2014(6) ALL MR 528
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A.B. CHAUDHARI, J.
Lahu s/o. Namdeo Ingale Vs. Kailash Matasaran Gupta & Ors.
Second Appeal No.357 of 1999
24th June, 2014
Petitioner Counsel: Mr. M.G. BHANGDE, Mr. V.V. BHANGDE
Respondent Counsel: Mr. J.T. GILDA, Mr. A.J. GILDA
(A) Evidence Act (1872), S.116 - Transfer of Property Act (1882), S.111(g) - Tenant's estoppel - Applicability of - Suit for eviction on ground of forfeiture of tenancy - Plea of tenant that he could not be held liable for eviction on ground of forfeiture of tenancy - Tenant lost suit in which he claimed declaration that landlady was not owner - He also objected rent control application on ground that landlady not being owner, application was not maintainable - Said objection was upheld by Rent Controller - On one hand tenant took specific objection about maintainability of application before Rent Controller on ground that she was not landlady - On other hand claimed that he could not be held liable for eviction on ground of forfeiture of tenancy - Tenant blew hot and cold - Tenant's act of denial of derivative title of landlady was malafide and false and tenant's estoppel will apply. (Paras 7, 8, 12)
(B) Transfer of Property Act (1882), S.111(g) - Determination of lease - It may not be made in case of denial of title which is bona fide or innocent. (Para 11)
(C) Civil P.C. (1908), S.100 - Second appeal - Plea of jurisdiction of court - It was raised first time in second appeal - Such plea cannot be raised particularly in light of number of years that have passed and since question was never raised in any of courts below. (Para 13)
M/s Hajee K.Assainar & Co. Vs. Chacko Joseph, AIR 1984 Kerala 113 [Para 4]
Madanlal Vs. Manakchand, AIR 1971 Rajasthan 55 [Para 4]
D. Satyanarayan Vs. P. Jagdish, (1987) 4 SCC 424 [Para 4]
Subhash Chandra Vs. Mohammad Sharif and others, (1990) 1 SCC 252 [Para 4]
Sheela & others Vs. Firm Pralhad Rai Prem Prakash, (2002) 3 SCC 375 [Para 4,10]
A.V.G.P. Chettiar & Sons & others Vs. T. Palanisamy Gounder, (2002) 5 SCC 337 [Para 4]
Teegla Satyanarayan Vs. G.S.Bhagwan, 1994 Supp (3) SCC 741 [Para 4]
Ansal Properties & Industries Ltd. Vs. State of Haryana and others, (2009) 3 SCC 553 [Para 4]
Devasahayam (Dead) By LRs Vs. P. Savithramma and others, (2005) 7 SCC 653 [Para 4]
Poonamchand Bansidhar Vs. Ramprasad Sarda and another, AIR 1969 M P 44 [Para 4]
State of Rajasthan Vs. Rao Raja Kalyan Singh, AIR 1971 SC 2018 [Para 4]
Ismailbhai Gulam Vs. Addl.Collector, 2006(3) ALL MR 231 =2006(4) Mh.L.J. 695 [Para 5]
Bansraj Laltaprasad Vs. Stanley Parker Jones, 2006(3) ALL MR 224 (S.C.)=2006 (2) Mh.LJ 465 [Para 5]
Haribhau Rewasekar Vs. Swami Narayan, 2010(6) ALL MR 168 =2010 (5) Mh.L.J. 878 [Para 5]
S.J. Dryers & Cleaners Vs. Hiralal, 2006(6) Mh.L.J. 840 [Para 5]
J J Lal Pvt.Ltd.Vs. M R Murali & others, AIR 2002 (SC) 1061 [Para 5]
Karam Kapahi Vs. M/s Lal Chand, 2010 ALL SCR 1305 =AIR 2010 (SC) 2077 [Para 5]
Tej Bhan Madan Vs. II Addl. Dist. Judge, AIR 1988 (SC) 1413 [Para 5]
Payal Vision Vs.Radhika Choudhary, 2012 ALL SCR 2793=2012 (11) SCC 405 [Para 5]
Amar Singh Vs. Hoshiar Singh, AIR 1952 (Allahabad) 141 [Para 5]
JUDGMENT :- Being aggrieved by the judgment and decree dated 22.07.1999 passed by learned Additional District Judge, Amravati in Regular Civil Appeal No.294/1994 by which the learned lower Appellate Court reversed the judgment and decree passed by the trial Court dismissing the Suit of the respondent/plaintiff and instead decreed the Suit of the respondent/plaintiff for eviction of the appellant/ defendant from the shop premises, the defendant had filed the present Appeal in this Court.
