1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR First Appeal No.405 of 2006 Mohd. Hussain s/o Abdul Kadar ..vs.. Hariram Gulabchand Mahajan -------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram,appearances,Court's orders Court's or Judge's orders or directions and Registrar's orders. Coram: Smt. Vasanti A. Naik, J. Dated: 11th September, 2008. Heard Shri S. V. Purohit, learned counsel for the appellant and Shri S. C. Mehadia, learned counsel for the respondent. The appellant is the original defendant. A suit was filed by the plaintiff-landlord for ejectment and possession against the defendant. According to the plaintiff, the defendant was a tenant in the suit premises and the landlord sought permission from the Rent Controller to issue quit notice to the defendant. The plaintiff issued a termination notice to the defendant on 30/4/1996 informing the defendant that his tenancy stood terminated by the mid-night of 30/6/1996 and defendant was called upon to deliver the vacant possession of the suit premises to the plaintiff. The plaintiff further pleaded that the defendant had filed civil suit which was registered as Regular Civil Suit No. 29/1996 and in that suit, the defendant had pleaded that the plaintiff was not the owner of the suit premises and he had denied the title of the plaintiff. According to the plaintiff, this act on the part of the defendant amounted to disclaimer. The plaintiff 2 informed the defendant in the notice dated 30/4/1996 that his tenancy was also forfeited, apart from the fact that it was terminated by the said notice. The plaintiff claimed that he was also entitled to the possession, in view of forfeiture of the tenancy as denial of the title of the plaintiff by the defendant, was not a bona fide denial. The plaintiff further pleaded that the defendant pleaded in the earlier litigation that the plaintiff was not the owner of the suit premises and the government was the owner thereof. The defendant denied the claim of the plaintiff and denied that the tenancy of the defendant stood terminated by the notice under Section 106 of the Transfer of Property Act. The defendant denied that the defendant, being a tenant of the premises, was not entitled to challenge the title of the plaintiff. The defendant admitted in his written statement that he had filed a civil suit challenging the title of the plaintiff. However, according to the defendant, this act of the defendant did not amount to disclaimer. The defendant denied that the plaintiff was entitled to possession also on the ground of disclaimer. In the specific pleadings in paragraph 5, the defendant reiterated that he had challenged the title of the plaintiff and the plaintiff could not seek possession from the defendant. On the aforesaid pleadings of the parties, the trial Court framed the issues and held that the tenancy of the defendant was legally terminated by the quit notice. The trial Court held that in the alternative, the notice of forfeiture was also held to be legal. The trial Court held that the denial of plaintiff's title by the defendant was not bona fide and the plaintiff was entitled for a decree of possession. The 3 judgment passed by the trial court was confirmed by the first appellate Court in an appeal filed by the defendant. Both these judgments are challenged in the instant appeal. Shri Purohit, learned counsel for the appellant submitted that both the Courts committed a serious error in holding that the tenancy of the defendant stood terminated by a quit notice and that there was forfeiture of the tenancy of the defendant. According to the counsel for the appellant, both these issues could not have been answered in favour of the plaintiff, as even if it was held that the tenancy of the defendant was forfeited, there was no question of termination of his tenancy by quit notice. According to counsel for the appellant, the relief could not have been granted by answering both the issues in favour of the plaintiff. In fact, according to the counsel for the appellant, it was necessary for the plaintiff to elect one of the pleas, either of termination of tenancy or of forfeiture of tenancy for seeking the relief of possession and since, the plaintiff had not properly elected pleas, the suit of the plaintiff was liable to be dismissed. Shri Mehadia, learned counsel for the respondent supported the judgments passed by both the Courts. It is submitted on behalf of the respondent that both the Courts concurrently held that there was forfeiture of tenancy, in view of the fact that the defendant had challenged the title of the plaintiff in the earlier suit and had also challenged the title in the reply to the notice issued by the plaintiff. According to the counsel for respondent, the challenge was not bona fide and therefore, both the Courts rightly held that there was a 4 forfeiture of the tenancy. It is then submitted on behalf of the respondent that this Court has dismissed the second appeal filed by another tenant of the adjoining