Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6734 OF 2012

(Arising out of S.L.P. (C) No.10576 of 2011)

M/s Payal Vision Ltd. …Appellant

Versus

Radhika Choudhary …Respondent

J U D G M E N T

T.S. THAKUR, J.

1.Leave granted.

2.In a suit for possession and recovery of mesne profit

filed by the plaintiff- appellant before the trial Court of

Additional District Judge, Delhi, the plaintiff prayed for a

decree for possession in its favour on admissions, invoking

the Court’s powers under Order XII Rule 6 of the Code of

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Page 2 Civil Procedure, 1908. The trial Court examined the prayer

and held that the jural relationship of landlord and tenant

was admitted between the parties and so was the rate of

rent as settled by them. Service of a notice terminating the

tenancy of the defendant-respondent also being admitted,

the trial Court saw no impediment in decreeing the suit for

possession of the suit property. The application filed by the

plaintiff-appellant under Order XII Rule 6 of the CPC was

accordingly allowed and the suit filed by the plaintiff to the

extent it prayed for possession of the suit property decreed

in its favour.

3.Aggrieved by the decree passed against the

respondent, the respondent filed Regular First Appeal No.

81 of 2009 before the High Court of Delhi which was

allowed by the High Court in terms of its order dated 14

th

March, 2011 reversing the judgment and decree passed by

the trial Court and remanding the matter back to the said

Court for disposal in accordance with law. The present

appeal by special leave assails the correctness of the said

judgment.

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Page 3 4.Mr. Nagendra Rai, learned counsel appearing on behalf

of the appellant, strenuously argued that the High Court

had fallen in error in holding that there was no clear

admission by the defendant either regarding the existence

of a relationship of landlord and tenant between the parties

or the service of notice of termination of tenancy upon the

defendant. He referred to the averments made in the plaint

and the written statement to buttress his submission that

the existence of the tenancy was unequivocally admitted,

no matter the defendant-tenant had questioned the validity

of the lease deed in her favour for want of stamp duty and

registration as required under law. The fact that the lease

deed was not registered did not, contended Mr. Rai, make

any material difference so long that the defendant had

been put in possession of the demised property pursuant to

the said document and so long as she held the same as a

tenant. The rate of rent was also not disputed by the

defendant nor was the service of notice of termination,

which aspects alone were relevant and if admitted or

proved, sufficient for the Court to decree the suit for the

relief of possession. Mr. Rai submitted that the defendant

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Page 4 had no doubt disputed the title of plaintiff-appellant and

alleged that the land underlying the super structure had

vested in the Gram Sabha but any such contention was not

available to her in view of Section 116 of the Indian

Evidence Act, 1872 that estopped a tenant from denying

the title of the landlord. Relying upon the decisions of this

Court in Karam Kapahi v. Lal Chand Public Charitable

Trust (2010) 4 SCC 753 and Charanjit Lal Mehra v.

Kamal Saroj Mahajan (2005) 11 SCC 279, Mr. Rai

argued that the High Court ought to have refused any

interference with the decree passed by the Court below

especially when no triable issue arose for determination by

the trial Court.

5.On behalf of the respondent, it was argued that the

High Court was justified in holding that the written

statement did not contain a clear and unequivocal

admission of the relevant aspects, namely the existence of

the jural relationship of landlord and tenant between the

parties and the termination of the tenancy by service of a

notice under Section 106 of the Transfer of Property Act,

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Page 5 1882. According to him, the High Court was also justified

in relying upon the decision of this Court in Jeevan

Diesels & Electricals Ltd. v. Jasbir Singh Chadha

(2010) 6 SCC 601 while reversing the judgment and

decree passed by the Court below.

6.In a suit for recovery of possession from a tenant

whose tenancy is not protected under the provisions of the

Rent Control Act, all that is required to be established by

the plaintiff-landlord is the existence of the jural

relationship of landlord and tenant between the parties and

the termination of the tenancy either by lapse of time or by

notice served by the landlord under Section 106 of the

Transfer of Property Act. So long as these two aspects are

not in dispute the Court can pass a decree in terms of

Order XII Rule 6 of the CPC, which reads as under:

“Judgment on admissions-(1) Where admissions of

fact have been made either in the pleading or

otherwise, whether orally or in writing, the Court may

at any stage of the suit, either on the application of any

party or of its own motion and without waiting for the

determination of any other question between the

parties, make such order or give such judgment as it

may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule

(1) a decree shall be drawn upon in accordance with

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Page 6 the judgment and the decree shall bear the date on

which the judgment was pronounced.”

