1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 513 OF 1989 Mohammad Abdul Aziz s/o Nooruddin, died per legal representatives :- (1) Abdul Samad s/o A. Aziz (2) Salimuddin s/o A. Aziz (3) Shujauddin s/o A. Aziz (4) ayeshabi w/o M. A. Aziz (5) Zaherabi w/o Mahboob Saheb (6) Khairuddin w/o Ibrahim Saheb (7) Sajidbi w/o Gausuddin (8) Mahmoodbi w/o Gaffar Khan All residents of Udgir, Taluka Udgir, Dist.Latur Appellants/ori. Plaintiffs. versus Syed Hussain s/o Syed Saheb occup. business r/of Udgir District Latur. Respondent/ori. Defendant. --------- Shry Y.M.Khan, Advocate, holding for Shri K.G.Khadar, Advocate for the appellant. Shri Mohd. Mustafa Ahmed Momin Advocate for Respondent. 2 Coram : P.R. Borkar, J. Date : March 23, 2010 ORAL JUDGMENT 01. This second appeal is filed by original plaintiff's heirs whose suit bearing R.C.S. No.256 of 1980 was decreed by learned Civil Judge, Junior Division, Udgir on 31.7.1984, but that decree was set aside by the learned Additional District Judge, Latur in Regular Civil Appeal No. 184 of 1984 decided on 31.12.1988. The suit of the plaintiff was that the original plaintiff Mohammed Abdul Aziz was owner of the shop premises situated at Udgir of which Defendant was in possession as a tenant. Rent was Rs.100/= per month. The rent was not paid and thus there were arrears of Rs.3015 for the period 15.11.1977 to 14.11.1980. Suit for recovery of rent was, therefore, filed. 02. Defendant-Respondent contested the suit and denied that the suit premises were owned and possessed by original plaintiff Mohammed Abdul Aziz. However, the trial court decreed the suit and in appeal the learned Additional District Judge came to the conclusion that the plaintiff failed to prove his 3 title to the disputed shop and that he had no right to recover the rent. 3. This second appeal is admitted by order dated 15.12.1989 on ground Nos.2,3,5,6 and 12 of the appeal memo which read as follows:- (1) It was a simple suit filed by this Appellant for the recovery of rent. The Court of first instance found no difficulty in decreeing the suit in full, as the rent note executed by the Defendant-Respondent was quite rightly to be weighty enough to operate as an estoppel. The provision of Section 116 of the Evidence Act forbid the Defendant-Respondent from denying the title of the Plaintiffs-Appellants.The contention raised in the written statement about the title vesting in the third party is without any substance. This was answered in favour of the Appellant-Plaintiff as per Issue No.3 framed in the suit, holding that the Plaintiff-Appellant is entitled to recover the rent in dispute. But the learned Appellate Judge has upset the said finding in Point No.1 of its decession (decision) now under challenge. The ground on which such an adverse finding has been given is to be found in para 7 of the impugned judgment. The name (same) is challenged in this second appeal. This raises a substantial question of law as to whether the "locus standi" of the Plaintiff-Appellant can be disputed even after the execution of the rent note. (3) The fault has been unnecessarily found in para 7 of the impugned judgment that the pleadings are like in the plaint about the management of the Mosque. The learned Appellate Judge has, with respect forgotten that the Marathwada Wakf Board which is a statutory body created under the Wakf Act of 1954 had itself some forward through its Wakf Officer Latur in the District Court at Latur on 13th August 1986 praying that he be added as a party to the appeal bearing Civil Appeal No.184 of 1984 relying on 4 Section 59 of the said Act vide exhibit 26 but the same was rejected by the learned Additional District Judge, Latur on 27th April 1988. It is surprising that the next incumbent Judge appears to have ignored the said order and passed the final order in appeal through the impugned decree under appeal about the locus standi of the Plaintiff-Appellant. In effect, it has been held that the suit property belongs to the Mosque. This is a substantial question of law in this second appeal as to the impact of the rejection of Exhibit 26, when the Wakf Officer Latur was not found to be a proper party, much less necessary party, when new is it that the Mosque has been held to be the owner of the property. (5) There is no mention about the passing of the order below Exhibit 26 in the entire body of the impugned judgment. It appears that the order below Exhibit 26 was passed by the then Additional District Judge Latur Shri B.G. Gawande, whereas the present judgment under appeal was delivered by R.M.Deshpande, Additional District Judge, Latur. It is quite clear that the learned successor Judge has completely overlooked the earlier order passed by his learned predecessor. This commission is a substantial question of law for this second appeal. It is only the Appellate Court sitting over and above the District Judge who passed order below Exhibit 26 can upset the same. So far as the Appeal No. 184 of 1984 is concerned, the order passed on 27th April 1989 below Exhibit 26 is final and conclusive. In other words, it is this Honourable Court in the second appeal can consider the same, but so far as the Appellate Court at Latur is concerned, the order below Exhibit 26 has an aura of finality around it. (6) The learned Appellate Court has been unnecessarily carried away by the so-called admission of the Plaintiff-Appellant in regard to the existence of the Mosque. In the first place, there is no admission within the meaning of Indian Evidence Act. In the second place, even if it is to be indirectly deemed to be admission as so-called, then it has no direct bearing on the capacity of the Appellant as the claim of "Masjid-e-Haft Biradraan". The Plaintiff may 5 have dual capacity. One is his own right to recover the rent, as the rent (note) was not only once but twice executed by the Defendant- Respondent. The same person may have other capacities with which the law need not like any cognizance at all. The crucial question is the disability of the Respondent-Defendant from denying the title of his own lessor, after once having executed a rent note. This principle has been discussed in para 8 of the impugned Judgment, while dealing with the bar of Section 116 of the Indian Evidence Act. The learned Appellate Judge has required the fulfillment as a pre-condition to establish that the disputed