property belonging to the respondent, by an order dated 26/6/2008. In that case also the other tenant of the property by name Mohd Ishaq had challenged the title of the present respondent on similar ground and had also challenged the title of the respondent in a reply to the notice issued by the respondent to Mohd. Ishaq. It is submitted on behalf of the respondent that the second appeal filed by Mohd. Ishaq, the adjoining tenant, was dismissed by this Court by order dated 26/6/2008 and it is necessary to take a view similar to one which is rendered by this Court in Second Appeal No. 78/2002. It is also submitted on behalf of the respondent that the two inconsistent alternate pleas can always be taken by the plaintiff and the submission on behalf of the appellant that the plaintiff ought to have elected one of the pleas, is liable to be rejected. I have perused the judgments passed by both the Courts in detail. I have also perused the notice issued by the plaintiff to the defendant and the reply of the defendant thereto. A copy of Regular Civil Suit No. 29/1996 is also perused. On perusal of these documents, it is clear that the denial of the title of the landlord by the tenant was not bona fide. Both the Courts have therefore, rightly held that the tenancy of the defendant stood forfeited under the provisions of Section 111(g) of the Transfer of the Property Act. However, there appears to be some force in the submissions made on behalf of the appellant that both the Courts committed an error in answering both the issues in favour of the plaintiff as, in case, the issue of forfeiture of 5 tenancy was answered in favour of the plaintiff and it was held that the tenancy of the defendant was forfeited, there was no question of holding that the defendant's tenancy was duly terminated by quit notice dated 30/4/1996. However, though this submission made on behalf of the appellant appears to have some substance, the case of the appellant could not be strengthened on these submissions alone as both the Courts have recorded a categorical finding of fact on the basis of a proper appreciation of the material evidence on record that the tenancy of the defendant stood forfeited under the provisions of Section 111 (g) of the Transfer of Property Act. Since that finding of fact is correctly recorded, it is not liable to be interfered with in this second appeal. This Court has, as rightly pointed out on behalf of the respondent, dismissed the second appeal of the adjoining tenant-Mohd Ishaq by an order dated 26/6/2006 and held that the similar suit and a similar reply filed and issued by Mohd Ishaq to the respondent- landlord had resulted into disclaimer. Lastly, the submission made on behalf of the appellant that the two aforesaid pleas could not have been taken by the plaintiff in the suit, is liable to be rejected at the threshold, in view of the settled position of law that two alternate and inconsistent pleas can be raised by the plaintiff. In fact, the permission to raise two alternate inconsistent pleas obviates the necessity of filing a subsequent litigation and the matter is decided between the parties in the same lis. In the instant case, the landlord who desired that his tenant should vacate the premises, as a precautionary measure, took both the pleas of forfeiture of the tenancy, in view of disclaimer and 6 termination of the tenancy in view of the quit notice, which was issued after obtaining the necessary permission from the Rent Controller. The question of doctrine of election does not come into play in the facts of the present case. The judgments reported in AIR 1994 SC 2151 and 2006(2) SCC 641 cannot be made applicable to the facts of the present case. In the reported decision the question of election of a remedy either under Workmen's Compensation Act or Motor Vehicles Act was in issue. In the other reported decision, the question was about the election of a remedy available under the provisions of Section 29 or Section 31 of the State Financial Corporation Act of 1951. Such is not the case here. This is a simple case where the landlord sought eviction of the tenant either on the basis of termination of tenancy by issuing a quit notice or in view of the forfeiture of tenancy under the provisions of Section 111(g) of the Transfer of Property Act. The finding recorded by both the Courts on the issue of forfeiture is just and proper. Since, no substantial question of law arises for consideration in this second appeal, the same is dismissed. No order as to costs. At this juncture, since there was a stay operating in favour of the appellant till this date, the counsel for the appellant seeks stay of this order for a period of eight weeks from today. The counsel for the respondent opposes the prayer made on behalf of the appellant. However, since, the appellant is in possession of the suit 7 property for long, it is necessary to grant prayer made on behalf of the appellant. The order is stayed for a period of eight weeks from today. JUDGE Andurkar.