Case: Bismillah Be (Dead) by L.Rs Vs. Majeed Shah

decreeing the appellants suit against the respondent.23. In reply, learned counsel for the respondent (defendant) supported the impugned order and prayed for dismissal of the appeal.24. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submissions of the learned counsel for the appellant.25. Law relating to derivative title of the landlord (Lessor) and challenge, if made, to such title by the tenant (Lessee) during subsistence of tenancy in relation to demised property is fairly well settled. Though by virtue of Section 116 of the Evidence Act, 1872, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/lessee is entitled to challenge the derivative title of an Assignee/Vendee of the original landlord (Lessor) of the demised property in an action brought by the Assignee/Vendee against the tenant for his eviction from the demised property under the Rent laws. This right of a tenant is, however, subject to one caveat that the tenant/lessee has not attorned to the Assignee/Vendee. In other words, if the tenant/lessee pays rent to the Assignee/Vendee of the tenanted property then it results in creation of an attornment between the parties which, in turn, deprives the tenant/lessee to challenge the derivative title of an Assignee/Vendee in the proceedings.26. However, once the Assignee/Vendee proves his title to the demised property, the original tenancy devolves on the Assignee/Vendee and tenant/lessee by operation of law on the same terms and conditions on which it was entered into with the original landlord/lessor and continues till either modified by the parties or is determined by the landlord in accordance with law. It enables the Assignee/Vendee to acquire the status of a "new landlord" in place of the original landlord of the demised premises qua tenant/lessee. (See Law of Evidence by Sarkar, 16th Edition, pages 2106-2108).27. Keeping the aforementioned principle of law in mind and applying the same to the facts of the case, we are of the considered opinion that the appellant (plaintiff) has proved his title to the suit house so also the relationship of landlord and tenant with the respondent in relation to suit house. This we say for more than one reason stated infra.28. First, it is an admitted fact that Rai Bahadur Motiram Mathuradas was the original owner of the suit house, which was a part of Moti Bada. Second, it is also an admitted fact that the respondent was inducted as a tenant by Rai Bahadur Motiram Mathuradas in the suit house. Third, the respondent, in his reply, has admitted the aforesaid two facts in para 4 of his reply to the appellants legal notice and in para 13 of his written statement. Fourth, the suit house was sold after obtaining permission from Income Tax Department to Mr. Kriplani by registered deed of sale dated 16.09.1974 and Mr. Kriplani, in turn, sold to six persons, which included the appellant, by another registered deed of sale dated 16.09.1974. Fifth, these six persons (co-owners) then by registered deed of partition dated 14.03.1984 effected partition inter se and the suit house fell to the share of the appellant herein. Sixth, all these five facts enumerated herein were duly proved by the appellant by first pleading in the plaint and then by filing documentary evidence. Seventh, the appellant served quit notice to the respondent setting out therein all these facts. Eighth, the respondent failed to adduce any evidence in rebuttal to disprove the appellants case except bald denial of the appellants title over the suit house and lastly, the respondent having admitted the ownership of his original landlord and his tenancy with the original landlord, he became the appellants tenant by operation of law on the appellants proving his title over the suit house.29. In the light of aforementioned eight reasons, we find no difficulty in holding that the appellant proved her title over the suit house and thus she became a landlady of the suit house. In consequence thereof, the respondent became her tenant by operation of law on the same terms as agreed upon with the original landlord. The appellant then rightly determined the tenancy by serving quit notice to the respondent.30. In the light of foregoing discussion, we answer issue nos. 1, 2 and 3 framed by the Trial Court in favour of the appellant (plaintiff) and against the respondent (defendant) and accordingly hold that the appellant (plaintiff) is the owner/landlord of the suit house whereas the respondent(defendant) is the appellants tenant and there exists relationship of landlord and tenant between the appellant and the respondent in relation to the suit house; second, the respondent (defendant) is the tenant at the rate of Rs. 80/- per month and third, the appellant(plaintiff) has served proper quit notice on the respondent (defendant) demanding balanced rent.31. In