SBCSA NO.77/2008–DHARMI CHAND V/S PARASMAL AND ANOTHER : JUDGMENT DTD. .19.9.2008 1/9 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.77/2008 Dharmichand versus Parasmal and another. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.J.K.Bhaiya, for the appellant. Mr.R.R.Nagori, for the respondents. REPORTABLE DATE OF JUDGMENT : 19th September, 2008. JUDGMENT 1. Heard the learned counsel for the parties. 2. The defendant – tenant has filed this second appeal against the concurrent judgments and decree of eviction passed by the two Courts below. The appellate Court while rejecting the appeal No.1/1996 of the defendant – tenant on 30.10.2007 upheld the eviction decree passed by the learned trial Court on 19.12.1995 for suit premises, namely, a shop situated in Sadar Bazar, Nimbaj, Tehsil Jaitaran, Dist. Pali. SBCSA NO.77/2008–DHARMI CHAND V/S PARASMAL AND ANOTHER : JUDGMENT DTD. .19.9.2008 2/9 3. The main defence set up by the defendant in the eviction suit field by the plaintiff Parasmal adoptive son of Sh. Bansi Lal was that after the death of said Banshi Lal in the year 1977, the defendant had purchased the suit property from the wife of said Banshi Lal, namely, Smt. Jatni Devi by a registered sale-deed dtd.20.9.1980 and therefore, he was not a tenant of the said premises and adoptive son plaintiff Parasmal could not file the suit through his next friend Bhanwar Lal, his natural father. 4. The two Courts below held against the defendant that the adoption of the plaintiff Parasmal was proved and since on 19.7.1980, the defendant himself had executed the rent note (Ex.1) in favour of Parasmal adoptive son of Banshi Lal, he could not deny the title of the plaintiff in view of Section 116 of the Evidence Act and he was estopped from denying the title. The two Courts below further held that the issue relating to ownership was not relevant in the eviction matter and since the defendant – tenant has executed rent-note Ex.1 in favour of the plaintiff Parasmal on 19.7.1980, on account of default in payment of rent and denial of title, the courts below decreed the suit. 5. Mr. J.K. Bhaiya, the learned counsel for the appellant – defendant emphatically urged that after the death of Banshi Lal in the year 1977, Smt. Jatni Devi was the sole owner of the suit premises and therefore, sale by her in favour of the defendant by registered sale-deed on 20.9.1980 transferred the absolute title over the suit SBCSA NO.77/2008–DHARMI CHAND V/S PARASMAL AND ANOTHER : JUDGMENT DTD. .19.9.2008 3/9 property to the defendant and the plaintiff was not entitled to maintain the suit for eviction. He also submitted that he had produced a copy of Will of said Banshi Lal along with an application under Order 41 Rule 27 C.P.C. before the learned appellate Court in which averment relating to sale of shop in question to the defendant was also made. However, the learned appellate Court rejected the said application under Order 41 Rule 27 C.P.C. Relying on the decision in the case of Ugre Gowda V/s Nagegowda (dead) by LRS. and other reported in (2004) 12 SCC 48 in which it was held that adoption of a son does not deprive the adoptive mother of the power to dispose of her separate property by transfer or by Will. The learned counsel submitted that even if the adoption of plaintiff Parasmal was accepted as proved, the sale of suit shop by Smt. Jatni Devi in favour of the defendant could not be ignored and therefore, courts below have erred in passing decree for eviction. 6. On the side opposite, Mr.R.R. Nagori, learned counsel appearing for the respondent - plaintiff emphatically submitted that though the sale-deed in question was not proved before the Court below, however, in view of rent-note (Ex.1), having been admittedly executed by the defendant on 19.7.1980 prior to alleged sale-deed dated 20.9.1980 in favour of the defendant, at the time of commencement of tenancy, the defendant was estopped from denying the title of the landlord, the plaintiff. Referring to Section 116 of the Evidence Act and several judgments to this effect, the learned SBCSA NO.77/2008–DHARMI CHAND V/S PARASMAL AND ANOTHER : JUDGMENT DTD. .19.9.2008 4/9 counsel for the respondent – plaintiff submitted that the question relating to the title or ownership of the suit property was not relevant, but since the relationship of the landlord and tenant was established by the plaintiff under Ex.1 rent-note dtd.19.7.1980, therefore, the decree was rightly granted by two Courts below and he further submitted that finding relating to relationship of landlord – tenant was a finding of fact and as a matter of fact, no substantial question of law arises in the present second appeal. The learned counsel for the respondents relied upon the following judgments in support of his case: 7. In the case of Shriram Pasricha V/s P.C.Jagannath reported in AIR 1976 (SC) 2335, the Hon'ble Supreme Court held as under: “It is only the landlord who can terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant.” 8. In the case of Nagendra V/s J.Khan reported in 1995(2) RLW (Raj.) 331, this Court has held as under: SBCSA NO.77/2008–DHARMI CHAND V/S PARASMAL AND ANOTHER : JUDGMENT DTD. .19.9.2008 5/9 “(8) I have given my thoughtful consideration to the aforesaid argument raised on behalf of the revisionist. In my humble opinion a suit for ejectment under Act. No.17 of 1950 is always filed by a landlord who has givne the premises to a tenant on rent and to whom rent is payable. In nut shell, suit for eviction is filed by a landlord against his tenant with whom a contract of tenancy exist. Under Act No.17 of 1950 the question of title or ownership is not to be decided only rights and liabilities of landlord and tenants are to be decided. (9) The element of ownership of the premises is not one of the characteristic of a landlord but it is receipt of the rent or right to receive the rent which is dominating factor within the meaning of section 3(iii) of Act No.17 of 1950. The expression “Landlord” used U/s 3(iii) of the aforesaid Act does not include “owner” within its ambit as the ownership to the premises cannot be subject matter of tenancy. The question of ownership or title normally cannot be gone into in a suit or proceeding initiated under Act No.17 of 1950.” 