// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN S.B. CIVIL SECOND APPEAL NO.213/2001 SMT. SWAROOP DEVI & ANOTHER …DEFENDANTS-APPELLANTS VERSUS MURTI BHAGWAN SATYA NARAINJI TEMPLE OF SATYA NARAINJI, PURANI TONK, TONK ...PLAINTIFF-RESPONDENT DATE OF JUDGMENT :::: 1st October, 2007 PRESENT HON’BLE MR. JUSTICE NARENDRA KUMAR JAIN Shri N.K. Maloo, Counsel for defendant-appellants Shri B.L. Mandhana, Counsel for plaintiff-respondent ##### //Reportable// By the Court:- Heard learned counsel for both the parties. This second appeal on behalf of the defendant- tenant, under Section 100 of the Code of Civil Procedure, arises out of a suit for eviction and arrears of rent filed by the plaintiff-respondent against the defendant- appellant, which has been decreed by both the courts below on the ground of denial of title as well as tenancy of plaintiff by the defendant. Briefly stated the relevant facts of the case are as under - The plaintiff filed a suit for eviction, in respect of rented premise, in the trial court, on 29.1.1980 // 2 // wherein it was pleaded that the defendant took the suit premise, the description of which is mentioned in Para 1 of the plaint, from one Saubhagmal adopted son of Nathulal, on monthly rent of Rs.8/- and executed a rent- note dated 12th July, 1978 (Exhibit-1) in favour of Saubhagmal. Shri Saubhagmal gifted the said property to the plaintiff through registered gift-deed dated 26th November, 1979 (Exhibit-2). The defendant has not paid the monthly rent of the rented premise since January, 1979, therefore, the defendant is a defaulter and thus liable to be evicted therefrom. Shri Saubhagmal also gave a right to the plaintiff to recover the due rent from the defendant, therefore, the plaintiff is entitled to recover a sum of Rs.96/- for 12 months for the period from 1.1.1979 to 31.12.1979. It was also pleaded that tenant has also willfully caused substantial damage to the rented premise. It was further pleaded that there is a bona-fide requirement of the rented premise to plaintiff. The defendant filed his written-statement, on 19.5.1980 wherein he denied the contents of the plaint and pleaded that he never executed any rent-note in favour of Saubhagmal nor he took the disputed property on rent from him. He never remained tenant of Saubhagmal. Shri Saubhagmal has no connection whatsoever with the disputed house and the owner thereof is Mst. Gopi W/o // 3 // Mohanlal, who had mortgaged the disputed property with the defendant about 8 to 10 years ago, and, as such, the defendant is in possession of the disputed property. It was also pleaded that the defendant is not the tenant of any person in the disputed property. The plaintiff filed an application in the trial court on 25th July, 1980 stating therein that the defendant, in his written-statement, has denied the title and tenancy of the plaintiff as well as Saubhagmal, therefore, he has denied the title of landlord, therefore he is liable to be evicted on this ground also, and prayed for inclusion of this ground of eviction also in the suit and to frame an issue on it also. A copy of application was served upon the learned counsel for the defendant and the case was fixed for reply and arguments on application on 21st August, 1980. The defendant did not file any reply to the said application. The trial court, on the basis of pleadings of the parties and application, framed four issues on 21st August, 1980. Issue No.1 was – as to whether the defendant took the disputed house on monthly rent of Rs.8/- from Saubhagmal and executed a rent-note-agreement dated 12th July 1978. Issue No.2 was – as to whether the defendant is a tenant in the disputed house of the plaintiff. Issue No.3 was – as to whether the defendant has denied the title and tenancy of // 4 // landlord and he is liable to be evicted. Issue No.4 was relating to relief. In support of their contentions, both the parties led oral and documentary evidence and, after hearing both the parties and examining the record of the case, the trial court, vide its judgment dated 5th March, 1990, decided all the issues in favour of the plaintiff and against defendant, and consequently decreed the suit for eviction against the defendant from the disputed house. Being aggrieved with the same, an appeal was preferred by the defendant. The first appellate court, vide its judgment and decree dated 7th March, 2001, affirmed the finding of the trial court on all the issues and dismissed the appeal of the defendant. Hence, the defendant-appellant preferred this second appeal before this Court on 27th March, 2001. During the pendency of this appeal, the learned counsel for the appellant filed two applications, one under Order 41 Rule 27 of the CPC contending therein that during the pendency of the second appeal the appellant no.2, who is son of appellant no.1, has purchased the house of which the disputed property is a part, vide registered sale-deed dated 7th May 2001, from Smt. Gopi Bai. A certified Photostat copy of the registered sale- deed dated 7th May 2001 has been annexed with the application and it has been prayed that it may be taken // 5 // on the record. The another application is to direct the respondent to produce the registered