2. The respondent/plaintiffSau. Rupabai filed the Suit for possession and for recovery of damages from the appellant/defendant vide Special Civil Suit No.122/1991 for shop in Municipal House No.130/2, Ward No.43 on Nazul Plot No. 4/3; Sheet No. 68B within the local limits of Amravati Municipal Corporation, as owner of the shop premises, having become the owner under a sale deed from the former owner Matasaran executed on 29th December, 1988. Matasaran was the original landlord/ owner and the defendantLahu was that the original tenant. Matasaran leased out the suit shop by lease agreement dated 23.1.1984 which was exhibited as Exh. 68 on rent of Rs. 200/- per month. It is alleged that Matasaran had agreed not to evict the tenantLahu at any time and after his demise, Gaurishankar would be his heir who, also would not evict Lahu. Upon execution of sale deed in favour of Rupabai by Matasaran on 29.12.1988, he had intimated Lahu and asked him to pay rent in future to Rupabai. Rupabai then filed an Application before the Rent Controller under C.P. & Berar Rent Control Order, 1949 for grant of permission to issue quit notice to Lahu. At the same time, Lahu filed R.C.S. No.1041/1990 against Rupabai and Gaurishankar asking for the relief that Rupabai was not the owner of the suit property and the sale deed in her favour dated 29.12.88 was a nominal and bogus in order to evict him from the suit shop. The said suit filed by Lahu was dismissed and the decree of dismissal of his Suit became final. In the Rent Control proceedings, Lahu specifically took a stand that plaintiffRupabai was not the owner of the suit shop and, therefore, the proceedings before the Rent Controller were not maintainable. But according to him, Matasaran was the owner during his lifetime and thereafter Gaurishankar was to succeed as his legal heir to the suit shop. He, thus, set up title in Matasaran and Gaurishankar. The Rent Controller having found that he was unable to decide the title of Rupabai in the wake of specific denial about she being the landlady and Lahu being the tenant, dismissed the proceedings filed by Rupabai against which Rupabai had filed Appeal before the Appellate Authority which ultimately was withdrawn on 4.4.1995. Having come to know about the stand taken by Lahu, the tenant in her Rent Control proceedings which were filed by her on 4.6.1990, she filed the Suit in question namely S.C.S. No. 122/1991 for possession on the ground that there was a forfeiture contemplated under Section 111(g) of the Transfer of Property Act ( in short " the T.P. Act") so also estoppel under Section 116 of the Evidence Act. The learned trial Judge framed as many as three issues in the Suit, inter alia, whether Rupabai, the plaintiff proved that Lahu/defendant had forfeited tenancy and set up the title in third person, namely, Gaurishankar and the trial Judge answered the said issue in the negative i.e. against the plaintiff and consequently dismissed the Suit for eviction. Rupabai filed Regular Civil Appeal No.294/1994 under Section 96 of the Civil Procedure Code before the District Judge. The learned District Judge framed two points for determination :-
(i) Whether the defendant/tenant has proved that denial of title of Rupabai to the tenanted premises has been bona fide?
(ii) If the Point No.1 is answered in negative, whether the plaintiff is entitled to the eviction of the tenant and the possession of the suit premises?
The learned Addl. District Judge, Amravati, answered the Point No.1 in the negative and Point No.2 in the affirmative and ultimately decreed the Suit by reversing the decree of the dismissal of the Suit passed by the trial Court. Hence this Second Appeal.
(i) Whether in the facts and circumstances, the manner of denial of title, in the absence of a notice of transfer amounted to forfeiture being available as a ground for eviction of the tenant by the transferee landlord?
(ii) What is the nature of lease, in the circumstances, as put up on record, and whether the same was capable of being validly terminated as has been done in the circumstances?
The first question does not arise since notice of transfer was given. The second question is being reframed.
Thereafter, learned counsel for the appellant filed Civil Application No. 538/2013 for permission to raise additional questions of law. The said Application, after hearing the parties, is allowed and the same was disposed of. I have perused the three questions framed by the learned counsel for the appellant. I would reframe the substantial questions of law upon consideration of all the aforesaid substantial questions already framed, at the appropriate stage.