9. In the case of LRs of Mool Chand V/s Chhitarmal and ors. reported in 2004(2) DNJ (Raj.) 848, this Court has held that relationship of landlord and tenant is a question of fact and same cannot be assailed in second appeal. SBCSA NO.77/2008–DHARMI CHAND V/S PARASMAL AND ANOTHER : JUDGMENT DTD. .19.9.2008 6/9 10. In the case of J.J. Lal (P) V/s M.R. Murli reported in 2002 (3) SCC 98, the Hon'ble Supreme Court has held as under: “18. What amounts to denial of title, and whether such denial is bona fide or not, are the questions to be determined in the facts and circumstances of each case. As a general rule the vulnerability of denial of title by the tenant shall be tested by reference to the rule of estoppel contained in Section 116 of the Evidence Act which estops the tenant from denying the title of the landlord at the commencement of the tenancy and the estoppel continues to operate so long as the tenant does not surrender possession over the tenancy premises to the landlord who inducted him in possession. The tenant is not estopped from denying the title of the landlord if it comes to an end subsequent to the creation of tenancy nor is he estopped from questioning the derivative title of a transferee of his landlord. However, the rule of estoppel contained in Section 116 of the Evidence Act is not exhaustive. To operate against the tenant as providing a ground for eviction under Section 10 of the Act, a mere denial of the title of the landlord is not enough; such denial has to be “not bona fide”. “Not bona fide” would mean absence of good faith or non- SBCSA NO.77/2008–DHARMI CHAND V/S PARASMAL AND ANOTHER : JUDGMENT DTD. .19.9.2008 7/9 genuineness of the tenant's plea. If denial of title by the tenant is an outcome of good faith or honesty or sincerity, and is intended only to project the facts without any intention of causing any harm to the landlord it may not be “not bona fide”. Therefore, to answer the question whether an assertion of denial of the landlord's title by the tenant was bona fide or not, all the surrounding circumstances under which the assertion was made shall have to be seen.” 11. In the case of Vasudeo V/s Balkishan reported in JT 2002(1) SC 97, the Hon'ble Apex Court held that even a sub-tenant cannot attorn the tenancy to the principal landlord i.e. he must first surrender possession to his landlord. This authority was further approved and relied upon in JT 2002(7) SC 296 – Ritalal V/s Rajkumar singh. 12. I have given my thoughtful consideration to the rival submissions made at th Bar and perused the record of the case and impugned judgments of the Courts below. 13. This Court is of the clear opinion that no substantial question of law arises in the present second appeal. As far as question of adoption and filing of the suit through next friend by plaintiff Parasmal is concerned, no serious dispute was raised by the learned counsel for the appellant – defendant in this regard. The contention of the SBCSA NO.77/2008–DHARMI CHAND V/S PARASMAL AND ANOTHER : JUDGMENT DTD. .19.9.2008 8/9 learned counsel for the appellant that the property in question having been sold by Smt. Jatni Devi to the defendant also does not dislodge the eviction decree of the two courts below. The rent note dtd.19.7.1980 executed by the defendant himself in favour of the plaintiff Parasmal as adoptive son of Banshi Lal is a clear proof that the defendant admitted the landlord-tenant relationship between the parties. The subsequent sale-deed dtd.20.9.1980 allegedly executed by Smt. Jatni Devi in favour of the defendant is a document neither proved nor of great significance in the present eviction matter. It is well settled that while deciding eviction matter, the Courts or Rent Tribunals are not required to pronounce upon the ownership right of the landlord. The definition of landlord under Section 3(iii) of the Act as well as ratio of various judgments on points are clearly indicative of the law that the landlord need not be the owner of the suit premises and if he is entitled to receive the rent or is in fact receiving such rent from the tenant, the tenant is estopped from denying his title as landlord and his right to receive such rent at the time of commencement of tenancy in view of Section 116 of the Evidence Act. Subsequent claim of purchase of property by the defendant except when such a property as a whole is purchased overriding the right of the plaintiff landlord, the relationship of landlord - tenant continues and if the grounds of eviction specified in Rent Control Act are established by the plaintiff, he is entitled to a decree of eviction. In the present case the sale of property in question claimed to have been made by the wife of adoptive father of the SBCSA NO.77/2008–DHARMI CHAND V/S PARASMAL AND ANOTHER : JUDGMENT DTD. .19.9.2008 9/9 plaintiff Smt. Jatni Devi cannot be held to be over-riding the right of the plaintiff as landlord. The said sale-deed dated 20.9.1980 though not proved by the defendant and therefore cannot be considered, yet it cannot wipe out the effect of rent note dtd.19.7.1980 (Ex.1). 14. The production of Will with the application under Order 41 Rule 27 C.P.C. in support of said right of the defendant is also not relevant to the grounds of eviction raised and established by the plaintiff in the present case. Therefore, the learned Courts below cannot be said to have committed any error in rejecting the application under Order 41 Rule 27 C.P.C. 15. Thus, in view of aforesaid, this Court is of the view that no substantial question of law arises in the present second appeal and the same is devoid of merit. The Courts below cannot be said to have given any perverse findings nor there is a case of misreading of evidence by the Courts below. This second appeal is found to be devoid of merit and the same is accordingly dismissed. No order as to costs. (Dr.VINEET KOTHARI)J. Ss/-