1 WP.4428.95 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO. 4428 OF 1995 Mrs. Munnidevi Parasram Purohit. ... Petitioner Versus 1(a) Rameshchandra Maniar and others. ... Respondents ----- Mr. H.J.Thakkar, Senior Counsel, a/w Mrs. U.K.Shah and Mr. K.D.Shah for the Petitioner. Mr. P.K.Dhakephalkar, Senior Counsel, a/w Mr. Vineet Naik and Mr. Ruchir Tolat i/b L.C.Tolat and Company for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 30 th November, 2011. ORAL JUDGMENT: 1 Heard the learned senior counsel appearing for the Petitioner and the learned senior counsel appearing for the Respondents. 2 This is a petition under Article 227 of the Constitution of India preferred by the original Plaintiff. The original Respondent is the Defendant. The present Respondents are the legal representatives of 2 WP.4428.95 the original Respondent. With a view to appreciate the submissions made by the learned senior counsel appearing for the parties, it will be necessary to make a brief reference to the facts of the case. 3 The Petitioner filed a suit being R.A.E Suit No.1286/4196 of 1984. It was contended in the said suit that the Petitioner is the landlady in respect of the building more particular described in the paragraph No.1 of the plaint. Earlier, the said building was owned by the Laxminarayan Mandir and Madhavbaug Charities Trust. The original Defendant – original Respondent was admittedly a statutory tenant in respect of a flat (hereinafter referred to as “the suit premises”) on the 5 th floor of the building. It is contended that on 9 th June, 1981, the Trustees of the said Laxminarayan Mandir and Madhavbaug Charities Trust executed a deed of assignment in favour of the Petitioner. The Trustees also issued a letter of attornment on the same day to the original Respondent and other tenants in the building. It is contended that in the said suit that the tenancy was created in the year 1973. It is alleged that the original Respondent informed the Trustees 3 WP.4428.95 by a letter dated 31 st October, 1973 that the way leading to the terrace on the 6 th floor, will not be obstructed and that the original Respondent shall not have any objection to exercise of such right. The allegation made in the plaint is that the original Respondent was unlawfully preventing the Petitioner from exercising her rights to go to the terrace and to use the same. The allegation is made that on 25 th August, 1984, the rent collector of the Petitioner was prevented the entry to the terrace. 4 It is alleged that the original Respondent alongwith the other tenants in the building filed an application for fixation of standard rent being the Application R.A.N. No.287/SR of 1983 against the Petitioner and a third party who was not the owner of the larger property. It is alleged that in the said application, the Respondent denied and/or disputed the right of the Petitioner. A reference is made to the Interpleader Suit No.670 of 1982 filed by the original Respondent alongwith the other tenants. It is alleged that in the said suit, the Respondent disputed the status of the Petitioner as his 4 WP.4428.95 landlady. 5 On 29 th April, 1983, the Petitioner issued a notice of demand to the Respondent demanding the arrears of rent. Though the notice was served, rent was not paid and therefore, the Petitioner filed R.A.E. and R. Suit No.860/2955 of 1983 against the original Respondent for possession on the ground of arrears of rent. The case of the Petitioner is that in the suit, a written statement was filed by the original Respondent disputing the claim of the Petitioner, though the original Respondent was fully aware that the Petitioner was his landlady. The said suit is pending. It is alleged in the present suit that the original Respondent has denied the title of the Petitioner as the landlady and therefore, by virtue of the forfeiture, the Respondent has lost the protection under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the said Act”). On that ground, the decree for possession was prayed for. A decree for perpetual injunction was prayed for restraining the original Respondent from interfering with the exercise of rights of the 5 WP.4428.95 Petitioner of using the terrace and preventing the Petitioner from entering the terrace. 6 Written statement was filed by the original Respondent in which he stated that he was the tenant in respect of the suit property. The original Respondent stated that the Petitioner has wrongfully contented that the landing comprising of areas D-1 and D-2 shown hatched on the plan annexed to the plaint is not the demised premises. It is contended that the access to the terrace was through the trash door which is marked as D-3 on the plan annexed to the plaint. 7 It was pointed out that prior to the execution of the deed of assignment in June 1981 by the Trustees, an auction was conducted by the Charity Commissioner of the said building. It was alleged that one Lilavati Shantikumar Gandhi and two others were declared as highest bidders. It was alleged that the husband of the original Respondent was the second highest bidder. Reference has been made to the suit filed by the said Lilavati Shantikumar Gandhi on the 6 WP.4428.95 Original Side of this Court for specific performance of the agreement for sale against the Trustees of the Trust in which the present Petitioner was impleaded as a party Defendant. Reference has been made to the interim order dated 6 th December, 1982 by which the Petitioner was restrained from creating third party rights in respect of the property. It was contended that in view of the pendency of the suit, the Petitioner has not yet established her ownership. A reference was made to the Interpleader Suit No.670 of 1982 filed by the original Respondent and the other tenants of the premises in the building in which it was contended that the ownership of the said building was not established. It was contended that the original Respondent was denying that the Petitioner is the landlady in view of the pendency of the said suit in this Court. 