7.The above sufficiently empowers the Court trying the

suit to deliver judgment based on admissions whenever

such admissions are sufficient for the grant of the relief

prayed for. Whether or not there was an unequivocal and

clear admission on either of the two aspects to which we

have referred above and which are relevant to a suit for

possession against a tenant is, therefore, the only question

that falls for determination in this case and in every other

case where the plaintiff seeks to invoke the powers of the

Court under Order XII Rule 6 of the CPC and prays for

passing of the decree on the basis of admission. Having

said that we must add that whether or not there is a clear

admission upon the two aspects noted above is a matter to

be seen in the fact situation prevailing in each case.

Admission made on the basis of pleadings in a given case

cannot obviously be taken as an admission in a different

fact situation. That precisely is the view taken by this

Court in Jeevan Diesels & Electricals Ltd. (supra) relied

upon by the High Court where this Court has observed:

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Page 7 “Whether or not there is a clear, unambiguous admission

by one party of the case of the other party is essentially a

question of fact and the decision of this question depends

on the facts of the case. The question, namely, whether

there is a clear admission or not cannot be decided on the

basis of a judicial precedent. Therefore, even though the

principles in Karam Kapahi (supra) may be

unexceptionable they cannot be applied in the instant

case in view of totally different fact situation.”

8.Coming then to the question whether there is any

admission by the tenant-respondent regarding the

existence of the jural relationship of landlord and tenant

between the parties, it would be profitable to refer to the

averments made by the plaintiff-appellant in para 2 of the

plaint which is to the following effect:

“That the plaintiff had agreed to let out the entire

property at Khasra No. 857 min. (1-03) Village Tehsil

Mehrauli in the NCT of Delhi Gitorani alongwith

superstructure including servant quarter and garage of

the defendant to the defendant for residential

requirement at a monthly rent of Rs.50,000/- (Rupees

fifty thousand only) towards the rent for the demised

premises exclusive of charges for the electricity

appliances, fixtures and fittings for a period of three

years commencing on 10

th

day of October 2001 vide

lease agreement dated 10.10.2001.”

9.In the written statement filed by her, the defendant

has while asserting that the averments made in para 2

above are vague, false and wrong asserted that the

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Page 8 property in question was not let out for residential purposes

as alleged by the tenant but was constructed for

commercial use and let out for that purpose only. The

execution of the lease deed dated 10

th

October, 2001 to

which the plaintiff made a reference in para 2 of the plaint

is also not denied. Although the defendant appears to be

suggesting some collateral agreement also to have been

orally entered into by the parties, the relevant portion of

the written statement dealing with these aspects may at

this stage be extracted:

“……………. It is further denied that property was let out

for residential purposes. As submitted in preceding

paras the said property was constructed for use of

commercial purposes and was let out for commercial

purposes at commercial rent. Execution of Lease Deed

is though not denied but is vehemently submitted that

the said document was entered upon on the asking of

the plaintiff whereas the terms were different than

those incorporated in the lease deed.”

10.When placed in juxtaposition the averments made in

the plaint and the written statement clearly spell out an

admission by the defendant that lease agreement dated

10

th

October 2001 was indeed executed between the

parties. It is also evident that the monthly rent was settled

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Page 9 at Rs.50,000/- which fact too is clearly admitted by the

defendant although according to the defendant, the said

amount represented rent for commercial use of the

premises and not residential purposes as alleged by the

plaintiff. Suffice it to say that the averments made in the

written statement clearly accept the existence of the jural

relationship of landlord and tenant between the parties no

matter the lease agreement was not duly registered.

Whether the tenancy was for residential or commercial use

of the property is wholly immaterial for the grant of a

decree for possession. Even if the premises were let out for

commercial and not residential use, the fact remained that

the defendant-respondent entered upon and is occupying

the property as a tenant under the plaintiff. The nature of

this use may be relevant for determination of mesne profits

but not for passing of a decree for possession against the

defendant.

