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PETITIONER:

S. THANGAPPAN

Vs.

RESPONDENT:

P. PADMAVATHY

DATE OF JUDGMENT: 24/08/1999

BENCH:

A.P.Misra, N.Santosh Hegde

JUDGMENT:

D E R

These appeals are directed against the order of the

High Court of Madras dated 24.11.1997 in Civil Revision

Petition Nos. 3476 of 1985 and 830 of 1997 dismissing these

revisions. These appeals arise under the Tamil Nadu

Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act

No. 18 of 1960), hereinafter referred to as the Act. The

short facts are that the appellant is a tenant of the

disputed premises, who was running an automobile workshop.

The respondent filed the eviction petition against him, on

the grounds that he is defaulter, not paid the rents from

October 1982 to May 1983, the said premises is required for

demolition and reconstruction and that he has sub-let a

portion of the disputed premises.

The appellants stand is that earlier he was under an

impression that the respondent is the owner of the premises

but later he came to know that Arulmigu Athikesava Perumal

Peyalwar Devasthanam is the owner of the premises. So he

wrote a letter to the said Devasthanam to recognise the

appellant as a tenant. Since then and for this reason the

appellant did not pay any rent to the respondent bonafide

believing the Devasthanam to be the owner. The Rent

Controller rejected this defence and held that the appellant

committed default in the payment of rent, the premises in

question is legitimately required by the respondent for

demolition and reconstruction. However, the Rent Controller

rejected the case of sub-letting, which for the present

appeal is not in issue as it has become final. The

appellant then filed an appeal. The Appellate Authority

confirmed the order passed by the Rent Controller and held,

there exists relation of landlord and tenant between the

respondent and the appellant and the denial of title by the

appellant is not bonafide and the default of payment of rent

is wilful. Finally, the appellant filed civil revision

before the High Court. The main contention raised before

the High Court is also the same as raised before us that the

courts below have failed to appreciate on the facts and

circumstances of this case that denial of title by the

appellant is bona fide and hence non-payment of rent cannot

be held to be wilful. The appellant also relied on facts

which came into existence, during the pendency of the said

revision that in fact the said Devasthanam filed a suit on

30th October, 1987 against the appellant and others,

claiming paramount title over the land including disputed

one and also for eviction before the City Civil Court,

Madras. Reliance is sought to be placed on the reply

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affidavit of the appellant in the said suit, where it is

said he has admitted to be the tenant of the Devasthanam.

On the other hand aforesaid revision of the appellant was

dismissed for default by the High Court on 27th April, 1989.

Thereafter, the appellant filed an application for

restoration. Meanwhile, the respondent filed execution

petition before the Rent Controller. The appellant in this

execution also referred to the suit of the Devasthanam, and

submitted rent was rightly paid to the temple and not to

this respondent thus this execution has become inexecutable.

Respondent denied this claim on merit and further objected

of this being considered in the execution proceedings. It

was urged the executing court cannot go beyond the decree.

Thus the executing court on 24th September, 1987 rejected

the appellants contention. The appellant thereafter

preferred Civil Revision Petition No. 830 of 1997, as

aforesaid, before the High Court under Article 227 of the

Constitution of India.

The application of the appellant for restoration of

the revision was allowed. Finally, the High Court dismissed

both the said revisions. In the restored revision High

Court held, even if the entire property belong to the

temple, but since at the initial stage through the

arrangement with the respondent, the appellant was inducted

into the tenancy, the appellant cannot deny his right and

title. Consequently, held that non-payment of rent to the

respondent was wilful. It also confirmed that the building

is required by the respondent for demolition and

reconstruction. In the revision, against the order passed

by the executing court, the High Court held that merely

because the paramount title holder filed a suit, the

arrangement between the appellant and the respondent cannot

come to an end, hence claim of the appellant was rejected.

The appellant aggrieved by these dismissal orders of the

High Court in the two revisions, which upheld the concurrent

findings recorded by both the authority below has filed the

present appeals.

The main contention by the learned senior counsel for

the appellant, Mr. M.N. Krishnamani, is that the courts

below have neither applied its mind to the facts of this

case nor recorded any finding that the denial of title by

the appellant was not bonafide. The submission is that he

denied the title of the respondent in favour of temple on

the basis of information received from the Temple which is

also born out by the subsequent event, leading to filing of

the suit by the Devasthanam, thus his paying rent to the

temple constitute to be bonafide one. Further he submits

the said affidavit of the respondent in the Devesthanam suit

where he admits to be lessee, not owner, is contrary to what

he has stated in the present petition under Section 14 (1)

(b) of the Act where he assert himself to be the owner. For

all these reasons conduct of the appellant should be

construed to be bonafide.

