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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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