view of what is held above, it is not necessary to remand the case to the High Court for deciding the second appeal afresh on merits which, in our view, did involve the substantial questions of law within the meaning of Section 100 of the Code of Civil Procedure, 1908 and deserved its admission for final hearing.32. The cursory disposal of the second appeal in limine by the High Court without mentioning the facts, the submissions of the appellant, the points arising in these appeals and legal principles applicable to the case can not be countenanced.33. Though the Trial Court has also recorded findings on other issues against the appellant but we find that the findings on other issues were influenced by the findings given on the first three issues.34. In our view, in the light of the reversal of findings of three courts by this Court, it would be just and proper that the case is remanded to the Trial Court (Civil Judge Class I), Jabalpur for deciding the suit afresh on merits on issues nos. 4 to 11 which relate to grounds for seeking eviction under Section 12 of the Act.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]27. Keeping the aforementioned principle of law in mind and applying the same to the facts of the case, we are of the considered opinion that the appellant (plaintiff) has proved his title to the suit house so also the relationship of landlord and tenant with the respondent in relation to suit house. This we say for more than one reason stated infra.28. First, it is an admitted fact that Rai Bahadur Motiram Mathuradas was the original owner of the suit house, which was a part of Moti Bada. Second, it is also an admitted fact that the respondent was inducted as a tenant by Rai Bahadur Motiram Mathuradas in the suit house. Third, the respondent, in his reply, has admitted the aforesaid two facts in para 4 of his reply to the appellants legal notice and in para 13 of his written statement. Fourth, the suit house was sold after obtaining permission from Income Tax Department to Mr. Kriplani by registered deed of sale dated 16.09.1974 and Mr. Kriplani, in turn, sold to six persons, which included the appellant, by another registered deed of sale dated 16.09.1974. Fifth, these six persons (co-owners) then by registered deed of partition dated 14.03.1984 effected partition inter se and the suit house fell to the share of the appellant herein. Sixth, all these five facts enumerated herein were duly proved by the appellant by first pleading in the plaint and then by filing documentary evidence. Seventh, the appellant served quit notice to the respondent setting out therein all these facts. Eighth, the respondent failed to adduce any evidence in rebuttal to disprove the appellants case except bald denial of the appellants title over the suit house and lastly, the respondent having admitted the ownership of his original landlord and his tenancy with the original landlord, he became the appellants tenant by operation of law on the appellants proving his title over the suit house.29. In the light of aforementioned eight reasons, we find no difficulty in holding that the appellant proved her title over the suit house and thus she became a landlady of the suit house. In consequence thereof, the respondent became her tenant by operation of law on the same terms as agreed upon with the original landlord. The appellant then rightly determined the tenancy by serving quit notice to the respondent.30. In the light of foregoing discussion, we answer issue nos. 1, 2 and 3 framed by the Trial Court in favour of the appellant (plaintiff) and against the respondent (defendant) and accordingly hold that the appellant (plaintiff) is the owner/landlord of the suit house whereas the respondent(defendant) is the appellants tenant and there exists relationship of landlord and tenant between the appellant and the respondent in relation to the suit house; second, the respondent (defendant) is the tenant at the rate of Rs. 80/- per month and third, the appellant(plaintiff) has served proper quit notice on the respondent (defendant) demanding balanced rent.The cursory disposal of the second appeal in limine by the High Court without mentioning the facts, the submissions of the appellant, the points arising in these appeals and legal principles applicable to the case can not be countenanced.33. Though the Trial Court has also recorded findings on other issues against the appellant but we find that the findings on other issues were influenced by the findings given on the first three issues.34. In our view, in the light of the reversal of findings of three courts by this Court, it would be just and proper that the case is remanded to the Trial Court (Civil Judge Class I), Jabalpur for deciding the suit afresh on merits on issues nos. 4 to 11 which relate to grounds for seeking eviction under Section 12 of the Act.