document executed by Smt. Sunder Bai in favour of PW-2 Saubhagmal as stated by Saubhagmal in his statement. Both the applications are pending, which are also being disposed of by this order. The learned counsel for the appellant Shri N.K. Maloo contended that the disputed house was belonging to one Smt. Sunder Bai W/o Nathulal, who executed a registered ‘will’ dated 28th December 1967 (Exhibit D-1) in favour of Smt. Gopi Bai Daughter of Kesarlal, who mortgaged the disputed house with the defendant and, as such, defendant is in occupation of the disputed house. The defendant never executed rent-note-agreement dated 12th July 1978 in favour of Saubhagmal. He further argued that, during the pendency of this second appeal, the appellant No.2 S/o Banne Singh has purchased the disputed property through registered sale-deed dated 7th May 2001 from Smt. Gopi Bai, therefore, he has now become absolute owner of the property, in dispute. He has filed a copy of sale-deed in this Court with application under Order 41 Rule 27 of the CPC. The learned counsel for the appellants also argued that it was a duty of the plaintiff to plead and prove that there was existence of relationship of landlord and tenant in between the plaintiff and the defendant. The plaintiff could not prove that after execution of the // 6 // registered gift-deed dated 26th November 1979 by Saubhagmal in favour of the plaintiff, any notice was given by Saubhagmal or plaintiff to the defendant or any rent was paid by the defendant to Saubhagmal or plaintiff or any attornment was made. He, therefore, contended that when relationship of landlord and tenant itself is not established in between plaintiff and defendant then the denial of title or tenancy of plaintiff by defendant in written-statement or by way of execution of sale-deed dated 7.5.2001 by Smt. Gopi Bai in favour of defendant are of no consequences. They can be construed as denial of title or tenancy provided it is established that relationship of landlord and tenant is first established, which is not established in the present case in view of his submissions, as mentioned above. Learned counsel for the appellants, in support of his contentions, cited following judicial pronouncements:- 1. S. Thangappan v. P. Padmavathy - 1999 (7) SCC 474. 2. J.J. Lal Private Limited and Others Vs. M.R. Murali and Another - 2000 (3) SCC 98. 3. Mirkhan Nathekhan Vs. Kutab Ali - 1979 (1) RCR 508. 4. Shiv Narain Vs. Bal Kishan - 1979 (1) RCR 626. // 7 // 5. Raja Mohammad Amir Ahmad Khan Vs. Municipal Board of Sitapur and Another - AIR 1965 SC 1923. Learned counsel for the respondent, Shri B.L. Mandhana, contended that the present suit was a simple suit for eviction of defendant from the rented premise filed by the plaintiff based on rent-note-agreement dated 12th July 1978 (Exhibit-1) as well as gift-deed dated 26.11.1979 (Exhibit-2) and, while deciding Issues No.1 and 2, both the courts below have recorded a finding that the execution and contents of Exhibit 1 and Exhibit-2 are proved and defendant is a tenant of plaintiff and, this being a question of fact, the finding of fact recorded by both the courts below in this regard cannot be questioned by the appellants. He further contended that the suit for eviction was filed on 28th January 1980 and written- statement was filed on 19th May 1980. The defendant pleaded that Mst. Gopi Bai mortgaged the disputed property with him about 8 to 10 years ago. As per the case of the defendant, the property was belonging to Sunder Bai and she executed a ‘will’ dated 28th December 1967. The said will has been exhibited in the case but no witness of will has been examined, hence the contents of will are not proved in the case. The defendant neither proved will of Sunder Bai nor proved as to when Sunder Bai died and Gopi Bai became the owner on the basis of registered ‘will’ dated 28th December 1967; he contended // 8 // that when Gopi Bai was not the owner in the year 1970 then she was not competent to mortgage the disputed property with the defendant in the year 1970. The date, month or the year of the mortgage has not been mentioned in the written-statement. However, DW-1 Banne Singh has stated in his statement that the disputed property was mortgaged with him in the year 1970. He, therefore, contended that in absence of any specific date of death of Sunder Bai on the record it couldn’t be presumed that Gopi Bai became owner and she mortgaged the disputed property with the defendant. He further contended that in absence of alleged mortgage in favour of defendant in writing and its registration also, as it was in respect of immovable property, it couldn’t be presumed that the contention of the defendant in this regard is correct. He also contended that so far as arguments of learned counsel for the appellant, that after execution of registered gift-deed dated 26th November 1979 no notice was given to defendant, is concerned, he referred to the statement of defendant Banne Singh DW-1, wherein he admitted that he received a notice from Saubhagmal. He also referred the rent-note-agreement (Exhibit-1), which is annexed with a stamp of Rs.3/- purchased on 12th July 1978 by defendant Banne Singh. It bears the signature of