@JUDGMENTTAG-ORDER
Pradeep Nandrajog, J.—In November 2011, claiming to be the owners of Shop No.25 in property No.1520/2, Bhagirath Palace, Chandni Chowk, Delhi, the respondents filed an application under Section 19 of The Slum Areas (Improvement and Clearance) Act, 1996, impleading therein the appellant as a respondent; pleading that the previous recorded owner of the property: Ms. Meeru Nagpal sold the same along with an adjoining shop to the respondents. Being a tenant in Shop No.25, the appellant paid rent from April 09, 2010 to March 31, 2012 to the respondents @ Rs.136/- per month vide cheque No.235056 dated October 23, 2010 in sum of Rs.3,228/- drawn on ICICI Bank Ltd., branch Chandni Chowk for which the respondents issued a receipt. It was pleaded that the respondents seek permission to evict the appellant on account of having made unauthorized additions/alterations in the tenanted premises.
2. In the reply filed to the said petition, the appellant admitted Ms. Meeru Nagpal as the owner of the shop. In para 2 of the written statement, it was pleaded :-
"2. That the contents of Para 2 of the petition are wrong and denied. It is denied that Smt. Neeru Nagpal sold the said shop No.25 to the petitioner vide sale deed dated 09th April 2010. It is denied that the petitioner is the owner of the shop No.25 in any manner."
3. Concerning the averments that after the respondents purchased the property from the previous owner the appellant attorned and paid rent for the months of April 09, 2010 to March 31, 2012, the appellant responded as under:-
"5. That the contents of Para 5 of the petition are admitted to the extent that the respondent has paid the rent to the petitioner as her being the landlord without admitting her as the owner of the shop in Question. Rest of the para are wrong and denied."
4. The respondents withdrew the petition filed before the Competent Authority under the Slum Act, for according to the respondents, by denying the title of the respondents i.e. ownership the appellant had forfeited the tenancy and thus status of the appellant qua the property would be that of a trespasser.
5. The respondents filed a suit thereafter on the Original side of this Court seeking a decree of possession against the appellant in respect of Shop No.25, situated in property No.1520/II, Bhagirath Place, Chandni Chowk, Delhi. Damages and mesne profits were also prayed for. The appellant was described as a trespasser and ownership of the property was claimed by the respondents. As per the plaint the property belonged to a partnership firm M/s. Munnalal Ram Richpal which sold the same to one Sudhir Kumar Garg, Adhir Garg, Praveen Kumar and Sons, who in turn sold the same to Meeru Nagpal. Respondents claimed further title through Meeru Nagpal. Without stating as to which predecessor-in-interest inducted the appellant as a tenant, it was pleaded that a predecessor-in-interest inducted the appellant as a tenant in the suit property at a rent of Rs.136/- per month. On being informed that title had been acquired by the respondents the appellant started paying the rent to the appellant. That being the owner and landlord of the suit property the respondents filed a petition under Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 seeking permission from the competent authority to evict the appellant from the suit premises on ground of unauthorized additions and alterations in the tenanted premises, in which proceedings the appellant denied title of the respondents and claimed not to be a tenant under the respondents and thus in law the tenancy stood determined by forfeiture and the result was the status of the appellant being lost as a tenant, resulting in the appellant being a trespasser.
6. In the written statement filed the appellant pleaded that the building was owned by M/s. Bhagirath Mal & Sons who inducted the appellant as a tenant. Ownership was acquired by M/s. Munna Lal Ram Richpal to whom the appellant attorned. It was denied that the respondents acquired title from Meeru Nagpal. It was also denied that Meeru Nagpal purchased the property from Sudhir Kumar Garg, Adhir Garg and Praveen Kumar and Sons. It was admitted that on receipt of a letter dated October 13, 2010 the appellant started paying the rent to the respondents. It was denied that the pleadings of the appellant before the competent authority amounted to a determination by forfeiture of the lease.
7. Issue between the parties arising out of the pleadings before the competent authority (slum), without recording evidence as consented to by parties, the learned Single Judge proceeded to determine the core issue : whether the written words of the appellant resulted in the lease being determined by forfeiture. The verdict is obviously in favour of the respondents and against the appellant.
8. Section 111(g) of the Transfer of Property Act, 1882 reads as under:-
"111. A lease of immovable property determines �
(a) to (f)...
(g) by forfeiture; that is to say, (1) in case the lessee breaks and express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease."
9. A lease of immovable property is determined by forfeiture as contemplated by the clause under three circumstances. (i) The lessee breaks an express condition which provides that on breach thereof the lessor may re-enter; (ii) In case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (iii) The lessee is adjudicated as insolvent and the lease provides that the lessor may re-enter on the happening of such event.
