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PETITIONER: KUNDAN MAL

       Vs.

RESPONDENT: GURUDUTTA

DATE OF JUDGMENT25/01/1989

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) KANIA, M.H.

CITATION:  1989 SCR  (1) 330        1989 SCC  (1) 552  JT 1989 (1)   147        1989 SCALE  (1)196

ACT:     Rajasthan  Premises (Control of Rent and Eviction)  Act, 1950:    Section   13(1)(f)--Tenant   denying    title    of landlord--When arises-Denial to be clear and in  unequivocal terms.

HEADNOTE:     The  appellant was inducted into the structure in  ques- tion by the owner in 1953. In 1969, the owner died and  some dispute  arose  between his legal  representatives  and  the respondent. The dispute was finally decided in favour of the respondent.  The appellant duly recognised him  as  landlord and started paying rent.     In  1973,  in  response to a notice  received  from  the Municipal  Authorities  asking him to  remove  the  disputed structure  on the ground that it was erected  on  Government land,  the appellant was forced to file a suit in the  Civil Court,  challenging the validity of the notice  and  praying for injunction against the Municipal authorities from inter- fering with his possession.     The  respondent  thereafter  filed a  suit  against  the appellant  on the grounds of default in payment of rent  and denial  of his title by him. It was alleged that the  appel- lant  had  challenged the respondent’s title in  the  plaint filed in the earlier suit. The case of default in payment of rent was rejected, but the suit was decreed on the ground of denial of title.     On  appeal, the Additional District Judge confirmed  the decree  and held that the statements in the plaint  amounted to disclaimer and, in any event, the appellant had failed to acknowledge the landlord’s title therein and consequently he was liable to eviction under cl.(f) of s. 13(1) of the  Act. The appellant’s second appeal was also rejected by the  High Court at the admission stage. Allowing the appeal,     HELD:  In providing disclaimer as a ground for  eviction of a tenant in cl.(f) of s. 13(1) of the Rajasthan  Premises (Control  of Rent and Eviction) Act, 1950,  the  Legislature decided to give effect to the 331 provisions  of cl.(g) of s. 111 of the Transfer of  Property Act,  1882.  The principle of forfeiture  on  disclaimer  is

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rounded  on the rule that a man cannot approbate and  repro- bate at the same time. Since the consequence of applying the rule is very serious, it must be held that the denial has to be clear and in unequivocal terms. [334C-D]     In  the  instant case, the 1973 suit  was  not  directed against any of the defendants excepting the Municipality and the statements in the plaint were made by way of giving  the background  in  which the impugned notice by  the  Municipal officers  had been issued. No relief against the  other  de- fendants  including the present respondent was  prayed  for. Even  interpreting the plaint in a manner as  favourable  to the  landlord as may be possible it has to be accepted  that the  document  cannot be construed to clearly deny  the  re- spondent’s  title  in unambiguous terms. One thing  that  is conspicuous is that the appellant did not claim any title in himself. He expressly described the character of his posses- sion  as  that of a tenant. Examining the entire  plaint  in this background the ground contemplated under s. 13(1)(f) of the Act is not made out. [334B, E-F]     Mohammad  Amir Ahmad Khan v. Municipal Board of  Sitapur and another, A.I.R. 1965 S.C. 1923, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1048  of 1980.     From the Judgment and Order dated 11.3.80 of the  Rajas- than High Court in S.A. No. 52 of 1980. S. Ganesh and P.H. Parekh for the Appellant. S.S. Khanduja for the Respondent. The Judgment of the Court was delivered by     SHARMA,  J.  This appeal by special  leave  is  directed against the decision of the Rajasthan High Court  confirming the  decree of eviction of the appellant from certain  prem- ises under s. 13(1)(f) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act),  on  the ground that he had denied the  title  of  the respondent-landlord. 2. The appellant has been in possession of the structure  in ques- 332 tion  since 1953, when he was inducted therein by the  owner one  Nawab M. Ali Khan. In 1969 Nawab M. Ali Khan died,  and it appears that some dispute arose between his legal  repre- sentatives  and  the present respondent no.  1.  It  further appears  that the dispute was finally settled in  favour  of the respondent no. 1 and according to the case of the appel- lant  he  duly recognised him as his  landlord  and  started paying  rent. In 1973 the appellant received a  notice  from the Municipal authorities asking him to remove the  disputed structures  on the ground that it was erected on  Government land.  According  to the appellant’s case,  the  notice  was issued  at  the instance of the respondent no.  1,  who  was anxious to evict the appellant. The appellant, in the situa- tion, was forced to file a suit in the civil court challeng- ing  the validity of the notice and praying  for  injunction against the Municipal authorities from interfering with  his possession.  The respondent no. 1 filed the present suit  on the twin Founds of default in payment of rent and denial  of his  title. The case of default in payment of rent  was  re- jected  but the suit was decreed on the ground of denial  of title.  On appeal, the Additional District  Judge  confirmed the decree. The appellant’s second appeal was also  rejected by the High Court at the admission stage.