11.Incidentally, the defendant appears to have raised in

the written statement a plea regarding the nature and

extent of the super structure also. While the plaintiff’s case

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Page 10 is that the super structure as it existed on the date of the

lease deed had been let out to the defendant and the

defendant had made structural changes without any

authorisation, the defendant’s case is that the super

structure was constructed by her at her own cost pursuant

to some oral agreement between the parties. It is

unnecessary for us to delve deep into that aspect of the

dispute, for the nature and extent of superstructure or the

legality of the changes allegedly made by the defendant is

not relevant to the determination of the question whether

the existence of tenancy is admitted by the defendant. At

any rate, nature and extent of structure whether modified

or even re-constructed by the defendant is a matter that

can not alter the nature of the possession which the

defendant holds in terms of the agreement executed by

her. The relationship of the landlord and the tenant remains

unaffected even if the tenant has with or without the

consent of the landlord made structural changes in the

property. Indeed if the tenancy was protected by the rent

law and making of structural changes was a ground for

eviction recognised by such law, it may have been

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Page 11 necessary to examine whether the structure was altered

and if so with or without the consent of the parties. That is

not the position in the present case. The tenancy in

question is not protected under the Rent Control Act having

regard to the fact that the rate of rent is more than Rs.

3500/- per month. It is, therefore, of little significance

whether any structural change was made by the defendant

and if so whether the same was authorised or otherwise.

The essence of the matter is that the relationship of the

landlord and the tenant is clearly admitted. That is the

most significant aspect to be examined by the Court in a

suit for possession especially when the plaintiff seeks a

decree on the basis of admissions.

12.That brings us to the second question, namely,

whether the tenancy stands terminated either by lapse of

time or by a notice served upon the defendant. The

defendant-tenant did not have the benefit of a secure term

under a registered lease deed. The result was that the

tenancy was only a month to month tenancy that could be

terminated upon service of a notice in terms of Section 106

11

Page 12 of the Transfer of Property Act. The plaintiff’s case in para

6 of the plaint was that a notice was served upon the

tenant under Section 106 of the Transfer of Property Act

pointing out that the defendant-tenant had made

substantial structural changes in the premises and had not

complied with the terms of the lease agreement. The

notice was duly served upon the tenant to which the tenant

has not replied. Para 6 reads as under:

“That since the defendant had carried out

substantial structural changes and further did not

comply with the covenants of the lease agreement the

plaintiff was compelled to serve a notice under Section

106 of the Transfer of Property Act. The said notice

was duly served upon the defendant and no reply to

the said notice has been received by the plaintiff or its

counsel.”

13.In reply, the defendant has not denied the service of a

notice upon the defendant. Instead para 6 is entirely

dedicated to the defendant’s claim that the whole structure

standing on the site today has been constructed by her out

of her own money. The defendant has not chosen to deny

even impliedly leave alone specifically that notice dated 17

th

March 2003 was not served upon her. In para 6 of the

preliminary objections raised in the written statement she

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Page 13 has simply disputed the validity of the notice on the ground

that that the same is not in accordance with Section 106 of

the Transfer of Property Act. Para 6, reads as under:

“That the alleged notice dated 17

th

March, 2003 is not

as per the provisions of Section 106 of Transfer of

Property Act. It is settled law that notice for

termination of lease has to be in mandatory terms so

specified in Section 106 of Transfer of Property Act.”

14.Far from constituting a denial of the receipt of the

notice the above is an admission of the fact that the notice

was received by her but the same was not in accordance

with Section 106 of the Transfer of Property Act. In

fairness to counsel for the tenant-respondent in this appeal,

we must record that the order passed by the High Court

was not supported on the plea of the notice being illegal for

any reason. A copy of the notice in question is on the

record and the same does not, in our opinion, suffer from

any illegality so as to make it non-est in the eye of law.