8 The parties adduced evidence. Various issues were framed by the trial Court including the issue whether the Petitioner was the landlady. Issue No.3 was framed on the basis of the alleged denial of the title of the Petitioner by the original Respondent. The trial Court 7 WP.4428.95 decreed the suit by holding that the original Respondent had denied the title of the Petitioner. Therefore, a decree for possession was passed and a decree for perpetual injunction was also passed. In the appeal preferred before the Appeal Bench of the Court of Small Causes by the original Respondent, the said decree has been set aside and the suit filed by the Petitioner has been dismissed. 9 The learned senior counsel appearing for the Petitioner pointed out that there is no dispute about the execution of the deed of assignment by the Trustees (the original landlords of the Respondent) in favour of the Petitioner. He submitted that there is no dispute regarding the service of letter of attornment by the Trustees to the original Respondent. He pointed out that on 26 th May, 1981, the Charity Commissioner granted sanction for the sale of the property to the Petitioner and on the basis of the said order, the deed of assignment was executed. He pointed out that though a writ petition was filed by said Lilavati Shantikumar Gandhi and others in this Court 8 WP.4428.95 for challenging the order of sanction of the Charity Commissioner, the said petition was dismissed and the appeal arising out of the said petition was also dismissed by the Division Bench of this Court in the year 1987. He pointed out that notwithstanding the said order which has the result of upholding the deed of assignment in favour of the Petitioner, in the present suit, a written statement was filed in the year 1992 denying the title of the Petitioner. He submitted that the original Respondent did not dispute the title of the Trustees and the fact that the Trustees were landlords and therefore, after the Trustees had issued the letter of attornment to the original Respondent, he could not have denied the title of the Petitioner as the landlady. He pointed out the averments made in the R.E.S. Application No.641 of 1982 filed by the original Respondent and others. He pointed out the examination- in-chief of the husband of the Respondent in the said application and submitted that in the examination-in-chief which was recorded in June 1986, the husband of the Respondent accepted the status of the Petitioner as the landlady. He relied upon the decision of the Apex 9 WP.4428.95 Court in the case of Majati Bsubbarao Vs. P.V.K.Krishna Rao (deceased) By LRS.[(1989) 4 Supreme Court Cases 732]. He relied upon the decision of the Apex Court in the case of J.J.Lal Pvt. Ltd. and others Vs. M.R.Murali and another [(2002) 3 Supreme Court Cases 98]. He also relied upon two other decisions of the Apex Court in the case of Tej Bhan Madan Vs. II Additional District Judge and otehrs [AIR 1988 Supreme Court 1413] and in the case of Raja Mohammad Amir Ahmad Khan Vs. Municipal Board of Sitapur and another [AIR 1965 Supreme Court 1923]. He relied upon a decision of this Court in the case of Silver Jubilee Dryers and Cleaners & ors Vs. Hiralal Nemichand Shah & anr [2006 (6) Bom.C.R. 530]. Lastly, he relied upon a decision of the Allahabad High Court in the case of Ramdas Vs. Shree Ram Lakshman Janki [A.I.R. 1953 ALL 797]. 10 He invited the attention of the Court to the findings recorded by the Appellate Court. He submitted that one of the findings 10 WP.4428.95 recorded is that the suit was not maintainable under Section 28 of the said Act. He submitted that the Appellate Court has taken erroneous view that as the plaint was not amended for relying upon denial of the title of in the written statement, the denial of the title in the written statement was not relevant. He submitted that the observation of the Appellate Court that the Petitioner's C.A. has not deposed to do denial of the title in his affidavit in lieu of examination-in-chef is irrelevant. He submitted that the denial of the title of the Petitioner by the original Respondent in the Interpleader Suit, in the application for fixation of standard rent and in the written statement filed to the present suit was duly proved. 11 The learned senior counsel appearing for the Respondents has tended an affidavit of Respondent Nos.1(a) to 1(c) filed on their behalf as well as on behalf of the other Respondents. The affidavit is filed for stating that the Respondents shall remove the door marked as D-1 on the sketch plan marked as Exhibit – 1 annexed to the said 11 WP.4428.95 affidavit to ensure that there is a complete free access to the Petitioner or to any person authorized by the Petitioner to use the door marked as D – 3 on the sketch for going to the terrace of the said building. The said affidavit is taken on record and marked 'X' for identification. 