Allowed

Banke Lal Agrawal v. Smt. Dr. Mithilesh Bansal and 2 Others

Allahabad HC6 Nov 2019A227/2359/2015

Case brief

AI extract

What is this about?

Under Article 227, the Court examined whether a tenant unconditionally deposited rent and denied title of the landlady to protect his rights under Section 116 of the Evidence Act. Finding no disclaiming of tenancy, the Court set aside lower courts' eviction decree under Section 20(2)(f) of the U.P. Tenancy Act.

What did the court decide?

The eviction order dated 30.03.2015 and 04.01.2013 under Section 20(2)(f) of U.P. Act XIII of 1972 is set aside; the petition is allowed.

Banke Lal Agrawal Vs Smt. Dr. Mithilesh Bansal and 2… — Landlord and Tenant | Allahabad HC (2019)

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AFR

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Court No. - 05 Case :- MATTERS UNDER ARTICLE 227 No. - 2359 of 2015

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Petitioner :- Banke Lal Agrawal Respondent :- Smt. Dr. Mithilesh Bansal And 2 Others Counsel for Petitioner :- Rahul Agarwal,Dinesh Kumar,Nirvikar Gupta Counsel for Respondent :- Abu Bakht

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Hon'ble Surya Prakash Kesarwani,J.

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“Ingredients of denial of title by a tenant so as to attract Section 20(2)(f) of U.P. Act XIII of 1972, is the main question involved in the present petition.”

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FACTS :-

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Heard Sri Nirvikar Gupta, learned counsel for the defendant-tenant/ petitioner and Sri P.K. Jain, learned senior advocate assisted by Sri Abhitab Agarwal, learned counsel for the plaintiff-respondents.

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Briefly stated facts of the present case are that the disputed house situate at Azad Chowk, Main Bazar, Qasba Jevar, District Gautam Budh Nagar was originally owned by Sri Mahesh Chand father of the plaintiff-respondent No.1 Smt. Dr. Mithilesh Bansal resident of Qasba Palwal, District Faridabad (Haryana), which was purchased by Sri Mahesh Chand by a registered sale deed dated 04.08.1966 from one Sri Babu Ram and another. According to the plaintiff-respondent No.1, the purchase of the house was benami . That apart, in her marriage on 03.02.1981, her father Mahesh Chand had gifted the house to her which she accepted. But despite this fact, her father Mahesh Chand entered into some rent deed in his own name. Therefore, she filed declaratory Suit No.28 of 1984 (Smt. Mithilesh Bansal vs. Mahesh Chand and another) which was decreed by judgment dated 09.04.1984 and decree dated 21.05.1984 under Order VIII Rule 10, C.P.C. on the basis of compromise. Thus, the plaintiff-respondent No.1 became owner and landlord of the disputed shop.

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The defendant-petitioner was a tenant of the disputed shop. According to the plaintiff-respondent No.1, the defendant-tenant sent a notice dated

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28.01.1985 through counsel Mohd. Iqbal Khan to the plaintiff's father Mahesh Chand by registered post stating that the rent from 01.04.1983 is not being accepted so as to cause harassment and, therefore, notice is being given to accept the rent and issue a rent receipt. According to the plaintiff, this notice was replied by her father Mahesh Chand to the defendant-tenant by reply dated 12.03.1985 followed by letter dated 12.03.1985 by registered post whereby Mahesh Chand stated that it was earlier notified and made clear to the defendant-tenant that the shop is now owned by the plaintiff-respondent No.1, Smt. Mithilesh Bansal in view of the judgment and decree passed by the Munsif Khurja in O.S. No.28 of 1984 and, therefore, the previous and future rent be paid to the owner and landlady Smt. Mithilesh Bansal.