10. It is trite that it is an implied condition of every lease that the tenant cannot expressly or impliedly deny that landlord''s title or prejudice the title by doing an act which is inconsistent with the existence of the tenancy. See Law of landlord and tenant (4th Edition at P.89) by Evans and Smith. Disclaimer of the landlord''s title is treated analogous to the repudiation of a contract, and since the consequences are severe, Courts have insisted on strict proof of disclaimer. A mere non-acceptance of title as distinct from denial of a title, may or may not amount to a plea of disclaimer, and the plea of the lessee has to be seen carefully.
11. The second part of the clause in question guides that the lessee renounces his character only if he sets up a title in a third person or claims title in himself. The legislative intent codifies the common law principle stated in the decision reported as (1840) 1 Scott NR 36 Williams and Jeffery v. Cooper in which Tindal, CJ stated : ''a disclaimer, as the word imports must be a renunciation by the party of his character of tenant, even by setting up a title in another, or by claiming title in himself''. Meaning thereby the tenant sets up a title hostile to the landlord by claiming title in himself or the tenant assists another person to set up such a claim. As was held in the decision reported as (1835-42) ALL ER 290 Doe d Gray v. Stanion, the language, verbal or written, concerning the disclaimer must be of a kind that it amounts to a direct repudiation of the landlord-tenant relationship or it may be a distinct claim to hold possession of the estate, upon a ground wholly in consistence with the existence of the relationship which is a repudiation of such relationship by necessary implication. Thus, a mere omission to acknowledge the landlord as such by requesting further information was treated in said decision as not enough to justify repudiation.
12. In the decision reported as (2002) 3 SCC 375 Sheela & Ors. v. Firm Prahalad Rai Prem Prakash, the respondent firm sued for eviction of the appellant on the plea that the suit property was owned by Late Khetsidas, who inducted the appellant as a tenant. He had adopted Prahalad Rai as a son and had executed a will bequeathing his property to Prahalad Rai who was blessed with two sons Prem Prakash and Pawan Kumar. The father and the two sons constituted the partnership firm Prahalad Rai Prem Prakash. Claiming to be the owner, appellant''s ejectment was sought invoking clause (f) and (h) of sub-Section 1 of Section 12 of M.P. Accommodation Control Act, 1961, pleading that the accommodation was required bona-fide by the firm for purpose of continuing the business and secondly the accommodation was required bona-fide for purpose of re-building which could not be carried out without the accommodation being vacated. In the written statement, the appellant pleaded that the firm was not the owner of the premises and therefore could not maintain the action, although at different places in the written statement it was admitted that after death of Khetsidas the rent was paid to the firm. Clauses (c), (f) and (h) of sub-Section 1 of Section 12 of the M.P. Accommodation Control Act, 1961 read as under :-
"12. Restriction on eviction of tenants �
(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely -
(a) � (b) x x x
(c) that the tenant or any person residing with him has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the interest of the landlord therein:
(d) � (e) x x x
(f) that the accommodation let for non-residential purpose is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned;
(g) x x x
(h) that the accommodation is required bona fide by the landlord for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or re-building or alterations cannot be carried out with the accommodation being vacated."
13. Of the several issues framed by the learned Trial Court, one issue was : Whether the defendant/tenant had denied the title of the landlords, and if so, to what effect. On this issue of disclaimer the Trial Court found that the defendant had disputed the derivative title of the plaintiff which the defendant could do without incurring the wrath of Section 12(1) (c) of the Act. Holding that the landlord-tenant relationship between the firm and the tenant was not established, the suit was dismissed. In appeal the First Appellate Court held in favour of the firm on the ground of disclaimer and ordered eviction under Section 12(1)(c) of the Act. The second appeal failed. Matter reached the Supreme Court. Of the various issues discussed relevant for the purposes of the present decision would be the issue of disclaimer. Para 12 and para 16 of the decision are important. They read as under:-
"12. It is pertinent to note that denial of title of the landlord or disclaimer of tenancy is not as such set out as a ground on which tenant may be evicted under Section 12 of the Act. Section 12(1)(c) provides inter alia that a tenant incurs liability for eviction if the tenant or any person residing with him has done any act which is likely to affect adversely and substantially the interest of the landlord therein. A tenant''s denial of the landlord''s title and/or disclaimer of tenancy has been held to be an act which is likely to affect adversely and substantially the interest of the landlord. In a series of decisions, the High Court of Madhya Pradesh has consistently taken this view and we see no reason to make a departure therefrom. It has to be seen how and in what manner a denial of title or disclaimer by tenant would attract applicability of Section 12(1)(c) of the Act? In our opinion, the denial or disclaimer to be relevant for the purpose of Section 12(1)(c) should take colour from Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, 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. This estoppel so long as it binds the tenant excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule. Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact-situations which entail the lessee having renounced his character as such and they are: (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself. In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord.