4. In support of the Appeal and assailing the impugned judgment and decree passed by the lower Appellate Court, Mr. M. G. Bhangde, learned senior counsel with Mr V.V. Bhangde, learned counsel for the appellant made the following submissions:
(i) The lower Appellate Court committed errors and errors on facts as well as in law, in that the payment of rent after having been informed or after having gathered the knowledge about the plaintiffRupabai claiming to be the owner, was right from the first occasion made under protest and, therefore, by no stretch of imagination it could be said that the tenantLahu had indirectly or directly impliedly or expressly accepted Rupabai as his landlady and, therefore, the question of considering the payment of rent as a circumstance against the tenant could not arise.
(ii) The dismissal of the RCS No.1041/1990 filed by tenant Lahu for declaration and injunction that Gaurishankar be declared as landlord and Rupabai was not the owner of said suit premises, cannot come in the way of the appellant/tenantLahu or the said dismissal of the suit cannot be utilised against his interest qua the issue regarding forfeiture of tenancy within the meaning of Section 111(g) of the T.P. Act. The lower Appellate Court, however, was much impressed with the said fact of dismissal of suit and instead of finding out whether the ingredients of Section 111(g) of the T.P. Act were really satisfied or not, it went on to decree the suit.
(iii) The appellant/tenant was very much entitled to put to challenge the title derived by Rupabai from Matasaran under the sale deed dated 29th December, 1988 since the defendantLahu was inducted by Matasaran as a tenant with a promise in writing in the lease document that neither he nor his son Gaurishankar who would succeed to the suit shop estate, would ever evict him from the suit premises as a tenant. The tenant was bona fidely entitled to challenge the title of Rupa in the wake of the said admitted facts.
(iv) The lower Appellate Court committed an error in holding that Lahu /tenant was not entitled to challenge the title of Rupabai on the principles of Section 116 of the Evidence Act which, in the submission of Mr. Bhangde, has no application in the instant case.
(v) The concept of forfeiture contemplated by Section 111 (g) of the T.P. Act will have to be read in the context of the protection available or not available under various rent control laws with reference to the provisions of forfeiture and cannot be read dehors the same particularly in relation to the various decisions of the Hon'ble Supreme Court cited during the course of arguments before this Court. According to Mr. Bhangde, the concept of forfeiture of tenancy cannot be hastily pressed into service without looking into the protection under the Rent Control Acts, as discussed in various judgments of the Hon'ble Supreme Court.
(vi) The lower Appellate Court committed an error in holding Exh. 68/lease-deed as not admissible in evidence on the ground that it was not a registered document. Even assuming that the document was not registered, the said document could be read for collateral purposes and at any rate, it was exhibited as Exh. 68 during the trial.
(vii) Admittedly, there was no acceptance of tenancy by tenantLahu and, on the contrary, the tenant denied the ownership of Rupabai but stated that sale deed in her favour was executed with deliberate intention to evict the tenant. The judgment reported in AIR 1984 Kerala Page 113: M/s Hajee K.Assainar & Co. vs. Chacko Joseph, relied upon by the lower Appellate Court has no application in the facts of the present case, but has still wrongly been applied by the lower Appellate Court.
(viii) The concept of forfeiture of tenancy will have no application in cases where the title is a derivative title and particularly in the present case when there was nothing to show that the defendant/tenant Lahu had at all accepted her as owner or attorned the tenancy.
(ix) The Suit filed before the Civil Court was not maintainable and since the issue about the jurisdiction of the Court goes to the root of the matter, this Court can very well consider the said issue particularly when there is a foundation in the pleadings so also in the note appended in the memo of Appeal that was filed by the respondent/landlord. The concept of Section 116 of the Evidence Act is not to be stretched in the case of the nature at hand and lower Appellate Court fell in error in applying the doctrine of estoppel under Section 116 of the Evidence Act, against the tenant.
Finally, the learned counsel for the appellant prayed for reversal of the decree passed by the lower Appellate Court.
Mr. Bhangde, learned senior counsel cited the following decisions:-
1.M/s Hajee K.Assainar & Co. vs. Chacko Joseph: AIR 1984 Kerala 113.
