidence Act.

18. In the matter of Jitendra Kumar v. Harmohinder Singh, 1993(2) RCR 47 (P&H) it was held by the High Court that where a lease was created for a period of five years on the basis of a duly registered document, oral evidence to prove its rescission was not admissible.

19. Likewise in the matter of Balvant Singh v. Smt. Mayadevi, 1979 Cur LJ (Civ.) 7 (Raj), a Division Bench of this Court held that subsequent oral agreement modifying the terms of original registered mortgage-deed is inadmissible.

20. It is, therefore, clear from the above discussions that the arguments advanced by the learned counsel for the appellant cannot be accepted in view of legal position as referred to above, since once the tenant has admitted the tenancy on the basis of a valid and registered lease-deed, it was not open to him to advance pleas contrary to the spirit of the agreement or to raise such pleas which would vitiate not only the agreement itself but also the relationship between the parties on mere plea of denial of title itself.

21. As a result of the above discussions, I find no force in the appeal and the same is dismissed. The judgment and decree dated 2.8.1995 passed by learned Additional District Judge No. 6, Jaipur City, Jaipur in Civil Suit No. 253/1995 is confirmed. Appellant is directed to hand over the vacant and peaceful possession of the suit premises to the respondent-plaintiff within four months from today subject to appellant furnishing an undertaking to this Court that he shall hand over the vacant and peaceful possession of the suit premises to the plaintiff-respondent and shall also pay the arrears of rent, if any, including the future rent month by month till he vacates the suit premises. The undertaking should be filed within a period of two weeks from today. There is no order as to costs. The summoned record be sent back to the trial Court immediately.
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