13. The law as to tenancy being determined by forfeiture by denial of the lessor''s title or disclaimer of the tenancy has been adopted in India from the Law of England where it originated as a principle in consonance with justice, equity and good conscience. On enactment of the Transfer of Property Act, 1882, the same was incorporated into clause (g) of Section 111. So just is the rule that it has been held applicable even in the areas where the Transfer of Property Act does not apply (See : Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur and Anr. AIR 1965 SC 1923). The principle of determination of tenancy by forfeiture consequent upon denial of the lessor''s title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognize such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. However, in various rent control legislations such a ground is recognised and incorporated as a ground for eviction of tenant either expressly or impliedly by bringing it within the net of an act injurious to the interest of the landlord on account of its mischievous content to prejudice adversely and substantially the interest of the landlord."
14. Suffice it to highlight that the Supreme Court emphasized Section 12(1)(f) of the Act in para 18 of the decision to bring home the point that since eviction was sought invoking said provision of law, the issue of ownership was relevant, and on the pleadings held that the defendant simply demanded proof of ownership. But the observations in para 16 are relevant. The legal principle would be that where a tenant bona-fide seeks information regarding title of the landlord to protect himself from eviction keeping in view the language of a Rent Control statue, the tenant cannot be charged with disclaiming the landlord''s title but where the disclaimer is done not with this object but with an express repudiation of the tenancy under the landlord, it would operate as forfeiture.
15. It would thus be a question of fact what intention underlines the words or the actions of a tenant, whether in fact he is definitely asserting a title adverse to the landlord, or as the case may be, intending to enable someone else to set up such a title. As held in para 16 of the judgment in Sheela''s case (supra), a denial of title which falls foul of the rule of estopple contained in Section 116 of the Evidence Act is considered in law a malicious act on the part of the tenant as it is detrimental to the interest of the landlord and does no good to the lessee himself.
16. In Sheela''s case since one ground of eviction on which Eviction Petition was filed by the landlord required ownership of the tenanted premises to be proved the Supreme Court did not find fault with the tenant insisting upon the plaintiff firm proving title. The plea of denial of title in the form of requiring evidence to prove the title was held to be a bona-fide plea.
17. In the instant case permission sought from the competent authority under the Slum Act to initiate eviction proceedings against the appellant merely expressly stated that eviction would be claimed on the ground of unauthorized construction made by the appellant. As per the Delhi Rent Control Act, 1958 it is the right of the landlord, sans proof of ownership, to evict a tenant who makes unauthorized constructions in the tenanted premises. The pleadings before the Slum Authority of the appellant denied the respondents to be the owner of the property by denying the sale-deed dated April 09, 2010 executed by Ms. Meeru Nagpal in favour of the respondents. Thus, effectively the appellant pleaded that Ms. Meeru Nagpal would be the owner of the shop in question. In the same breathe the appellant acknowledged having paid rent to the respondents as being the landlord.
18. The plea before the competent authority slum lacks bona-fide and in view of the principles of law noted above would amount to a determination of the tenancy by forfeiture.
19. Learned counsel for the appellant cited the authorities reported as (1977) 2 SCC 88 Lal Chand (Dead) by LRs & Ors. v. Radha Krishan and ILR 1970 1 Delhi 768 C.R.Abrol v. Administrator Under the Slum Areas & Ors. to urge that where a tenant denies landlord tenant relationship in a proceeding initiated by a petitioner under Section 19 of the Slum Act claiming to be the landlord and the respondent a tenant, the Competent Authority is clothed with the power to decide the plea.
20. There is no quarrel with said preposition of law, but that does not mean that the person claiming to be the landlord cannot proceed by filing a civil suit by relying upon the pleadings of the tenant before the competent authority slum and if in said civil proceedings can show that the nature of the pleading by the tenant is of a kind which results in determination of the tenancy by forfeiture. If the person succeeds, that would be the end of the matter to the benefit of the landlord. If he fails, the right to proceed under the Rent Control Legislation or any other law on the basis of a landlord tenant relationship would be lost to the landlord because the mandate of law is that a landlord can evict a tenant in a slum area in Delhi only after obtaining permission from the competent authority slum.
21. The appeal is accordingly dismissed.
CM No.3715/2016
1. Being declared a trespasser and evicted from the suit premises, the appellant has a stay of execution in its favour. The respondents seek direction against the appellant to pay damages from the date of the decree till when the appeal is decided.
2. Unfortunately no evidence was led in the suit qua rentals in the area. The only way forward is to direct an inquiry to be made under Order 20, Rule 12 (c).
3. Parties shall appear before the Registrar on March 06, 2017. The respondents would file the list of witnesses and such documents on which it relies to prove the rentals in the area where-from mesne profits can be computed. The appellant would also be entitled to lead evidence in rebuttal. After the evidence is recorded the application would be listed before the Court.