2. Madanlal v. Manakchand : AIR 1971 Rajasthan 55;
3. D.Satyanarayan v. P. Jagdish : ( 1987) 4 SCC 424
4. Subhash Chandra vs. Mohammad Sharif and others : (1990) 1 SCC 252.
5. Sheela & others v. Firm Pralhad Rai Prem Prakash : (2002) 3 SCC 375.
6. A.V.G.P. Chettiar & Sons & others vs. T. Palanisamy Gounder: (2002) 5 SCC 337.
7. Teegla Satyanarayan vs. G.S.Bhagwan : 1994 Supp (3) SCC 741.
8. Ansal Properties & Industries Ltd. vs. State of Haryana and others: (2009) 3 SCC 553.
9. Devasahayam (Dead) By LRs vs. P. Savithramma and others : (2005) 7 SCC 653
10. Poonamchand Bansidhar vs. Ramprasad Sarda and another: AIR 1969 M P 44.
11. State of Rajasthan vs. Rao Raja Kalyan Singh : AIR 1971 SC 2018.
(i) The findings recorded by the Civil Court in the suit earlier filed by the appellant/tenantLahu namely RCS No. 1041/1990 dismissing the Suit of the appellant/tenant for declaration that Gaurishankar was the owner and not Rupabai and he was tenant of Gaurishankar after the death of Matasaran, cannot be brushed aside since it must come in the way of of the appellant /tenant having made an endeavour to obtain any such declaration from the Civil Court and particularly when the said decree of dismissal of his suit having become final and conclusive between the parties. According to Mr. Gilda, therefore, the finality contrary to the contention raised by tenantLahu will have to be pressed into service while adjudicating the rights of the parties in the present litigation.
(ii) When the respondentRupabai went to Rent Controller seeking eviction of defendant/tenant Lahu, a specific contention was taken by Lahu that she was not the real owner of the suit shop property and was not entitled to maintain the proceedings before the Rent Controller as she was not the landlord/landlady. The said specific contention raised by him was accepted by the Rent Controller who dismissed her Application. The respondent/landlady, therefore, filed the suit against the tenant for forfeiture of tenancy where the stand was taken that denial of title by Lahu .of the ownership of Rupabai did not amount to forfeiture of tenancy. This is clearly covered by the doctrine of estoppel contemplated by Section 115 and/or Section 116 of the Evidence Act. Mr.Gilda, therefore, urged that the appellant/tenant cannot allowed to blow hot and cold and thus cannot be allowed to deprive the landlord of the remedy before the competent Court.
(iii) Mr.Gilda, then, argued citing the decision in the case of AIR 1953 Allahabad 979 : (paragraphs 16 and 17) that the concept of forfeiture of tenancy contemplated by Section 111(g) of the T.P. Act is clearly applicable as the tenant Lahu set up the title in third person namely Gaurishankar, fully knowing that it was Rupabai who became the owner of the suit property by virtue of the sale deed and in addition having clearly failed in the suit filed by him for declarations accordingly in his Suit RCS No.1041/1990. Continuing his submissions Mr Gilda learned counsel for the respondents argued that the lower Appellate Court correctly found that the plea set up by the tenant clearly amounted to forfeiture of tenancy and the said plea was not at all bona fide and, on the contrary, affect the interests of the landlord and, therefore, the tenancy was forfeited. Renouncing of character of a tenant as against the plaintiffRupabai by tenant Lahu even if her title is derivative title, still amounted to forfeiture of tenancy for want of bona fides.
(iv) The plea about want of jurisdiction of the Civil Court raised for the first time before this Court based on the Division Bench judgment of the M.P. High Court is also misconceived. According to Mr Gilda, the said Division Bench decision of the M.P. High Court was later on overruled by the full Bench of the same High Court. At any rate, according to him, the said point regarding jurisdiction of the Court was never raised or opposed anywhere in the Courts below and the landlord who has not been successful in getting her shop premises, would be seriously prejudiced if such a plea allowed for the first time in the second Appellate jurisdiction. According to Mr. Gilda, no substantial questions of law, much less any question of law arise and, therefore, the Appeal deserves to be dismissed.