12 I have given careful consideration to the submissions. I have perused the pleadings and notes of evidence. It cannot be disputed that even in respect of a tenant who is protected under the said Act, a decree for eviction could be passed on the ground of denial of the title of the landlord. The said principle is based on the principle of estoppel under Section 116 of the Indian Evidence Act, 1872 and on clause (g) of Section 111 of the Transfer of Property Act, 1882 (hereinafter referred to as “said Act of 1882”) which provides for forfeiture of the tenancy. Clause (g) of Section 111 of the said Act of 1882 reads thus: “(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in 12 WP.4428.95 himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease: ” (Underline added) Thus, the ground of denial of title by the tenant for eviction will be available when the tenant renounces his character by setting up the title in a third party or by claiming the title himself. The said ground is thus available when the tenant denies his status as a tenant or sets up the title himself or in a third person. Thus, the renunciation contemplated by clause (g) of Section 111 of the said Act of 1882 should be the renunciation by the tenant of the fact that the person who is his landlord is in fact not the landlord. 13 It will be necessary to make a reference to the decision of this Court in the case of Silver Jubilee Dryers and Cleaners & ors (Supra). Paragraph No.31 of the said decision reads thus: “31. The ratio of the aforesaid 2 judgments referred to hereinabove unequivocally go to to show that if the tenant 13 WP.4428.95 is apprised of the transfer of title of landlord and if he had acknowledged title of transferee, expressly or impliedly by paying rent to him; then also rule of estoppel comes into operation. The tenant is not permitted to approbate and reprobate and challenge relationship of landlord and tenant. That the denial of title in the written statement can also be foundation of decree for eviction. Following the principles of law holding the field, applying the same to the facts and circumstances of the case at hand, it would be clear that the petitioners-tenants have denied title of the plaintiffs-petitioners-landlords, who had taken over landlordship of the premises. It would, thus, be clear that denial of title was not bona fide. It was just to protect the litigant. Both the courts below have rightly taken a view that in view of denial of title tenants had forfeited right of tenancy and plaintiffs were entitled for possession of the suit premises. No fault can be found with the findings recorded. The findings of facts recorded by the courts below can very well be supported by evidence on record. The view taken by the Courts below is a reasonable and possible view. This Court, not being a Court of Appeal is not expected to reappreciate the evidence.” (Emphasis added) It will be also necessary to make a reference to what is held by the Apex Court in the case of Tej Bhan Madan (supra). In paragraph Nos.6-7 of the said decision, the Apex Court has observed thus: 6-7. In the present case the plea of the landlord is that the general principles of estoppel preclude the tenant from denying the title of the person to whom he has attorned. In Kumar Krishna Prasad's case their Lordships observed: ".... The principle does not apply to disentitle 14 WP.4428.95 a tenant to dispute the derivative title of one who claims to have since become entitled to the reversions, though in such cases there may be other grounds of estoppel e.g., by attornment, acceptance of rent etc. ......" "The section does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant .............. Whether during the currency of a term the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term is estopped from disputing the claim which he has once admitted are important questions, but they are instances of cases which are outside Section 116 altogether ......" (emphasis supplied) In regard to the effect of attornment Spencer Bower on Estoppel says: "192. Where a tenant, with full knowledge of the facts, either expressly in writing, or impliedly by acts, such as the payment of rent, attorns tenant to a person other than his original landlord or one who is claiming the estate or interest of such original landlord by assignment, succession, or otherwise, he is ordinarily estopped from questioning the title of the person to whom he has so attorned. But, here too, it is open to the party sought to be estopped to explain away the attornment, and so escape the estoppel to which is would otherwise be subject, by proof that, when he so attorned, he was labouring under mistake or ignorance as to material facts affecting the title of the person to whom he attorned, 15 WP.4428.95 particularly if such error or ignorance was due to the fraud of that person." (emphasis supplied) (Estoppel by Representation by Spencer Bower & Turner-III Edn.) The concurrent findings of facts in this case-it is indeed a matter of admission of the appellant-that ever- since the purchase by Gopinath Agarwal the appellant attorned the tenancy in his favour and paid rent to him. Appellant did not establish that there was misrepresentation on the part of Gopinath or mistake on the part of the appellant misleading appellant into this attornment. High Court observes: "....... In the courts below, an attempt was made to get over the effect of the defendant having attorned to Gopinath Agrawal by trying to demonstrate that the attornment was as the result of fruad and mis- representation practised by Gopinath Agrawal. Both the Courts below have rejected this plea, which is undisputably purely one of fact. Counsel for the petitioner made no attempt to show that the said finding of the courts below is wrong." 