15.We may, before parting, refer to yet another

contention that was raised by the defendant-respondent in

her defence before the courts below. In para 1 of the

written statement filed by her it was contended that the

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Page 14 property in question had vested in the Gram Sabha and

that the plaintiff, therefore, could not seek her eviction

from the same. The contention was, it appears, based on

an order dated 17

th

February, 1999 passed by the Revenue

Authority under the Delhi Land Reforms Act whereby it was

directed that the property would stand vested in the Gram

Sabha if the plaintiff did not re-convert the land in question

for agricultural purposes within three months. What is

important is that the tenancy under the lease agreement

dated 10

th

October, 2001 started subsequent to the passing

of the said order of the Revenue Authority. In other words,

the challenge to the title of the plaintiff qua the suit

property was based on a document anterior to the

commencement of the tenancy in question. It also meant

that the challenge was in substance a challenge to the

landlord’s title on the date of the commencement of the

tenancy. Section 116 of the Evidence Act, 1872, however,

estoppes the tenant from doing so. The legal position in

this regard is settled by several decisions of this Court and

the Privy Council. Reference may in this regard be made to

Mangat Ram v. Sardar Mehartan Singh (1987) 4 SCC

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Page 15 319 and Anar Devi (Smt.) v. Nathu Ram (1994) 4 SSC

251. In the later case this Court observed:

“13. This Court in Sri Ram Pasricha v. Jagannath,

has also ruled that in a suit for eviction by landlord, the

tenant is estopped from questioning the title of the

landlord because of Section 116 of the Act. The Judicial

Committee in Kumar Krishna Prasad Lal Singha Deo v.

Baraboni Coal Concern Ltd., when had occasion to

examine the contention based on the words ‘at the

beginning of the tenancy’ in Section 116 of the

Evidence Act, pronounced that they do not give a

ground for a person already in possession of land

becoming tenant of another, to contend that there is no

estoppel against his denying his subsequent lessor's

title. Ever since, the accepted position is that Section

116 of the Evidence Act applies and estops even a

person already in possession as tenant under one

landlord from denying the title of his subsequent

landlord when once he acknowledges him as his

landlord by attornment or conduct. Therefore, a tenant

of immovable property under landlord who becomes a

tenant under another landlord by accepting him to be

the owner who had derived title from the former

landlord, cannot be permitted to deny the latter's title,

even when he is sought to be evicted by the latter on a

permitted ground.”

16.To the same effect is the decision of Privy Council in

Krishna Prasad v. Baraboni Coal Concern Ltd. AIR

1937 PC 251, where Privy Council observed:

“The section postulates that there is a tenancy still

continuing, it had its beginning at a given date from a

given landlord. It provides that neither a tenant nor

any one claiming through a tenant shall be heard to

deny that that particular landlord had at that date a

title to the property. In the ordinary case of a lease

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Page 16 intended as a present demise (which is the case before

the Board, on this appeal) the section applies against

the lessee, any assignee of the terms and any sub-

lessee or licensee. What all such persons are precluded

from denying is that the lessor had a title at the date of

the lease and there is no exception even for the case

where the lease itself discloses the defect of title . The

principle does not apply to disentitle a tenant from

disputing the derivative title of any who claims to have

since become disentitled to the reversion……”

(emphasis supplied)

17.In the light of the above, the trial Court was, in our

view, perfectly justified in decreeing the suit for possession

filed by the appellant by invoking its powers under Order

XII Rule 6 of the Code of Civil Procedure. Inasmuch as the

High Court took a different view ignoring the pleadings and

the effect thereof, it committed a mistake.

18. We accordingly allow this appeal, set aside the

impugned judgement and order of the High Court and

affirm the judgment and decree passed by the trial Court.

The Parties are directed to bear their own costs.

19.Keeping in view the fact that the premises in question

is being used by the tenant for commercial purposes, we

grant to the defendant time till 31

st

December, 2012 to

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Page 17 vacate the same on furnishing an undertaking in usual

terms before this Court within four weeks from today.

Needless to say that the defendant shall be liable to pay the

mesne profit for the period hereby granted at the rate

determined by the trial Court.

20.The appeal is allowed accordingly.

……………………………………… .……….…..…J.

(T.S. Thakur)

………………………… ..………………… ..…..…J.

(Gyan Sudha Misra)

New Delhi

September 20, 2012

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