Mr. Gilda, cited the following decisions:
1. 2006(4) Mh.L.J. 695 : [2006(3) ALL MR 231] : Ismailbhai Gulam vs. Addl.Collector
2. 2006 (2) Mh.LJ 465 : [2006(3) ALL MR 224 (S.C.)] : Bansraj Laltaprasad v. Stanley Parker Jones
3. 2010 (5) Mh.L.J. 878 : [2010(6) ALL MR 168] : Haribhau Rewasekar v. Swami Narayan
4. 2006(6) Mh.L.J. 840 : S.J. Dryers & Cleaners vs. Hiralal
5. AIR 2002 (SC) 1061 : J J Lal Pvt.Ltd.v. M R Murali & others
6. AIR 2010 (SC) 2077 : [2010 ALL SCR 1305] : Karam Kapahi vs. M/s Lal Chand
7. AIR 1988 (SC) 1413 : Tej Bhan Madan v. II Addl. Dist. Judge
8. 2012 (11) SCC 405 : [2012 ALL SCR 2793] :Payal Vision vs.Radhika Choudhary
9. AIR 1952 (Allahabad) 141: Amar Singh v.Hoshiar Singh
6. Upon hearing the learned counsel for the rival parties at length and upon consideration of the entire record, the impugned judgments and various decisions cited before me and in the facts of the present case, I frame the following substantial questions of law :-
1)Whether the denial of title by the appellanttenant of the landlady who held derivative title was bona fide? ..No. It was malafide & false.
2) Whether bereft of or want of any bona fides for denying title of the landlady, the rule of estoppel embodied u/s 116 of the Evidence Act would apply so as to attract the vice of forfeiture of tenancy within the meaning of Section 11(g) of the Transfer of Property Act? ..Yes.
3) Whether if not u/s 116 of the Evidence Act which specifically provides for 'estoppel of tenant'; on the strength of general rule of estoppel couched in Sec.115 of the Evidence Act, the appellanttenant forfeited the tenancy u/s 111(g) of the Transfer of Property Act, and was estopped by his conduct in defending the suit on the ground that he could deny the derivative title of the landlady? .. Yes. He is estopped by conduct u/s 115 of the Evidence Act.
4) Whether the issue of jurisdiction of the Civil Court can be raised for the first time by the appellant in the present Second Appeal; the said question having not been framed/ proposed by the appellant in any of the Courts below? ..No
5) What order ? ..As per order
Matasaran was the original owner of the suit shop who executed the lease agreement dated 23.1.1984 (Exh. 68) leasing the shop to the appellant for a period from 23.01.1984 till 22.01.1989. Exh. 68 was not registered and was, therefore, rightly held to be inadmissible in evidence by the lower Appellate Court. On 29.12.1988 (Exh. 16) Matasaran executed a sale deed of the suit shop in favour of his daughterinlaw Smt.Rupabai and by notice dated 5.6.1989 (Exh. 63), Matasaran informed the appellant about the fact of transfer of property to Rupabai and asked him to pay the rent to her. Accordingly, the appellant by Exh. 64 dated 5.7.1989 sent a notice to Rupabai that he would pay rent to her under protest after the expiry period of lease of five years on 22.1.1989. On 4.6.1990 Rupabai filed an Application before the Rent Controller, Amravati for grant of permission to determine the tenancy. The appellant appeared before the Rent Controller and filed his written statement and stated that the sale-deed in favour of Rupabai was nominal and fraudulent created for the purpose of evicting him from the suit shop and it was Matasaran and thereafter Gaurishankar, his son, who were the owners of the suit property but certainly not Rupabai Gupta. Not only that, he filed a suit being R.C.S. No. 1041/ 1990 against her for declaration that Gaurishankar, the son of Matasaran was the landlord in view of the terms of the leasedeed and that it be declared that Rupabai was not the landlord or the owner of the suit shop. The proceedings filed by Rupabai before the Rent Controller, Amravati were taken up by the Rent Controller and he dismissed the same principally on the ground that the appellant had objected to the title of the landlady and had also filed the Suit accordingly in the competent Civil Court and, thus, her ownership itself being under challenge, rent control application was maintainable. Having become aware about the hostile stand taken by the appellant about her ownership, she issued a notice to the appellant dated 26.04.1998 that the appellant had forfeited tenancy right by denying her title and setting up ownership in somebody else. Thereafter on 14.6.1991 Rupabai had filed the instant Suit namely SCS No.122/1991 in the Court of learned Civil Judge Senior Division Amravati for eviction of the appellant, inter alia, on the ground that he had forfeited the tenancy within the meaning of Section 111 (g) of the T.P. Act. The appellant appeared and filed the written statement. He alleged that saledeed was sham and nominal so also fraudulent and the Suit was liable to be dismissed and was not maintainable on the ground of forfeiture of tenancy. The learned trial Judge dismissed the Suit filed by Rupabai on the ground that there was no forfeiture of tenancy as she was having derivative title while the lower Appellate Court decreed the suit. It is worthwhile to note that the RCS No.1041/1990 that was filed by the appellant/tenant for declaration that Rupabai was not his landlady or that her sale deed was nominal and fraudulent was dismissed by the Civil Court and the said decree of dismissal became final between the parties inasmuch as the appellant did not challenge the said decree of dismissal of his suit. The denial of title was, thus, false. From the above, it is clear that the appellant lost the suit in which he claimed a declaration that Rupabai was not the landlady and he also objected to the Rent Control application on the ground that Rupabai not being a landlady, the Application was not maintainable before the Rent Controller and which objection was upheld by the Rent Controller. Thus, on one hand the appellant/tenant took a specific objection about the maintainability of the application before the Rent Controller on the ground that she was not the landlady which objection was accepted by the Rent Controller; and on the other hand, claimed that he could not be held liable for eviction on the ground of forfeiture of tenancy when the matter went to Civil Court on forfeiture of tenancy..
