Second Appeal No. 268 of 1996

3rd February, 1997

Petitioner Counsel: Shri. N.S.BHATTAD
Respondent Counsel: Shri. ANAND PARCHURE

Cases Cited:
AIR 1990 SC 636 [Para 8]
AIR 1988 SC 1413 [Para 8]

JUDGMENT

JUDGMENT :- Admit. Heard finally with the consent of the parties.

1. The question raised in this second appeal is as to whether the interpleader suit filed by the original plaintiff was tenable and further whether in that suit, the plaintiff could challenge the title of his original landlord and derivative title of the respondent No.2 Bhopalsingh Khatod.

2. A suit came to be filed by the plaintiff Mangal Bhikaji Nagpase ( appellant herein) under section 58 ( Section 88 - Ed.) and Order 35 of the Code of Civil procedure, in respect of plot No.127/3, 129/2 and 129/4, Sheet No.15, Block No.40, Nazul Ward, Bhanapeth, Chandrapur. In that suit, original defendant No.2 Bhopalsingh Khatod (respondent No.2 herein) filed two applications, being Exhibit 20 and Exhibit 28, and the plaintiff had filed an application for amendment of the plaint, vide Exhibit 32. The trial Court held on the applications made by respondent No.2 that there was no cause of action in favour of the appellant/plaintiff to file the suit and the suit was untenable and barred by law as the filing of the suit amounted to the denial of title of the landlord by the plaintiff. The plaintiff's application (Exhibit 32) for the amendment was also rejected. In the result, the trial Court dismissed the suit. The lower appellate Court dismissed the appeal only with the modification that it did not dismiss the suit and instead ordered that the plaint was liable to be rejected and was rejected under the provisions of Order 7, Rule 11(a) & (d) of the Code of Civil Procedure.

3. The plaintiff had contended that he was the tenant in respect of the property described above and that the property was originally owned by one Nagama, and after har death, came to be recorded in the name of one Munnabai as the holder. His further case was that the said property then came in the hands of one Moreshwar Kisanlal Khatri who had claimed that the said Munnabai was a dancing girl by profession and she had adopted one Chinna Sani, and the said Chinna Sani was the keep of Moreshwar's father. The plaintiff then claimed that it was Moreshwar who had inducted him as the tenant and the defendant No.2 Bhopalsingh had purchased the property from Moreshwar under a sale-deed. However, the plaintiff claimed that Moreshwar could not have a saleable interest though he had inducted the plaintiff as a tenant. He, therefore, contended that Moreshwar could not pass a valid title to Bhopalsingh as he himself could not have inherited the property, since Munnabai could not create an adoption and could not have adopted Chinna Sani was the keep of Moreshwar's father. At any rate, if the property passed to Chinna Sani, it could not have been inherited by Moreshwar and the property was liable to be escheated under the provisions of the Hindu Law. It was also pointed out that there was a Revenue Case under Section 34 of the Maharashtra land Revenue Code commenced before the Sub Divisional Office, Chandrapur, vide Revenue Case No.2/109/79-80 and, therefore, there were two claimants claiming against each other, in respect of the ownership of the suit property and as such on that ground, an interpleader suit was filed.

4. Original defendant No.2-Bhopalsingh opposed the suit and claimed that the plaintiff could not have challenged the title of Moreshwar who had inducted him as a tenant as he was estopped from doing so, in law. He also filed the earlier mentioned applications Exhibits 20 and 28, and the trial Court disposed of the suit as well as these two applications by a common order, and dismissed the suit. The appellate Court has concurred with the order passed by the trial Court giving rise to this second appeal.

5. Shri N.S. Bhattad, learned Counsel appearing on behalf of the appellant/original plaintiff-tenant, very strenuously contended that though it is a trite law that the tenant cannot challenge a title of his landlord, it was bound to be seen that Bhopalsingh (respondent No.2) was not his landlord at all. According to Shri Bhattad, it could be shown by the tenant that the respondent No.2 had not derived a proper title or that the transfer in favour of respondent No.2 was not a legal and valid transfer, and as such the respondent No.2 could not claim any rights. Shri Bhattad further contended that in order to show that there was no proper transfer, it could incidentally be shown that the landlord himself had no saleable title and, therefore, the respondent No.2 did not acquire a derivative title. Secondly, he has argued that if this position is obtained, then the plaintiff could always claim an injunction, as he did, by filing an amendment application (Exhibit 32), against Bhopalsingh, as in that case, Bhopalsingh could have no right to interfere with the possession of the property which was admittedly possessed by the plaintiff. According to him, the Courts below have erred in holding that Exhibit 32 changed the nature of the suit and the amendments were not permissible.