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   3.  The appellant’s plaint in the earlier suit by  which it  is suggested that he challenged the  respondent’s  title was  filed  in the present case and marked as  Ext.  1.  The first  appellate  court  has  while  recording  its  finding against  the appellant observed that the statements  in  the plaint  amount to disclaimer and, in any event,  it  appears that  the  appellant failed to acknowledge  the  land-lord’s title  therein  and consequently he was liable  to  eviction under  clause  (f) of s. 13(1) of the Act,  which  reads  as follows:                        "13.  Eviction of tenants.--(1)  Not-               withstanding anything contained in any law  or               contract,  no Court shall pass any decree,  or               make  any  order,  in favour  of  a  landlord,               whether in execution of a decree or otherwise,               evicting  the  tenant (xxx) so long as  he  is               ready and willing to pay rent therefore to the               full  extent allowable by this Act, unless  it               is satisfied .-                  (a).............................................. ...                   ................................................ .                 (f)that the tenant has renounced his charac-               ter               as  such or denied the title of  the  landlord               and the               333               latter  has not waived his right  or  condoned               the conduct of the tenant; or" We do not agree. There is no statement in the plaint at  all challenging  the landlord’s right and there was no  occasion for  the appellant to deal with this aspect in view  of  the scope  of  his suit. On the other hand, the  pleading  shows that he described the nature of his possession as that of  a tenant and the interest of the present respondent no. 1, who was defendant no. 2 in that suit, as that of a landlord.     4.  Mr. S.S. Khanduja, the learned counsel for  the  re- spondent, relied on the last sentence of paragraph 1 of  the plaint,  as  mentioned below, and contended that  since  the defendant  no.  2 was not one of the heirs of  the  deceased Nawab M. Ali Khan, this sentence should be read as denial of his title:               "He  sold out some portion of his property  in               his life time and the remaining property  came               to be owned by his heirs i.e. defendants no. 2               to 6." Firstly  it has to be noticed that although  the  respondent was wrongly described as an heir, his title to the  property was  acknowledged. Further this sentence cannot be  read  in isolation.  The position is explained in paragraph 5 of  the above noted plaint in the following terms:               "5. That the land where the stall type  Kachhi               shops of the plaintiffs have been constructed,               the Defendant No. 2 has built his house  after               taking  the  land on a long  term  lease  from               Nawab  Mukarram  Ali Khan.  In  between  these               there  is  a Pakka ’Dola’.  There  is  dispute               about  the ownership of the land  between  the               Defendant  No. 2 and the Defendant No. 3 to  6               since the death of Nawab Mukarram Ali Khan  in               the  year 1969. Later on the matter  has  been               compromised  in  between the four  heirs,  the               Defendant No. 2 developed a bad motive and  he               wants  that  anyhow the plaintiffs  should  be

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             evicted from the premises as early as possible               and he. should occupy the same." The argument is that the title of the respondent  (defendant No.  2  in  the earlier case) was nowhere  accepted  in  the plaint.  After  mentioning the dispute between him  and  the legal  representatives of the deceased Nawab  the  appellant did not proceed to clarify the position. So far as 334 the statement in paragraph No. 1 of the plaint is concerned, the grievance is that the title of the landlord was  denied, if  not completely then at least in part by  describing  the defendants  3  to 6 as co-owners with him. We are not  in  a position to agree with the contention of the learned counsel that for these reasons the appellant has to be evicted. Even interpreting  the  plaint in a manner as favourable  to  the landlord as may be possible, it has to be accepted that  the document  cannot be construed to clearly deny  the  respond- ents’ title in unambiguous terms. One thing that is conspic- uous  is that the appellant did not claim any title in  him- self. We expressly described the character of his possession as that of a tenant. Is it in this situation permissible  to forfeit  his lease on the ground of disclaimer of title?  In providing disclaimer as a ground for eviction of a tenant in clause  (f) of s. 13(1) of the Act, the Legislature  decided to give effect to the provisions of clause (g) of s. 111  of the Transfer of Property Act. The principle of forfeiture on disclaimer  is rounded on the rule that a man cannot  appro- bate  and reprobate at the same time. Since the  consequence of  applying the rule is very serious, it must be held  that the  denial  has to be clear and in unequivocal  terms.  The decision of this Court in Mohammad Amir Ahmad Khan v. Munic- ipal  Board of Sitapur and another, A.I.R. 1965  S.C.  1923, relied  upon by the learned counsel for the appellant  high- lights  this aspect. The facts in that case would show  that the  tenant there had made statements against  his  landlord which were far more serious than those in the case before us and  still was not penalised. It may be appreciated that  in the present case the 1973 suit was not directed against  any of the defendants excepting the Municipality and the  state- ments  in the plaint referred to above were made by  way  of giving  the background in which the impugned notice  by  the Municipal  officers had been issued. No relief  against  the other defendants including the present respondent was prayed for.  Examining the entire plaint in this background we  are of  the  opinion  that  the  ground  contemplated  under  s. 13(1)(f)  of  the Act is not made out.  We,  therefore,  set aside  the  judgments of the courts below  and  dismiss  the suit. The appeal is accordingly allowed with costs  through- out. N.P.V.                                Appeal allowed. 335