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According to the plaintiff-respondent No.1, despite intimation of the shop in question to be owned by her, the defendant-tenant has not paid any rent. Subsequently, he filed an Injunction Suit No.267 of 2006 (Banke Lal Agarwal vs. Mahesh Chand). In paragraph-1 of the plaint of O.S. No.267 of 2006, the defendant-tenant/ petitioner stated, as under:-

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^^1- ;g fd oknh fuEu of.kZr nqdku ftls uD'kk okn i= esa 'kCn v c l n ls fn[kk;k x;k gS] dk fdjk;snkj izfroknh dh vksj ls fiNys 50 o"kZ ls vf/kd ls pyk vk jgk gSA ^^

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The averments of paragraph-1 of the plaint of O.S. No.267 of 2006 were denied by Mahesh Chand (father of the plaintiff-respondent No.1 No.1) in paragraph-1 of his written statement. Thereafter, in paragraphs11 and 22 of the written statement in O.S. No.267 of 2006, the aforesaid Mahesh Chand has stated, as under:-

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^^11- ;g fd okn i= dh /kkjk 1 dk dFku xyr gS vLohdkj gSA oknh of.kZr leifRr dk izfroknh dk fdjk;snkj ugha gSA oju fnukad 01-041983 ls iz'uxr leifRr dh ekfyd Jhefr feFkys'k caly gSA fnukad 31-03-1983 rd oknh iz'uxr nqdku dk Lokeh Fkk rc rd dk fdjk;k oknh ls izfroknh us izkIr fd;k FkkA mlds ckn iz'uxr leifRr dh ekfyd Jhefr feFkys'k caly gks x;hA blfy;s izfroknh }kjk fnukad 31-03-1983 ds ckn u rks oknh ls dksbZ fdjk;k izkIr fd;k x;k vkSj u gh dksbZ jlhn gh izkIr dh x;hA vkSj u gh izfroknh dks fdjk;k oknh }kjk iznku fd;k x;kA^^

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^^22- ;g fd oknh }kjk fnukad 28-01-1985 dks vius vf/koDrk Jh bdcky vgen ,MoksdsV ls izfroknh dks uksfVl fdjk;k fy;s tkus gsrq fHktok;k x;k FkkA ftldk mRrj izfroknh us oknh ds vf/koDrk Jh bdcky vgen ,MoksdsV dks

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fnuakd 12-03-1985 dks izkIr djk;k ftlesa Li"V crk;k x;k Fkk fd iz'uxr leifRr dh ekfyd izfroknh ugha jgk cfYd okn la0 28 lu 1984 U;k;ky; eqaflQ [kqtkZ ds fu.kZ; ,oa fMdzh vkns'k fnukad 09-04-1984 ds vuqlkj Jhefr feFkys'k caly gks x;hA mRrj esa ;g Hkh Li"V :i ls fy[kk x;k Fkk fd fiNyk fdjk;k ,oa Hkfo"; esa fdjk;k Jhefr feFkys'k caly dks vnk djsaA izfroknh fnukad 31-03-2003 ds ckn ls ckngq fu.kZ; ,oa fMdzh fnukad 09-04-1984 ds ckn ls iz'uxr nqdku leifRr dk ekfyd ugha gSA ,slh fLFkfr esa oknh }kjk izfroknh dks vkfFkZd] ekufld] lkekftd {kfr dkfjr djus ds mn~ns'; ls rFkk vius fdlh fNis gq, LokFkZ ls oknh us izfroknh ds fo:) mDr okn ;ksftr fd;k gS ftldk mls dksbZ vf/kdkj ugha gSA^^

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According to the plaintiff-respondent No.1, since the rent was not being paid and the defendant-tenant/ petitioner has denied her title as per afore-quoted paragraph-1 of the plaint of O.S. No.267 of 2006, therefore, after notice, she filed S.C.C. Suit No.5 of 2007 (Dr. Mithilesh Bansal vs. Banke Lal Agarwal). In paragraphs-8 and 11 of the plaint of S.C.C. Suit No.5 of 2007, the plaintiff-respondent No.1 has stated, as under:

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^^8- ;g fd izfroknh fdjk;k vnk djus esa l[r uknsfgUn gS vkSj lkFk gh mlus mDr of.kZr nqdku ls okfnuh ds LokfeRo ls Hkh badkj fd;k gS blfy;s okfnuh ukfylh gSA^^

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^^11- ;g fd okn dk dkj.k loZizFke fnukad 9-4-84 dks tcfd okfnuh mDr of.kZr nqdku dh Hkou Lokeh U;k;ky; eqaflQ [kqtkZ }kjk okn la[;k 28@1984 esa ?kksf"kr gqbZ] ckngw izR;sd vaxszth eghuk dh igyh rkjh[k dks tc fd izfroknh ij mDr of.kZr nqdku dk fdjk;k okftc gqvk rFkk ckngw tcfd izfroknh us ewyokn la[;k 267@06 esa mDr of.kZr nqdku ls okfnuh ds LokfeRo dks badkj fd;k rFkk nqdku esa okfnuh dks viuk Hkou Lokeh ugha dgk rFkk vfUre :i ls uksfVl fnukad 21-3-2007 dh 30 fnu dh vof/k lekIr gks tkus ds i'pkr bl U;k;ky; dh lhek ds vUrxZr mRiUu gqvk ,oa U;k;ky; dks okn dks lquus o mls fu.khZr djus dk gd gkfly gSA^^

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Contents of afore-quoted paragraph-8 of the plaint of S.C.C. Suit No.05

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of 2007 were denied by the defendant-tenant/ petitioner in paragraphs-8 and 11 of his written statement, as under:-

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^^ 8- ;g fd okn i= dh /kkjk 8 dk dFku xyr gS] vr% vLohdkj gSA izfroknh fdjk;k vnk djus esa gfxZt Hkh uknsfgUn ugha gSA izfroknh ls fookfnr nqdku dk fdjk;k egs'k pUn iq= jketh yky }kjk 31-03-2006 rd dk nLrh izkIr dj fy;k x;k gSA izfroknh }kjk oknuh ds fookfnr nqdku ds LokfeRo ls dHkh Hkh bUdkj ugha fd;k x;kA ^^

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11- ;g fd okn i= dh /kkjk 11 dk dFku xyr gS] vr% vLohdkj gSA oknuh dks dHkh dksbZ okn dk dkj.k izfroknh ds fo:) okn nk;j djus dk iSnk ugha gqvkA^^

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The plaintiff-respondent No.1 has also alleged in her plaint that rent has

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not been paid by the defendant-tenant/ petitioner. She waived her right

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for earlier rent and claimed the rent of only three years amounting to Rs.4,809/-.

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On the first date of hearing, the defendant-tenant/ petitioner deposited the entire demanded rent and claimed the benefit of Section 20(4) of U.P. Act XIII of 1972.

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The aforesaid S.C.C. Suit No.5 of 2007 was decreed by the impugned judgment and decree dated 04.01.2013 passed by Civil Judge (S.D.)/ Small Cause Court, Gautam Budh Nagar on the finding that the defendant-tenant/ petitioner has denied the title of the plaintiff-landlady/ respondent No.1 and thus, provisions of Section 20(2)(f) of U.P. Act XIII of 1972 stood attracted. So far as questions of payment of rent and the benefit of Section 20(4) of U.P. Act XIII of 1972 are concerned, they were decided in favour of the defendant-tenant/ petitioner and against the plaintiff-respondent No.1. The aforesaid judgment was challenged by the defendant-tenant/ petitioner in S.C.C. Revision No.01 of 2013 (Banke Lal Agarwal vs. Smt. Dr. Mithilesh Bansal), which has been dismissed by the impugned judgment dated 30.03.2015 passed by the Additional District Judge – IInd, Gautam Budh Nagar. Aggrieved with the aforesaid two judgments, the defendant-tenant/ petitioner has filed the present petition under Article 227 of the Constitution of India.

