S MOHINDER SINGH Vs. CHANDER SHEIKHER
LAWS(J&K)-2006-11-22
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 30,2006

S MOHINDER SINGH Appellant
VERSUS
Chander Sheikher Respondents

JUDGEMENT

- (1.) THE respondent -landlord has filed a suit for ejectment and for recovery of arrears of rent against the petitioner -tenant in the court below in respect of the demised premises leased out to petitioner -tenant on a monthly rental of Rs.250/ -, principally on the ground of personal necessity. The petitioner -tenant is contesting the suit on various grounds, however, he in his written statement has admitted the tenancy under the respondent -landlord at the monthly rental of Rs.250/ -.
(2.) IT is not in dispute that the petitioner -tenant has not paid the rent for the months of December 1998 upto ending June 1999 and, thus, an amount of Rs.1750/ - is outstanding against him towards the respondent -landlord. The respondent -landlord, therefore, filed an application under Section 12(4) of Houses & Shops Rent Control Act before the trial court for seeking a direction to the petitioner -tenant for paying or depositing the arrears of rent in the court and for also paying the future rent regularly.
(3.) THE petitioner -tenant without disputing the fact that he had not paid the said arrears of rent to the respondent -landlord contested the application on the ground that he cannot be held to be in arrears of rent because he has already paid an amount of Rs.7250/ - as rent for 29 months for the period commencing from December 1998 to ending April 2001 to one Parshotam Kumar, son of Sh. Sartan Ram, resident of Chabutra Bazar, Udhampur, who is alleged by him to be the paramount title holder of the demised premises. In his objections he took up the plea that the said paramount title holder had served a notice upon him that he had decided to terminate the tenancy of Dev Raj (respondent -landlord) and further directed him not to pay the outstanding rent from December 1998 to the respondent -landlord. Therefore, under the threat of eviction, he attorned to the paramount title holder. The learned trial court vide its order impugned dated 5.11.2003 has rejected the defence put forth by the petitioner -tenant and allowed the application of respondent -landlord with a direction to the petitioner -tenant to deposit the arrears of rent pending since December 1998 to October 2003, within a period of one month and fifteen days from the date of passing of the order and to pay the future rent at the stipulated rate before 15th day of every month to the respondent -landlord, being of the view that the petitioner -tenant after having admitted his tenancy under the respondent -landlord was estopped from disputing the title of his landlord while continuing in possession of the demised premises. Being aggrieved of the order, the petitioner -tenant has filed this revision petition. The contention of learned counsel for petitioner is that though it is a fact that the petitioner -tenant in his written statement has admitted his tenancy under the respondent -landlord, yet the rule of estoppel for denying his title under the threat of eviction extended by the paramount title holder could not apply. As the tenant had attorned to the paramount title holder on being put to notice and under the threat of eviction, therefore he cannot be held to be in arrears of rent against the respondent -landlord so as to become liable for an order under Section 12(4) of the Houses and Shops Rent Control Act. In support of his contention, he relies upon "D. Satyanarayana v. P. Jagadish, AIR 1987 SC 2192, wherein their Lordships held as follows: "Section 16 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 untill he surrenders his possession. The words "during the continuance of the 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 restricted 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. 4. The rule of estoppel embodied under S. 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. During the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlords title by mere assertion of such a right to the knowledge of the landlord. See : Bilas Kunwar v. Desraj Ranjit Singh, ILR (1915) 37 All 557 : (AIR 1915 PC 96) and Atyam Veerraju v. Pechetti Venkanna (1966) I SCR 831 : (AIR 1966 SC 629). The general rule is however subject to certain exceptions. Thus a tenant is not precluded from denying the derivative title of the persons claiming through the landlord. See : Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. AIR 1937 PC 251. Similarly, the estoppel under S. 116 of the Evidence Act is restricted to the denial of the title at the commencement of the tenancy. From this, the exception follows, that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title -holder. In order to constitute eviction by the title paramount, it has been established by decisions in England and in India, that it is not necessary that the tenant should be dispossessed or even that there should be a suit in ejectment against him. It will be sufficient if there was threat of eviction and if the tenant as a result of such threat attorns to the real owner, he can set up such eviction by way of defence either to an action for rent or to a suit in ejectment. If the tenant however gives up possession voluntarily to the title -holder, he cannot claim the benefit of this rule. When the tenancy has been determined by eviction by title paramount, no question of estoppel arises under S. 166 of the Evidence Act. See : Adyanath Ghatak v. Krishna Prasad Singh AIR 1949 PC 124. The principle must equally apply when the tenant has attorned under a threat of eviction by the title paramount and there comes into existence of new jural relationship of landlord and tenant as between them." ;


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