SINGHVI, J. - (1.) THIS Second Appeal of the tenant/appellant is directed against the judgment and decree dated 25. 1. 77 passed by the Munsif, Ajmer City (East), in Civil Suit No. 189/72 filed by the Respondents for rent and eviction which has been affirmed by the learned Additional District Judge No. 1, Ajmer vide his judgment dated 8. 10. 87 in Appeal No. 325/86 (134/77 ).
(2.) FACTS of this case are in a very narrow compass. The respondents, filed a suit for rent and eviction against the appellant on 29. 5. 72 in the Court of Munsif, Ajmer City (East ). The main ground for eviction was default in the payment of rent. In the written statement filed by the appellant/defendant on 15. 9. 72, he admitted the factum of himself being the tenant of Respondent/plaintiffs. He denied the allegation of default of payment of rent. The plaint was amended by the plaintiffs with the permission of the court and an amended written statement was filed by the appellant. In this written statement he stated that he is tenant of Suresh Chand Verma, father of the plaintiff/respondents who is the real owner of the premise and there is no privity of contract between the defendant and plaintiff No. l. He further stated that plaintiffs are not the land lord of the suit premises. There exists no valid deed conveying the suit property in favour of the plaintiffs and, therefore, the suit filed is not maintainable. The plaintiffs filed a rejoinder to the amended written statement and in para 1 (a) of the rejoinder the plaintiffs stated that the defendant is estopped from denying the title of the plaintiffs as laid down in section 116 of the Evidence Act. In para 4 of the rejoinder the plaintiffs stated that the defendant has denied the title of the plaintiffs or alternatively has renounced his character as tenant and, therefore, he is liable to be ejected on this ground alone. On the basis of all the pleadings of the parties the learned Trial Court framed as many as nine issues. A sum of Rs. 966. 50 was deposited by the tenant and suit of the Respondents/plaintiffs was dismissed so far as the ground for default was concerned. However, on the basis of evidence of Suresh Chand Verma P. W. 1 and Bishan Singh D. W. 1, the learned Trial Court decreed the suit of the Respondents on the ground of denial of the title of Respondents. The judgment and decree passed by the Trial Court has been affirmed by the learned Lower Appellate Court. In this second appeal the only question which has been raised is as to whether a decree for eviction of a tenant can be passed on the ground of denial of title of the landlord when such ground is not contained in the original plaint but in the rejoinder filed by the tenant in that suit itself. While arguing the appeal Shri Jain submitted that another important question of law which arises for consideration is as to whether in the facts and circumstances of the case there was at all a denial of title by the tenant. So far as the first question is concerned, it stands concluded by a decision of the Supreme Court in Majati Subbarao vs. P. V. K. Krishna Rao (1) and by a decision of Division Bench of this Court in Lallu Narayan vs. Ratan Chand Lunia In Majati Subbarao's case (supra) the question arose for consideration before their Lordships of the Supreme Court was as to whether ground of denial of title of the landlord can be raised in a rejoinder & could be made basis for passing an order of eviction. In that case the tenant had contested the application for eviction filed under Section 10 (2) (iv) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1969. In his reply the tenant stated that the applicant was not owner of the property and was not the landlord. The applicant filed a rejoinder and in that rejoinder he raised a ground for eviction of the premises that the tenant had denied the title. The Rent Controller passed an order of eviction on the ground of denial of title and also on other grounds. This order was affirmed by the Appellate Authority and also by the High Court. However, the High Court in its judgment upheld the order of eviction only on the ground of denial of title which was not a bona fide denial. On behalf of the tenant argued before the Supreme Court that the denial of title could give a ground for eviction in a subsequent suit and this ground was not available for the landlord in the same suit/proceedings. This argument was repelled by the Supreme Court. Their Lordships observed that contention that the denial of the title would only entitle the respondent to forfeit the lease but in order to be a ground for eviction in a suit that forfeiture must precede the suit of petition for eviction, is untenable. Whereas under the Transfer of Property Act in order to recover possession of the leased premises determination of the lease is a condition precedent, under the Rent Act the landlord becomes entitled to recovery of possession on fulfilment of the conditions laid down therein. Their Lordships further observed that though normally the respondent should have applied for amendment of his plaint and incorporated the ground of denial of title therein in order to get relief on that ground which had arisen after the eviction petition was filed, but in this case the trial court, namely, the Rent Controller, framed an issue as to whether the tenant's denial of the landlord's title to the schedule property including the said premises was bona fide. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition. In Lallu Narayan's case (supra) the Division Bench of this Bench has gone a step further when it observed that the landlord can seek eviction on the grounds mentioned in Sec. 13 (1) of 1950 Act even in the absence of a specific pleading and issue if the parties went to trial on that ground when no real prejudice is having been shown to be caused. So far as the present case is concerned, the facts mentioned above clearly show that initially the tenant had admitted the respondents/plaintiffs to be his landlord. Only in his amended written statement he denied the title of the landlords. In his statement made before the Trial Court on 27. 7. 76 he stated that the disputed premises was given on lease by Suresh Chand Verma. He does not know the plaintiffs. A specific issue has been framed on the basis of denial of title of the plaintiff/respondents & the evidence produced by the plaintiffs as well as by the defendant clearly show that the rent receipts had been issued by Sushila Verma. The notice of termination of tenancy was signed by Sushila Verma and even the money order has been sent by the tenant to Sushila Verma. It is, therefore, clear that not only a specific plea has been raised by the landlords in their rejoinder but a specific issue have been framed and the parties were aware of the controversy. Evidence was led and a finding of fact has been recorded by the learned Trial Court. It cannot, therefore, be said that any prejudice has been suffered by the tenant on account of the failure on the part of the landlords to raise a plea of denial of title in the plaint itself. Thus in my opinion the first argument advanced by the learned counsel for appellant cannot be accepted. Coming to the second question, it must at once be observed that in the original written statement the tenant has categorically admitted that he was tenant of the plaintiffs/respondents. In his amended written statement he denied the factum of tenancy under the Respondents and pleaded that Suresh Verma was the real owner of the suit premises and was the landlord. Thus the denial of title of the plaintiffs/respondents by the tenant/appellant is explicit, unequivocal and categorical. In the rejoinder the plaintiffs/respondents raised a specific plea that the tenant was estopped from denying the title of the defendants as laid down in Sec. 116 of the Evidence Act and in para 4 they raised a plea that he is liable to ejectment. This question has been examined in length by S. C. Agrawal, J. (as he then was) in Lallu Narain vs. Ratan Chand Lunia (supra ). This is the same case which was decided by the Division Bench in in 1989 (1) RLR 475 (3) while answering the three questions referred to it by the learned Single Judge. Agrawal, J. took notice of the judgment of the Supreme Court in Raja Mohammed Amir Ahmad Khan v. Municipal Board of Sitapur and another (4) and Kundanmal vs. Gurudutta (5) and then held that where from the pleadings the unequivocal denial is established the Court was entitled to pass a decree even in the absence of a specific issue. The judgment of the Supreme Court in Kundan Mal vs. Gurudutta (6), to which Justice AGRAWAL made a reference in Lallu Narain vs. Ratan Chand's case (supra), the facts were that the appellant was in possession of the structure in question since 1953, when he was inducted therein by the owner one Nawab M. Ali Khan. Some dispute arose between his legal representative and the present respondent No. 1. The dispute was settled in favour of Respondent No. 1 and the appellant recognized 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 structure on the ground that it was erected on Government land. The appellant filed a suit against the Municipal authorities and therein he pleaded that Respondent No. l was instrumental in issuance of notice before the Municipal authorities because he wanted eviction of the appellant. Thereafter Respondent No. l filed a suit against the appellant on the ground of default or denial of title. The suit was decreed on the ground of denial of title and in appeal the learned Additional District Judge confirmed the decree. The High Court dismissed the second appeal at the stage of admission. While reversing the decision of the three Courts their Lordships of the Supreme Court observed that so far as statement in para 1 of the plaint is concerned, the grievance that the title of the landlord was denied partially, was not correct. The Court observed that "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 respondents; title in unambiguous terms. " "he expressly described the character of his possession as that of a tenant. " On the basis of this conclusion their Lordships held that there was no denial of title by the tenant. In my opinion the facts of that case were very much different than the facts and circumstances containing in this case. Here, as already observed, both the Courts below have come to a categorical finding of fact that there has been denial of the title & by reading of the amended written statement together with the statement of DW1, I am convinced that Courts below have not committed any error. I find no merit in the appeal which is hereby dismissed. .;