8. Mr. Bhangde, learned senior Advocate for the appellant contended that, in fact, the landlady ought to have challenged the order of the Rent Controller, Amravati dismissing her application further but instead she withdrew her Appeal before the Appellate Authority on 4.5.1995. According to him, the proper remedy for landlady was to prosecute the proceedings only before the Rent Controller and, therefore, filing of Suit for eviction was not the correct course adopted by her. The submission is fallacious. As earlier stated, the appellant/tenant himself took a stand before the Rent Controller that Rupabai was not the landlady or her sale deed was nominal, fraudulent etc. and acting on his objection, the Rent Controller dismissed the Application. It is not that the Rent Controller on his own dismissed the application without any objection from the appellant/tenant so that such an argument could be considered. Not only that the appellant boldly enough filed RCS No.1041/1990 against Rupabai for a declaration that she was not the owner of the suit property and he lost the said suit which was dismissed by the Civil Court and did not challenge the said decree thereafter. Thus, the appellant blew hot and cold. It must be concluded that appellant's act of denial of derivative title of the landlady was mala fide and also false and hence tenant's estoppel u/s 116 of the Evidence Act will apply. Hence, I answer Question Nos.1 and 2 accordingly.
9. The landlady having lost the Rent Control Application, went to the Civil Court pleading forfeiture of tenancy as aforesaid, but the plea was taken that Section 111(g) of the T.P. Act had no application because she held derivative title. In the above factual background and looking to the conduct of the appellant, in my opinion, the "principle of estoppel" embodied in Section 115 of the Evidence Act would come into play against the appellant/tenant. Section 115 of the Evidence Act reads thus:
"115: Estoppel: When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
In the light of the above provision of estoppel the question is whether the appellant/tenant could be allowed to contend that he was entitled to challenge the derivative title of Rupabai and that would not attract the vice of Section 111(g) of the T.P. Act. I have perused several decisions cited before me by the learned counsel for the rival parties carefully on the question of challenge to the derivative title and the consequences. Looking to various decisions, it appears to me that the provisions of Section 116 of the Evidence Act putting estoppel against the tenant, alternatively, if held to be inapplicable in the case of the appellant, still the rule of estoppel by conduct u/s 115 of the Evidence Act will come into play against him for raising such a false defence. Thus, applying the rigours of Section 115 of the Evidence Act, the appellant's act of denying even the derivative title being mala fide as held by me, the vice of forfeiture of tenancy u/s 11(g) of the T.P. Act is attracted in his case. Hence, I answer Question No.3 accordingly.