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SUBMISSIONS:-

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Learned counsel for the defendant-tenant/ petitioner submits as under:

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(i) Both the courts below have held that there was no default. Both the courts below have found that the defendant-tenant/ petitioner is entitled for the benefit of Section 20(4) of U.P. Act XIII of 1972 inasmuch as he unconditionally deposited the entire demanded amount of rent etc. and interest on the first date of hearing.

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(ii) The defendant-tenant/ petitioner has never denied the title of the plaintiff-landlady/ respondent No.1.

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(iii) The finding of the courts below in the impugned judgments on the point of denial of title of the plaintiff-landlady/ respondent No.1 is perverse and grossly illegal inasmuch as neither in the written statement filed in S.C.C. Suit nor in the plaint of the Injunction Suit No.267 of 2006 nor at any point of time, the defendant-tenant/ petitioner has denied the title of the plaintifflandlady/ respondent No.1. In the absence of any denial of title by the defendant, the provisions of Section 20(2)(f) were not attracted and yet the impugned judgments have been passed baselessly by the courts below.

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(iv) Question of denial of title is a serious matter and, therefore, in the absence of clear denial of title, no decree can be passed in terms of the provisions of Section 20(2)(f) of the Act. Mere seeking information of ownership is not denial of title.

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Sri P.K. Jain, learned senior advocate for the plaintiff-respondent submits , as under:-

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(i) The defendant-tenant/ petitioner was well aware of the ownership of the plaintiff-landlady/ respondent No.1 of the building in question. This fact becomes further evident from the reply dated 12.03.1985 given by her father Mahesh Chand to the defendant-tenant/ petitioner in reply to their notice dated 28.01.1985 given through counsel Mohd. Iqbal Khan. Averments made in paragraph-1 of the plaint of O.S. No.267 of 2006 filed by the defendant-tenant/ petitioner also amounts to denial of title of the plaintiff-landlady/ respondent No.1. Thus, the defendant-tenant/ petitioner has denied that the title of the plaintiff-landlady with respect to the house in question and renounced his character as tenant. Therefore, the impugned judgments have been lawfully passed holding denial of title by the defendant-tenant/ petitioner.

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DISCUSSION AND FINDINGS:-

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I have carefully considered the submissions of learned counsels for the parties and perused the impugned judgments.

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Section 20(2) of the U.P. Act XIII of 1972, enables a landlord to institute a suit for eviction of a tenant from a building after determination of his tenancy of one or more of the grounds mentioned in clauses (a) to (g). In the present case, the controversy relates to clause (f) of Section 20(2), which is reproduced below:-

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“ That the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right of re-entry or condoned the conduct of the tenant.”

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Section 116 of the Indian Evidence Act, 1872 creates an estoppel for a tenant to deny the title of his/ her landlord, which is reproduced below:

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“ Section 116. Estoppel of tenant; and of licensee of person in possession. —No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.”

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16. The aforesaid provision of S ection 20(2)(f) of the U.P. Act XIII of 1972 is, thus, a provision for determination of tenancy by forfeiture on denial of the landlord's title by the tenant. It is a statutory ground of eviction, which has been incorporated in the Act which becomes invokable by a landlord when a tenant has renounced his character as such or denied the title of his landlord and the landlord has not waived his right of re-entry or condoned the conduct of the tenant.

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A tenant's bona fide calling upon his/ her landlord/landlady to prove his/ her ownership or putting the landlord/ landlady to prove his/ her title so as to protect himself (i.e. the tenant) or to earn a protection made available to him by Rent Control Law but without disowning his character of possession over the tenancy premises as tenant cannot be

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said to have denied the title of his/ her landlord/ landlady or disclaimed the tenancy. The denial or disclaimer to be relevant for the purposes of Section 22(2)(f) of the U.P. Act XIII of 1972, should take colour from Section 116 of the Indian Evidence Act.