defendant Banne Singh and it is annexed with rent-note- agreement (Exhibit-1), which is also signed by the // 9 // defendant Banne Singh. He contended that during cross- examination PW-2 Saubhagmal specifically denied this fact that this stamp of Rs.3/- (Exhibit-1) was brought by Banne Singh for Gopi Bai, therefore, it is clear that this stamp of Rs.3/- (Exhibit-1) was purchased and brought by defendant on 12th July 1978 for execution of rent-note-agreement. He also contended that the defendant Banne Singh, in his examination-in-chief, did not deny specifically about execution of Exhibit-1 rent-note- agreement. He also contended that although the execution of Exhibit-1 rent-note-agreement is found to be genuine and proved by both the courts below, but still the learned counsel for the appellant is arguing it in second appeal that the said document is forged one, whereas the defendant did not take a specific plea in the written- statement that Exhibit-1 is a forged document. He also contended that, in fact, the defendant is in habit of manipulation of the facts and documents. The defendant came with a case that Gopi Bai mortgaged the property with him in the year 1970, but no mortgaged-deed has been placed on the record. He also contended that the suit was filed on 28th January 1980; the judgment of the trial court was passed on 5th March 1990; the judgment of the first appellate court was passed on 7th March 2001 and the second appeal, before this Court, was filed on 27th March 2001, and even thereafter by manipulating the facts and // 10 // things, the appellant No.2 got one sale-deed executed on 7th May 2001 from Gopi Bai who had no authority to execute the same. The learned counsel for the respondent, Shri B.L. Mandhana, also contended that the alleged sale-deed dated 7th May 2001 has been drafted by none else but a person who was the counsel for the defendant in the first appeal, therefore, this sale-deed is a creative, manipulative and fabricated document and it is neither proved nor exhibited in evidence, and, looking to all the facts and circumstances of the case, the application filed by the appellants under Order 41 Rule 27 of the CPC to take the said sale-deed on the record is also liable to be dismissed. He also contended that another application to direct the production of plaintiff's witness's document by plaintiff/respondent is also liable to be dismissed being frivolous and not maintainable. So far as existence of relationship of landlord and tenant in between the plaintiff and defendant is concerned, the learned counsel for the plaintiff- respondent contended that soon after execution of registered gift-deed dated 26th November 1979 (Exhibit-2), the title of assignee was complete and the attornment was automatic and in this connection he relied upon the decision of this Court in – Ram Saran Sharma Vs. Smt. Kamla Acharya – 2001 (2) RLR 136 . He also contended that // 11 // all the three Issues are relating to question of facts and there is concurrent finding of facts by both the courts below, which cannot be interfered with by this Court in second appeal under Section 100 of the Code of Civil Procedure. He further contended that no substantial question of law is involved in this second appeal and, after amendment made in the Code of Civil Procedure in the year 1976, a second appeal can only be admitted on a substantial question of law and since no substantial question of law is involved in this second appeal, it is liable to be dismissed summarily. I have heard the learned counsel for both the parties and examined the judgment as well as the record of both the courts below. Before examining the merits of the case, I would first like to refer the judicial pronouncements referred by learned counsel for the parties in support of their contentions, which are as under – In S. Thangappan Vs. P. Padmavathy – (1999) 7 SCC 474, the Hon’ble Apex Court considered the provisions of Section 116 of the Evidence Act with reference to denial of title by tenant of an immovable property of landlord and held as under: - “14. This section puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the // 12 // 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’s title. Thus, this principle of estoppel debars a tenant from denying the title of his landlord from the beginning of his tenancy. However defective the title of such landlord could (sic may) be, such tenant cannot deny his title. But subsequent to his induction as tenant if the landlord loses his title under any law or agreement and there is a 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 tenancy will not be covered by this principle of estoppel under this section. In Mangat Ram Vs. Sardar Meharban Singh (1987) 4 SCC 319 this Court held: (SCC p.327, Para 11) “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 had since come to an end.” (Emphasis supplied) 15. Similarly in D. Satyanarayana v. P. Jagadish (1987) 4 SCC 424 also this Court holds in Para 4: (SCC p.428) “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 title, 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.” (Emphasis supplied). // 13 // In J.J. Lal Private Limited & Others Vs. M.R. Murali and Another – (2002) 3 SCC 98, the