The said averment made by the respondent in para 3 of

the petition under Section 14 (1)(b) read with Section 10

(2)(i) and 10 (2) (a) of the Act, is quoted hereunder: The

petitioner states that she is the absolute owner of the

premises house and ground bearing municipal door No. 108,

Pilliar Koil Street, Alwarpet, Madras - 600018. The

respondent herein is a tenant under her in respect of the

said property.

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While in para 2 of the affidavit filed by the

respondent for impleadment in the Devasthanam suit he

states:

I respectfully submit that I am the lessee in the

land of the first respondent herein. I have put up

superstructure and a portion was let out to the second

respondent herein.

It is on this it is submitted he admits to be the

lessee of Devasthanam then he cannot be the owner or the

landlord of the appellant. The two statements are

contradictory. On the other hand, learned counsel for the

respondent submits, there is concurrent finding by all the

courts that the appellant default in payment of rent is

wilful and building is required for demolition and

reconstruction, hence this Court should not interfere. It

is also submitted there is no contradiction in the two

statements and even if there is, it would be of no avail to

the appellant. The denial of title cannot be held to be

bonafide as the appellant was aware he was inducted into

tenancy by the predecessor of the respondent, there was

nothing to show since thereafter respondent lost his title

thus even filling of the subsequent suit by the Devasthanam

would not change the position as relationship of landlord

and tenant between the respondent and the appellant

continues, under the Act. So, on these facts the denial of

title of the respondent by the appellant followed by refusal

to pay rent to the respondent constitutes wilful default.

Mr. M.N. Krishnamani, learned senior counsel for the

appellant referred to Mangat Ram & Anr. Vs. Sardar

Meharban Singh & Ors., 1987 (4) SCC 319, wherein it is

observed as hereunder:

In the premises, the High Court as well as the

learned Additional District Judge were clearly in error in

decreeing the suit brought by respondent 1 under Section 20

(2)(a) of the Act by relying on the rule of estoppel

embodied in Section 116 of the Evidence Act, 1872. The

estoppel contemplated by Section 116 is restricted to the

denial of title at the commencement of the tenancy and by

implication it follows that a tenant is not estopped from

contending that the title of the lessor has since come to an

end.

Similarly, he referred to D. Satyanarayana Vs. P.

Jagadish, 1987 (4) SCC 424:

The appeal must be allowed on the short ground that

there being a threat of eviction by a person claiming title

paramount i.e. head lessor Krishnamurthy, the appellant was

not estopped under Section 116 of the Evidence Act from

challenging the title and his right to maintain the eviction

proceedings of the respondent P. Jagadish as the lessor.

Section 116 of the Evidence Act provides that no tenant of

immovable property 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. Possession and permission being

established, estoppel would bind the tenant during the

continuance of the tenancy and until he surrenders his

possession. The words during the continuance of the

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tenancy have been interpreted to mean during the

continuance of the possession that was received under the

tenancy in question, and the courts have repeatedly laid

down that estoppel operates even after the termination of

the tenancy so that a tenant who had been let into

possession, however defective it may be, so long as he has

not openly surrendered possession, cannot dispute the title

of the landlord at the commencement of the tenancy. The

rule of estoppel is thus restrict not only in extent but

also in time i.e. restricted to the title of the landlord

and during the continuance of the tenancy; and by necessary

implication, it follows that a tenant is not estopped, when

he is under threat of eviction by the title paramount, from

contending that the landlord had no title before the tenancy

commenced or that the title of the landlord has since come

to an end.

Having heard learned counsel for the parties and after

perusing the orders passed by the Rent Controller and

Appellate Authority we find they concurrently held that the

denial of title by the appellant was not bona fide and the

default was wilful. They also held building is required for

demolition and reconstruction. Challenging these findings

the learned counsel for the appellant argued with vehemence

that the authorities below should not have addressed itself

into the question of title, as it had no jurisdiction to

decide the question of title, hence approach of the

appellate authority was against the jurisdiction vested in

it under the law. Learned counsel referred to the case in,

LIC of India Vs. India Automobiles & Co. and Ors., 1990

(4) SCC 286, to contend that the question of title cannot be

gone into in these proceedings. There is no dispute of this

proposition neither it is disputed by the learned counsel

for the respondent nor this question of title has been

decided in these proceedings. It is only when a tenant

denies title of the landlord, the court has to scrutinise

the evidence and come to the conclusion prima facie, whether

the denial of title is bona fide or not. It is in the

context of course court has to go into the evidence to test

the veracity of this denial of title. Thus, any finding in

this regard could not be a finding on the question of title.