"16. After the creation of the tenancy if the title of landlord is transferred or devolves upon a third person the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights acknowledges the title of transferee either expressly or by paying rent to him, the rule of estoppel once again comes into operation for it is unjust to allow the tenant to approbate and reprobate and so long as the tenant enjoys everything which his lease purports to grant, how does it concern him what the title of the lessor is? (See Tej Bhan Madan v. II ADJ: (1988) 3 SCC 137). A denial of title which falls foul or the rule of estoppel contained in Section 116 of the Evidence Act is considered in law a malicious act on the part of the tenant as it is detrimental to the interest of the landlord and does no good to the lessee himself. However, it has to be borne in mind that since the consequences of applying the rule of determination by forfeiture of tenancy as a result of denial of landlord's title or disclaimer or tenancy by tenant are very serious, the denial or disclaimed must be in clear and unequivocal terms. (See : Majari Subbarao v. PVK Krishna Rao: (1989) 4 SCC 732; Kudan Mal vs. Gurudutta : (1989) 1 SCC 552 and Raja Mohammad Amir Amir Ahmad Khan). We may quote with advantage the law as stated by a Division Bench of the Calcutta High Court in Hatimullah v. Mohd. Abju Choudhury : AIR 1928 Cal.312: 32 CWN 391 . It was held:
The principle of forfeiture by disclaimer is that where the tenant denies the landlord's title to recover rent from him bona fide on the ground of seeking information of such title or having such title established in a court of law in order to protect himself, he is not to be charged with disclaiming the landlord's title. But where the disclaimer is done with this object but with an express repudiation of the tenancy under the landlord, it would operate as forfeiture."
Section 111(g) of the Transfer of Property Act reads thus:
" 111. Determination of lease -A lease of immovable property determines - (a) ...
(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 reenter; 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 himself ; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may reenter 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; (h)..."
11. It is not in dispute in the present case that a notice contemplated by section 111(g) of the T.P. Act was issued by the landlady and after expiration of notice, the suit was filed. It may be true that the appellant/tenant did not accept Rupabai as his landlady and made the payment of rent to her clearly under protest. The finding of fact recorded by the lower Appellate Court that the appellant/tenant had paid the rent and therefore, accepted Rupabai as a landlady is not correct. That apart, in view of the provisions of Section 111 (g) of the T.P .Act and in the light of denial of title of Rupabai before the Rent Controller and having failed in obtaining declaration against her about her ownership, it will have to be concluded that the attempt on the part of the appellant to challenge her title was not bona fide. From the various decisions cited before me, it is clear that the determination of lease under section 111 (g) of the T.P. Act may not be made in case of the denial of title which is bona fide or innocent. But in the instant case, what I find is that the appellant deliberately challenged her title before the Rent Controller as well as in the RCS No. 1041/ 1990 and sought a declaration that she was not the owner and that was done repeatedly. It is settled legal position that the reason to prevent the tenant from denying the title of the landlord is that the tenant cannot be allowed to acquire by prescription a permanent right of occupancy in derogation of landlord's title by mere assertion of such a right to the knowledge of the landlord. There is no reason as to why the said principle should not be made applicable in the case of landlord obtaining derivative title.
12. Looking to the language of Section 111(g) of the T.P. Act, I think Section 111(g) will have an independent operation without being dependent on applicability of rule of estoppel under Section 116 of the Evidence Act which is an enabling provision. As discussed in the instant case when the landladyRupabai went before the Rent Controller, the appellant took a strong objection as to the maintainability of the application before the Rent Controller on the ground that she was not the landlady and, thereafter, when she went to Civil Court claiming decree of eviction, the objection taken is that the landlady will have to obtain permission from the Rent Controller for his eviction since the ground of forfeiture of tenancy was not available to her, she having held a derivative title. If such a plea is accepted then no remedy is available to her in law. The appellant cannot be thus allowed to approbate and reprobate and, therefore, he could not be allowed even to take a stand that he would not be guilty of the vice provided by Section 111(g) of the T.P. Act resulting into the consequence of determination of tenancy, rather it would be unjust to deny the remedy in law to the landlady. In the instant case, looking to the pleadings and the conduct of the appellant in filing the suit for declaration about her title and getting the proceedings before the Rent Controller dismissed on the same ground, there was a clear intention on the part of the appellant to not to act bona fide, on the contrary, was acting mala fide. That was all the more so because the lease was only for a period of five years and the suit was filed after the period of lease of five years. The lower Appellate Court has rightly held that the document Exh. 68 list of document was liable to be rejected, not being admissible in evidence for want of registration.
13. The question about jurisdiction of the Court raised for the first time cannot be raised in the second appellate jurisdiction particularly in the light of number of years that have passed and since the question was never raised in any of the Courts below by the appellant. The decision of the Division Bench of the M.P. High Court was overruled by the full Bench of the same High Court. Hence, I answer Question No.4 in the negative.
Second Appeal No. 357/1999 is dismissed. No order as to costs.