Hon’ble Supreme Court 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 the 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-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. The counter highlights the factum and contents of notice by the Municipal Corporation served on the tenant, reproduced in the earlier part of this judgment and the reaction of the tenants // 14 // to the threat coupled with temptation held out by the Corporation. This notice by the Municipal Corporation states the tenants having informed the Municipal Corporation that they were in possession of the premises; that they had agreed to pay to the Corporation the lease amount which was presumably in arrears on account of non- payment by their landlords (i.e. the respondents); that the Municipal Corporation threatened the tenancy premises being subjected to public auction if the arrears were not cleared. This notice is by reference to the letter dated 26.3.1993 sent by the tenants to the Municipal Corporation which is not available on record. The landlords on whom lay the burden of proving availability of the ground of eviction took no steps for the production of this letter. The contents of the letter would have provided vital evidence relating to the nature and manner of denial of title by the tenants and the bona fides of denial could have been inferred. The High Court in its judgment has made a reference to “a series of attempts to deprive the landlords of their lawful rights” by the tenants. The High Court appears to have taken into consideration some other documents referable to some other litigation between the parties which documents, in our opinion, could not have been taken into consideration unless tendered in evidence and brought on record consistently with procedural law governing trial of civil cases. There is yet another error committed by the High Court. So far as the additional counter and contents of the notice by the Municipal Corporation to the tenants are concerned we do not think that a case of denial of title is made out. In any case it cannot be considered to be “not bona fide”. The tenants have stated that the ultimate owners of the property were the Municipal Corporation and they had agreed their willingness to pay rent to the Municipal Corporation under threat of eviction solely for the purpose of protecting their own possession over the premises. They have neither disowned the // 15 // title of their own landlords at the inception of the tenancy nor have set up any title in themselves nor attorned in favour of the Municipal Corporation by voluntarily entering into direct tenancy with the Municipal Corporation bypassing their own landlords. We are therefore clearly of the opinion that no case of eviction on the ground of tenants’ denial of landlords’ title being “not bona fide” is made out. 19. For several reasons, we are of the opinion that a decree on the ground of denial of the landlord’s title by the tenant and such denial being not bona fide could not have been a ground for directing eviction of the tenants in the present case. Firstly, the application for eviction filed by the landlords do not plead such a cause of action, setting out material facts and as providing a ground for relief of eviction. The plea taken by the defendant-tenants in their additional counter does not by itself amount to denial of title so as to render them vulnerable to eviction by attracting applicability of Section 10(2)(vii) of the Act. The basic question was whether the landlords themselves treated the plea taken by the tenants in their additional counter as denial of their title and if that be so, the landlords should have amended their application for eviction incorporating the averment that the said additional counter amounted to denial of title of the landlords and such denial was not bona fide. Thereupon the tenants would have had an opportunity of explaining the facts and circumstances in which the additional counter, along with the pleas raised therein, came to be filed and if that amounted to denial of landlords’ title then how did they propose to justify such denial as bona fide. Such pleas could have been the subject-matter of trial and evidence adduced by the parties followed by expression of opinion by the Controller as to whether a ground for eviction was made out or not. Before the Controller none of the parties were alive to the fact // 16 // that alleged denial of title by the tenants could possibly be clicked by the landlords as a ground for eviction. The Appellate Authority for the first time formulated a point at issue touching this ground during the course of its decision and yet held in favour of the tenants holding that such denial was bona fide. If at all the Appellate Authority was inclined to frame an issue then it ought to have been tried on the lines laid down in Order 41 Rule 25 of the Code of Civil Procedure. The High Court, as already stated, shifted the emphasis and treated the denial of title by the tenants as primary ground for eviction and proceeded to decide the same. Thus what was not in issue before the trial court at all became the core issue on which the High Court has founded its decision. This is not only violative of