There is neither any claim of title set up by the respondent

nor there is any such issue between the parties in these

proceedings and hence recording of any finding in this

regard is only to be understood for a limited purpose of

testing the bona fide of tenant to deny the title of the

landlord.

What has to be considered in a case of denial of title

by a tenant is, whether their still exists any relationship

of landlord and tenant inter se, as in the present case

between the respondent No.1 and the appellant. In other

words by such denial of title does liability to pay this

rent to such landlord ceases? Does mere denial of title is

sufficient not to tender rent to such landlord or at what

stage such liablity ceases. These are all considerations in

the context of testing the defence of a tenant in not

tendering the rent to such landlord. So the question is to

whom rent is payable? In this regard definition of

landlord under Section 2(6) of the Tamil Nadu Buildings

(Lease and Rent Control) Act, 1960 is relevant, which is

quoted hereunder:

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Sec.2(6) landlord includes the person who is

receiving or is entitled to receive the rent of a building,

whether on his own account or on behalf of another or on

behalf of himself and others or as an agent, trustee,

executor, administrator, receiver or guardian or who would

so receive the rent to be entitled to receive the rent, if

the building were let to a tenant :

Explanation : A tenant who sub-let shall be deemed to

be a landlord within the meaning of this Act in relation to

the sub-tenant.

The definition of landlord is very wide to include any

person who is receiving or is entitled to receive the rent.

The explanation includes even a tenant to be landlord under

this Act. In the present case it is not in dispute that the

appellant was inducted into tenancy by the predecessor of

the respondent. After such induction he had been paying

rent first to the predecessor of the respondent No.1 from

1962 and then to the respondent No.1 since 1980. The

appellant in his cross examination has admitted this by

stating that he came as a tenant under one Shivlingam who is

the elder brother of Respondent No.1 and from 1980 onwards

he had been paying rent to respondent No.1. It is in this

background we have to test the submission for the appellant

with respect to the default and denial of title. It is

clear as is also finding recorded that the appellant himself

approached the Devasthanam subsequently to execute the

tenancy of the disputed premises in question to him. In

order to appreciate the conduct of the appellant in denial

of title of the Respondent No.1 we herewith record the

finding of the trial court in this regard;

The petitioner strongly and curiously would contend

that since he came to know all of a sudden that Arulmigu

Audikesava Perumal Peyalwar Devasthanam is the true owner of

the petition premises, he stopped the payment of rent to the

petitioner. In fact, the said Devasthanam never demanded

the rent from the respondent at any point of time, at their

own accord. Further, the said Devasthanam never intimated

to the respondent that they are the owners of the petition

premises. The above said Devasthanam had not informed the

petitioner that the said Devasthanam is the true owner of

the petition premises. For the first in the history, the

1st respondent writes a letter Ex.R.1 dt. 28.3.83 stating

that he may be recognised as a tenant under the said

Devasthanam in respect of the petition premises, as he

considered that the said Devasthanam is the true owner of

the petition premises. Thus the respondent himself gives

right and title to the said Devasthanam.

The said Arulmighu Audikesavaperumal Peyalwar

Devasthanam sent a reply to the 1st respondent on 4.5.83,

which is marked as Ex. R.3 in this petition. Even in

Ex.R.3, the said Devathanam had not examined any right and

title over the petition premises and the said devasthanam

had not even admitted their ownership over the petition

premises. Therefore, I hold that the contention of the

respondent that the petitioner has no right or title over

the petition premises, is not true even for a moment.

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The aforesaid finding speaks for itself the conduct of

the tenant in denial of Respondent No.1 title. In spite of

no claim of the rent made from the appellant he on his own

volition requested the Devasthanam to accept him as his

tenant. Further, Devasthanam had not even informed the

appellant that they are the owner. In this background can

denial of title by tenant could be held to be bona fide?

The courts below rightly held it to be not bonafide.