6. Shri Anand Parchure, learned Counsel appearing on behalf of respondent No.2, has supported the judgments of the Courts below and has averred that the plaintiff has rightly not been allowed to challenge the title of his own landlord. Shri Parchure pointed out that it was not merely a derivative title that was being challenged by the plaintiff. It was pointed out that the plaintiff was challenging the transfer solely on the ground that Moreshwar had no title. It was not on the incidental question that the plaintiff was challenging the title of respondent No.2. Shri Parchure also averred that an interpleader suit was not maintainable at all.

7. It will have, therefore, to be seen as to whether, firstly, the suit as filed was maintainable. It will be seen that in the present suit, the plaintiff is not an outsider. In an interpleader suit, the contest is between the defendants for title and the plaintiff has got nothing to do with that contest. In this respect, Rule 1(a) or Order 35 of the Code of Civil Procedure mandatorily requires the plaintiff to state that he claims no interest in the subject matter in dispute other than for charges or costs. Now, if we were to see the plaint in the present matter, such statement is very conspicuously absent and, indeed, even if there is any trace of such a statement by stretching the averments, the subsequent application made vide Exhibit 32 gives a complete goby. In that application, the plaintiff displays a marked interest in the suit property. This position is obtained from Rule 4 also where, in the very first hearing, the Court can grant a declaration discharging the plaintiff from all the liability of the defendants and ask the defendants to interplead, by framing necessary issue/s. Where, therefore, the plaintiff claims any interest in the concerned property, the interpleader suit has to necessarily fail. Section 88 of the Code of Civil Procedure is also clear in this behalf. There has to be a contest between two or more persons in respect of the property. While the plaintiff can claim no interest in the property other than for charges or costs, and that there should be a readiness on the part of the plaintiff to pay or deliver the said property to the original claimant. In short, the language of the section itself suggests that a plaintiff can file an interpleader suit firstly, for obtaining a decision as to the person to whom the payment or delivery should be made and, secondly, for obtaining an indeminity for himself. A look at the plaint, and more particularly the amendment application made in instant case, completely takes the suit out of the four corners drawn by section 88 and order 35 of the Code of Civil Procedure. The trial Court as well as the lower appellate Court were, therefore, right in holding that the interpleader suit filed at the instant of the plaintiff, wherein the plaintiff had clearly shown his own interest, was not tenable and that finding must be confirmed.

8. Shri Bhattad thereafter argued that though it was an admitted position that the plaintiff was inducted by Moreshwar Khatri in the year 1973-74, the respondent No.2 was claiming from the said Moreshwar Khatri on the basis of the sale-deed and, therefore, it could always be shown that respondent No.2 did not derive a full title from Moreshwar Khatri as Moreshwar Khatri did not have the same to pass it. For this purpose, the learned Counsel heavily relied upon a ruling reported in Subhash Chandra v. Mohd. Sherif ( AIR 1990 Supreme Court 636) and particularly the observations made in para-8, which are as under :-

"The rule is not confirmed in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in. So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non-existent in the eye of law. By way of an illustration one may refer to a case where the original landlord had the right of possession and was, therefore, entitled to induct a tenant in the property but did not have any power of disposition. The tenant in such a case can attack the derivative title of the transferee-plaintiff but not on the ground that the transferor-landlord who had initially inducted him in possession did not have the right to do so. Further since the impediment in the way of a tenant to challenge the right of the landlord is confined to the state when the tenancy commenced, he is not forbidden to plead that subsequently the landlord lost this right."

Shri Bhattad very heavily relied on these observations and tried to suggest that what was being challenged by the plaintiff herein could not come under the protective umbrella of section 116 of the Evidence Act, as it was only a derivative title of respondent No.2 that was being challenged. One fails to follow as to how the observations help the plaintiff. In fact, the observations are very clear to suggest that even while challenging the derivative title, it is not open to the tenant to plead or contend that the original landlord did not have a title. The position which is obtained is that a tenant cannot contend that the person who inducted him had no title though he may be able to say that the title of his landlord has not legally been derived by the transferee of the landlord. This is not a case where it is pleaded by the plaintiff that the original landlord Moreshwar Khatri had only the right of possession, or that there is no legal and proper transfer and that the sale-deed in favour of respondent No.2 is in any way defective. The last but one sentence in the above observations, to the effect "The tenant in such a case can attack the derivative title of the transferee-plaintiff but not on the ground that the transferor-landlord who had initially inducted him in possession did not have the right to do so," would clarify the situation in every possible manner. It cannot, therefore, be said that the plaintiff in this case could have challenged the derivative title of respondent No.2 on the specious ground that the original landlord Moreshwar Khatri had no saleable interest. That apart, even in the earlier case reported in Tej Bhan Madan .V. II Additional District Judge (AIR 1988 Supreme Court 1413), the identical position of law is obtained. In that view of the matter, it cannot be said that the Courts below were in error in non-suiting the plaintiff. The judgments are correct. There is no merit in this second appeal and it is liable to be dismissed.

9. In the result, the Second Appeal is dismissed with costs.

Appeal dismissed.