14 It will be also necessary to make a reference to paragraph No.11 of the decision of the Apex Court in the case of Raja Mohammad Amir Ahmad Khan (supra). In paragraph No.11 of the said decision reads thus: “(11) Section 111(g) embodies in statutory form this accident of a tenancy and it reads: “a lease of immovable property would be determined by forfeiture in case the lessee 16 WP.4428.95 renounces this character as such by setting up a title in a third person or by claiming title in himself”, to quote the material words. No doubt, the provisions of the Transfer of Properties Act were not, it is stated in terms, applicable to the area in question, but it has been laid down that the principles embodied in S. 111(g) are equally applicable to tenancies to which the Act does not apply on the ground of the same being in consonance with justice, equity and good conscience (See Maharaja of Jaypore v. Rukmini Pattamabhadevi, 46 Ind App 109: (AIR 1919 PC 1). It was also clear law that permanent forfeiture are within the rule and are liable to forfeiture of there is a disclaimer of the tenancy of a denial of the landlord's title. That the disclaimer or the repudiation of the landlord's title must be clear and unequivocal and made to the knowledge of the landlord is also beyond dispute. The question then is whether the learned Judges of the High Court were right in holding that by the statement filed on behalf of the appellant before the Land Acquisition Officer marked as Ex. A-18 the appellant had renounced his character as lessee claiming title in himself. For answering it we have to consider whether on the terms of Ex. A-18: (1) the appellant had asserted an ownership in himself repudiating the title of the Government, and (2) whether the terms of this assertion of ownership are clear and unequivocal." (Underline supplied) 15 Now turning to the written statement filed by the original Respondent in the present suit, in clause (b) of paragraph No.4, there is a reference to the suit for specific performance filed by the said Lilavati Shantikumar Gandhi against the Trustees to which the 17 WP.4428.95 Petitioner was a party and the injunction granted in the said suit restraining the Petitioner from selling or disposing off the building in which the suit premises is situated. In sub-paragraph No.(c), it is specifically stated that in view of the pendency of the suit, the Petitioner has not duly established her ownership. In this context in further part of clause (c), it is stated that it is not established that the original Respondent was a tenant of the Petitioner. In clause (d), a reference has been made to Interpleader Suit filed by the Respondents and other tenants. Much emphasis laid on what is stated in paragraph No.5 in the written statement which reads thus: “5. With reference to para 1 of the Plaint, this Defendant denies that the Plaintiff is the landlord/landlady in respect of the said building known as Shrinivas, in view of the fact that the suit is still pending in the Hon'ble High Court, regarding dispute of ownership of the building. This Defendant denies that the Defendant is a statutory tenant in respect of the suit flat as alleged or otherwise and puts the Plaintiff to the strict proof thereof. The Defendant says and submits this Defendant was and is ready and willing to abide by the decision of the Hon'ble High Court in Suit No.1081 of 1981 and accept either the Plaintiff herein or said Lilavat Gandhi as owner of the building as declared by he Hon'ble High Court in the said suit. Therefore, at the time of filing of the present suit the Plaintiff was not declared as owner of the said building.” 18 WP.4428.95 16 The first two lines of paragraph No.5 record the denial of the averments in the plaint that the Petitioner was the landlady. But the denial is in view of the fact that the suit for specific performance filed by the said Lilavati Shantikumar Gandhi against the original landlords – Trustees was pending. Thus, the denial is not simplicitor denial, but the denial is in the context of the pendency of the said suit for specific performance in this Court. It must be noted here that the said suit filed by the said Lilavati Shantikumar Gandhi was pending till 2004. So, the assertions made in paragraph No.5 of the written statement are in the light of the pending suit and therefore, the repudiation of the title allegedly made by the original Respondent cannot be said to be unequivocal and unqualified. In fact, the original Respondent has clearly asserted that he was willing to abide by the decision of the pending suit in this Court and accept either the Petitioner or the said Lilavati as the landlady as per the decision of this Court. The denial of title by the Respondent was not of the title of his original landlords. 19 WP.4428.95 The denial was of the derivative title pleaded by the Petitioner. 17 As far as the Interpleader Suit is concerned, the very fact that the Interpleader Suit was filed by the Respondent and other tenants shows that they were not sure as to who is entitled to receive the rent. Filing of such suit cannot amount to unequivocal repudiation of the title of the Petitioner. This action of filing the suit will have to be judged in the light of the pendency of the suit for specific performance in this Court. Similar are the averments made in the application for standard rent which proceed on the footing that the original Respondent was not sure as to who was the landlord. 18 The learned senior counsel appearing for the Petitioner relied upon the deposition of the husband of the original Respondent