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Section 116 of the Indian Evidence Act, is a rule of estoppel , which prohibits a tenant of immovable property or person claiming through him to deny title of his/her landlord/landlady during continuance of the tenancy. This estoppel, so long as it binds the tenant, excludes the tenant from raising a plea disputing the title of his/ her landlord/ landlady. The rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. This contemplates the following fact situations which entail the lessee having renounced his character as such. These are:- (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself, or (iii) If the tenant assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title. Thus, in either case situation, the tenant could be said to have disputed or denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord.

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18. 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 not with this object but with an express repudiation of the tenancy under the landlord, it would operate as forfeiture. Where after 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

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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 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 landlord is.

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To answer a question where an assertion of denial of landlord's title by the tenant was bona fide, all surrounding circumstances under which the assertion was made, have to be seen. To invoke the ground of eviction under Section 20(2)(f) of the U.P. Act XIII of 1972, there should not only be a clear denial of title of the landlord by the tenant but the landlord should also allege and prove that he had not waived right of re-entry, or condoned the conduct of the tenant.

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The principle as stated above also finds support from the law laid down in Keshar Bai vs. Chhunulal, (2014) 11 SCC 438, Sheela vs. Firm Prhlad Rai Prem Prakash, (2002) 3 SCC 375 (paras-11 to 17), J.J. Lal Pvt Ltd. and others vs. M.R. Murli and another, AIR 2002 SC 1061 (Para-18), Sheikh Abdulla vs. Mohammad Muslim, 1926 AIR (Cal.) 1205, Sugga Bai vs. Hiralal, 1969 AIR (MP) 32, 1937 AIR (PC) 251 (para-10), Mohd. Arif vs. IVth Additional District Judge, Aligarh and others, 1984 (2) ARC 255 (All.) (Para-8), Dr. A.S. Raj vs. District Judge, Lucknow and others, 1982 ARC 515 (All.) (Para-26), Ram Autar Goel vs. Jagannath Gupta and another, 1998 (2) AWC 828 (paras-13 and 14), Pradeep Gautam and another vs. VIIIth Additional District Judge (Judge, SCC) Allahabad and another, 1993 (1) ARC 44, Brij Bhushan Mishra vs. Surita Sarbabdhikari, 2009 (74) All.LR 266 (paras-7 and 8), Jalsabh Shaikh vs. State of Goa, AIR 2000 (SC) 568 and Sahaj Ram vs. Rajednra Prasad, 2016 (6) ADJ 626.

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Perusal of the undisputed facts as noted above in paragraphs 3 to 6 leaves no manner of doubt that the defendant-petitioner/ tenant has not

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denied the title of the plaintiff-respondent/ landlady. The tenant has specifically stated that he has never denied the title of the respondentlandlady with respect to the disputed shop. The tenant has also deposited entire rent on the first date of hearing and continued to deposit/ pay rent to the plaintiff-respondent/ landlady. Under the circumstances, the finding of the courts below in the impugned judgment dated 04.01.2013 in SCC Suit No.05 of 2007 (Smt. Dr. Mithilesh Bansal vs. Banke Lal Agrawal passed by Civil Judge (S.D.)/ Small Cause Court, Gautam Budh Nagar and the judgment and decree dated 30.03.2015 in SCC Revision No.01 of 2013 (Banke Lal Agarwal vs. Smt. Dr. Mithilesh Bansal) passed by the Additional District Judge, Court No.2, Gautam Buddh Nagar with respect to the finding on the ground of denial of title of the plaintiff respondent as a ground for eviction from the disputed shop, is hereby set aside. The impugned judgments and decree are accordingly modified. Consequently, the eviction of the defendant-tenant/ petitioner under the impugned judgments, also stands set aside.

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In view of the aforesaid, the petition is allowed to the extent indicated above.

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Order Date :- 06.11.2019 NLY

Banke Lal Agrawal v. Smt. Dr. Mithilesh Bansal and 2 Others

Case brief

What is this about?

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Banke Lal Agrawal v. Smt. Dr. Mithilesh Bansal and 2 Others

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