1 WP 5754/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5754 OF 2010 Chandru Narayandas Kirpalani .. Petitioner V/s Keverner Powergas India Pvt. Ltd. .. Respondent Mr. N.N. Vaishnawa i/b N.N. Vaishnawa & Co. for the petitioner. CORAM : D.G. KARNIK, J. DATE : 17TH AUGUST 2010 P.C. : 1. Heard. 2. By this petition, the petitioner challenges the order dated 3 April 2010 passed by the learned Judge of the Small Causes Court, Mumbai, rejecting the petitioner’s application at Exhibit-10 containing duel prayers, one for amendment of the plaint and the second for permission to inspect the suit premises. 3. The suit premises were given on license to the petitioner by late Smt. Devibai Kripalani. The petitioner claiming to be a son of late Devibai filed a suit for eviction of the respondent in the Small Causes Court, Mumbai. In the written statement, the 2 WP 5754/10 respondent denied that the petitioner was the landlord of the suit premises. He contended that the late Devibai was the owner and she had 9 children and the petitioner was not the owner of the suit premises. On the respondent filing the written statement denying the title of the petitioner, he made an application for amendment of the plaint claiming possession on the ground of forfeiture of tenancy on account of denial of title of the landlord. In the said application, he also prayed that he being a landlord had right to inspect the premises and the respondent be directed to give inspection of the suit premises. Both the prayers were rejected by the trial court by the order dated 3 April 2010. That order is impugned in this petition. 4. Section 116 of the Evidence Act reads thus: “116. Estoppel of tenant and of licensee or person in possession.- No tenant of immovable property, 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 license of the person in possession thereof, shall be permitted to deny that 3 WP 5754/10 such person had a title to such possession at the time when such license was given.” A tenant of an immovable property and any person claiming through the tenant, during the continuance of the tenancy, is prohibited to deny that the landlord of such tenant at the beginning of the tenancy had title to the property let. Similarly, a licensee of the person in possession of the immovable property is prohibited to deny that such person had a title to such possession at the time when the license was given. The prohibition under section 116 of the Evidence Act applies against the denial of the title of the person who gave the premises on rent or who gave the premises on license. It does not prevent the tenant or the licensee from denying a title of a person who is not the original landlord/licensor, but claims to have acquired the title from the original owner whether by way of a transfer inter vivos or by inheritance. In fact, when the tenant denies the title of the transferee who claims to have acquired the title either by a transaction inter vivos or by inheritance, he does not denying title of the original owner but in fact asserts it by saying that the original owner continues to be the owner and the person claiming derivative title is not the owner. Section 116 of the Evidence Act, therefore, does not 4 WP 5754/10 prohibit a tenant or a licensee from denying the derivative title of any person who claims to have acquired the property from the original owner. Consequently, there is no question of forfeiture of tenancy by denying a derivative title of the transferee claiming a derivative title. The trial court has held that the denial of a title of the transferee claiming a derivative title does not amount to forfeiture of tenancy and consequently the amendment cannot be allowed. The view taken by the trial court is in consonance with law. 5. Undoubtedly, section 28 of the Maharashtra Rent Control Act confers a right on the landlord to inspect the premises let or given on license at a reasonable time after giving prior notice to the tenant, the licensee or the occupier. The right conferred under section 28 of the Maharashtra Rent Control Act is on the landlord. In the present case, the relationship of landlord and tenant is denied by the respondent who claims that the petitioner has not inherited the property and is not the landlord. Consequently, issue no.1 as framed framed by the trial court reads thus: “Whether the plaintiff proves the relationship as a landlord and tenant between him and the defendant.” 5 WP 5754/10 Since the relationship of landlord and tenant is itself denied by the respondent by claiming that the petitioner has no derivative title, the trial court did not commit any error in rejecting the prayer till the relationship of landlord and tenant was established. There is no merit in the writ petition which is hereby rejected. (D.G. KARNIK, J.)