shop was given in possession of the Defendant- Respondent in pursuance of the rent note. Even though the lessee might have been inducted earlier, the execution of rent note freshly puts him in the same position, so as to create bar of Section 116 of the Indian Evidence Act. This is definitely a substantial question of law. (12) The execution of the rent notes begets one more very important thing i.e. it creates a liability on the Defendant-Respondent and he cannot get away from the said liability merely of his raising a plea in the written statement that the title of the same property vested in some other person, particularly when that some other person had itself appeared before the Court for impleadment and its application was rejected. The only remedy of that third party was to have filed a separate suit if they are having any claim. But, they cannot enter into the fray like this and the attempt made by them has been rightly failed. The ultimate decree passed on 31st December 1988, now under appeal has therefore nullified the effect of order passed on 15th October 1988, below Exhibit 31 and also below Exhibit 26 dated 27th April 1988 respectively raised in paras___and para__above. " 04. One of the major grounds on which the first appellate court has disallowed the claim of the plaintiff-appellant is that the plaintiff-appellant 6 has in paragraph 1 of the plaint claimed that he owns and possesses the shop in question and prior to his assuming charge, previous occupant Shamshuddin had inducted Defendant as tenant in the suit premises and after plaintiff took charge, he requested defendant to execute rent note and accordingly, on 14.11.1974 defendant executed rent note and agreed to pay Rs. 100/= per month as rent. However, in the entire plaint, it is no where disclosed that the shop property was belonging to the mosque and that the plaintiff-appellant was Chairman of the managing committee of the mosque. In his statement on oath at Exhibit 35, the plaintiff stated at the outset that he knew that Respondent-Defendant was running a hotel known as 'Corner Hotel' at Udgir; that the portion in which the eating house is there belonged to the Mosque of Satbhai. He further deposed that the mosque was supervised and maintained by his family; that before him, his uncle Shamshuddin was supervising the mosque and he inducted the defendant in the suit shop. The plaintiff further stated that when he took charge of maintenance of the mosque, the shop was in possession of the defendant. According to him, the shop was let out to the defendant in the year 1975 and defendant executed rent note in favour of the plaintiff in 1977 7 which is at Exhibit 41. In the cross examination, it was also admitted that there was rent note of the suit premises between Shamshuddin and the defendant. It is then specifically admitted that the defendant had been in possession of the suit premises as a tenant since prior to 1970. So, the rent note dated 15.11.1977 on which the appellant-plaintiff relies, and which is proved at Exhibit 41, was in continuation of previous tenancy. 05. The defence taken by the defendant as accepted by the first appellate court is that the plaintiff has not proved his title to the disputed shop and he had no right to recover the rent. 06. Learned Advocate Shri Y.M.Khan for the appellant-plaintiff relied upon the case of S. Thangappan vs. P. Padmavathy AIR 1999 SC 3584 and more particularly on para 14 which reads : "14. This section puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the 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 8 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. Howsoever defective title of such landlord could 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 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. " 07. It is thus clear from above quoted paragraph 14 of the case cited that the tenant is debarred from denying title of his landlord from the beginning of his tenancy. In the present case, admittedly Shamshuddin, the uncle of the appellant-plaintiff, was the original landlord. It is the case of the defendant that he has been paying rent to said Shamshuddin all along and, therefore, plaintiff- appellant is not entitled to recover the rent from him. The defendant has also denied that he had executed any rent not in favour of the plaintiff. 08. In this case, another document pointed by the learned counsel for the appellant is the application (Exh.26) filed by the Wakf Officer, Latur under Section 59 of the Wakf Act in Appeal No.184 of 1984 in the District Court, stating that Masjid Haft 9 Biradran, Udgir, is the Wakf property. The suit filed by plaintiff is false and Wakf Board may be made party to the appeal as the mosque and the suit premises are the Wakf properties. After hearing plaintiff- appellant, the said application came to be dismissed on 27.4.1988. It is, therefore, clear that when the Wakf Board learnt about the suit filed by original plaintiff who is represented in this second appeal by present appellants, the Wakf Board wanted to intervene and claim rent. 09. In this case, plaintiff never amended the plaint either during pendency of the suit or even appeal before the District Court and yet deviated from the original pleading that the suit property was exclusively owned and possessed by him and now it is argued before this court that the plaintiff/appellant is the Chairman of the Managing Committee of the Mosque and as such he is entitled to recover rent. This submission is beyond the pleadings. If the property is of the mosque and if rent recovered is to be utilised for the mosque, in that case, the defendant has every right to resist the suit filed by plaintiff not in his capacity as the Chairman of the Managing Committee of the mosque, but in his 10 individual capacity claiming to be owner of the property and refuse to pay rent to the plaintiff. If the plaintiff is entitled to recover rent in his capacity as the Chairman of the Managing Committee of the Mosque and not in his individual capacity, the plaint ought to have been amended. The suit having been filed in individual capacity, in my opinion, the District Court did not commit any error in refusing to decree the suit and allowing the appeal before it. 10. In view of above, this second appeal must fail. Accordingly, Second appeal is dismissed. pnd/sa513.89 (P.R.BORKAR, J.)