With reference to the subsequent event the other

submission for the appellant is with reference to the

Devasthanam suit, viz., the affidavit by the respondent in

which it is urged he admits to be lessee of Devasthanam and

thus his averment in the present proceeding being the owner

of the premises is wrong. This also would be of no avail.

Firstly, we are not called up to examine the said suit. The

respondent No.1 was not even impleaded hence was not a party

there. This apart relationship between the appellant and

the respondent is of tenant and landlord under the Act while

relationship between the respondent and Devasthanam may be

of lessee and lessor in a different set of fact. This would

make no difference. The definition of landlord is under

Section 2 (6) and under its explanation even tenant is

treated to be landlord. The aforesaid two decisions, viz.,

Mangat Ram and others (supra) and D. Satyanarayan (supra)

neither render any help to the appellant nor could it be

distinguished as not to apply to the facts of the present

case. On the contrary the two decisions squarely applies to

the present case. Section 116 of the Indian Evidence Act

deals with the principle of estoppel against a tenant where

he denies the title of his landlord. Section 116 reads as

under;

116. Estoppel of tenant and of licensee of person in

possession - No tenant of immovable [roperty, 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 title to such possession at the time when such

licence was given.

This section puts an embargo on a tenant of an

immovable property, during the continuance of his tenancy to

deny the title of his landlord at the beginning of his

tenancy. The significant words under it are at the

beginning of the tenancy. This is indicative of the sphere

of the operation of this section. So a tenant once inducted

as a tenant by a landlord, later he cannot deny his landlord

title. Thus, this principle of estoppel debars a tenant

from denying the title of his landlord from the beginning of

his tenancy. Howsoever defective title of such landlord

could be, such tenant cannot deny his title. But subsequent

to his induction as tenant if the landlord looses his title

under any law or agreement and there is threat to such

tenant of his eviction by subsequently acquired paramount

title holder then any denial of title by such tenant to the

landlord who inducted him into the tenany will not be

covered by this principle of estoppel under this Section.

In Mangat Ram and Ors. (supra) this Court held:

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The estoppel contemplated by Section 116 is

restricted to the denial of title at the commencement of the

tenancy and by implication it follows that a tenant is not

estopped from contending that the title of the lessor has

since come to an end.

Similarly in D.Satyanarayan (supra) also this Court

holds in para 4; The rule of estoppel embodied under

Section 116 of the Evidence Act is that, a tenant who has

been let into possession cannot deny his landlords titl e,

however defective it may be . Similarly, the estoppel

under Section 116 of the Evidence Act is restricted to the

denial of the title at the commencement of the tenancy.

Now reverting to the facts of the present case, we

find, admittedly the appellant were inducted into tenancy by

the predecessor of Respondent No.1 in 1962 and he continued

to pay rent to Respondent No. 1 since 1980. There is no

case or any evidence that since thereafter Respondent No. 1

lost his title to the disputed premises. On the contrary

denial of title in the present case is based on some

information that Devasthanam is the owner of the property

since inception. No case, Devastanam became owner of this

property

after 1962. In other words, the denial of title by

the appellant against his landlord is from the very

inception. This is forbidden under Section 116 of the

Evidence Act. So both on law and facts we do not find the

submissions for the appellant is sustainable. All the

courts below rightly concluded that denial of title by the

appellant was not bona fide and hence non payment of rent to

him amounts to wilful default.

Lastly, submission is there is no finding by the

courts below that denial of title by the appellant was not

bona fide. The submission has no merit. We find the trial

court very clearly recorded;

Since it was found that the allegation of the

respondent is disputing the title of the petitioner is mala

fide and motivated. I hold that the default committed by

the respondent in the payment of rent is wilful.

Thus, none of the contentions raised by learned

counsel for the appellant has any merit. All the courts

below also concurrently held that the disputed premises is

required for demolition and reconstruction. No illegality

worth consideration has been pointed out to set aside such

findings. In view of the aforesaid findings, we do not find

any merit in the present appeal and is, accordingly,

dismissed. Costs on the parties. At this time a request

was made by learned counsel for the appellant to grant some

time to the appellant to vacate the premises, since they are

in occupation of this premises since 1962. We heard learned

counsel for the parties. In the background of this case, we

grant six months time to the appellant to vacate the

premises in question from this date, on condition that he

submits a usual undertaking to the effect that he will hand

over peaceful possession of the disputed premises to the

respondent immediately at the expiry of this six months,

without creating any third party right. He shall file this

undertaking within four weeks from today before the trial

court.

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