KESHAR BAIversusCHHUNULAL

                         (2014) 1 S.C.R. 166


A                            KESHAR BAI
                                   v.
                             CHHUNULAL
                    (Civil Appeal No.106 of 2014)

                         JANUARY 7, 2014.
B
                [RANJANA PRAKASH DESAI AND
                    J. CHELAMESWAR, JJ.]

        MADHYA PRADESH ACCOMMODATION CONTROL
C ACT, 1961:
        s. 12(1 )(c) -- Suit for eviction - Tenant denying title of
  landlord - Held: Under s. 111 (g) of Transfer of Properly Act,
  lease is determined by forfeiture, if lessee denies lessor's title
0 -- Denial of landlord's title or disclaimer of tenancy by tenant
  is an act which is likely to affect adversely and substantially
  the interest of landlord -- It is, therefore, covered bys. 12(1)(c)
  - In the instant case, there are several documents on record
  relating to ownership of appellant, aparl from registered sale
E deed, yet, respondent refused to acknowledge appellant's title
  -- He denied it in his evidence -- In eviction proceedings the
  question of title to the properties in question may be
  incidentally gone into, but cannot be decided finally- s. 116
  of Evidence Act is clearly applicable to such a situation --
  High Courl erred in setting aside the concurrent finding of fact
F recorded by courls below that respondent had denied title of
  appellant -- Impugned judgment of High Courl is set aside
  and eviction decree passed by trial courl and confirmed by
  first appellate court u/s 12(1 )(c) is restored -- Transfer of
  Properly Act, 1882 - s. 111 (g) - Evidence Act, 1972 - s. 116
G - Appeal.

        CODE OF CIVIL PROCEDURE, 1908:

        s.100 - Second appeal - Jurisdiction of High Courl -
H                                 166
               KESHAR BAI v. CHHUNULAL                       167

  Held: High Court should not interfere with a concurrent finding   A
  of fact unless it is perverse.

     The appellant purchased a building, which included
 a room (suit premises) occupied by the respondent as a
 tenant. The respondent was informed of the transaction.            8
 When in spite of notice, the respondent did not pay the
 rent, the appellant filed a suit under the M.P.
 Accommodation Control Act, 1961 on the grounds of non-
 payment of rent, denial of title, bona fide need etc. The
 respondent filed a written statement denying the title of          C
 the appellant, any attornement between the parties as also
 any landlord-tenant relationship between him and the
 appellant. He even denied the genuineness of the sale
 deed. The trial court recorded a finding that the
 respondent-tenant denied the title of the appellant-
 landlady and, accordingly, cJecreed the suit uls 12(1)(c)          D
 of the Act. The decree was confirmed by the first
 appellate court. However, the High Court set aside the
 eviction decree holding that in the facts of the case no
 decree uls 12(1)(c) of the Act could be passed.
                                                                    E
      Disposing of the appeal, the Court

      HELD: 1.1. It is well settled that the High Court should
 not interfere with a concurrent finding of fact unless it is
 perverse. In the instant case, there is no perversity in the       F
 concurrent finding of fact returned by the courts below
 warranting the High Court's interference. [Para 9] [173-B]
  I

   ,    Deep Chandra Juneja v. Lajwanti Kathuria (dead)
/. through LRs. 2008 (10) SCR 684 = (2008) 8 SCC 497; Yash
   Pal v. Ram Lal & Ors. (2005) 12 SCC 239; and Firojuddin &        G
   Anr. v. Babu Singh (2012) 3 sec 319 - relied on.

      State of Andgra Pradesh & Ors. v. D. Raghukul
  Pershad(dead) by LRs. & Ors. 2012 (6) SCR 1176 (2012) =
  8 sec 584 - cited.
                                                                    H
    168     SUPREME COURT REPORTS             [2014] 1 S.C.R.

A      1.2. Under s. 111 (g) of the Transfer of Property Act,
  1882, the lease is determined by forfeiture, if the lessee
  denies the lessor's title. Denial of landlord's title or
  disclaimer of tenancy by tenant is an act which is likely
  to affect adversely and substantially the interest of the
8 landlord. It is, therefore, covered bys. 12(1)(c) of the M.P.
  Act. [Para 11] [174-A and C]

        Devasahyam v. P. Savithramma 2005 (3) Suppl. SCR
    255 = (2005) 7 sec 653 - relied on.

C       Sheela v. Prahlad Rai Prem Prakash 2002 (2) SCR
    177 = (2002) 3 SCC 375 Raja Mohammad Amir Ahmad Khan
    v. Municipal Board of Sitapur AIR 1965 SC 1923 - cited.

       1.3. In the instant case, there are several documents
0 on  record  relating to the ownership of the appellant, apart
  from the registered sale deed. Yet, the respondent
  refused to acknowledge the appellant's title. He denied
  it in his written statement and evidence. The High Court
  has accepted that in his cross-examination the
E respondent has stated that he was not accepting the
  appellant as his landlady. Even denial of a landlord's title
  in the written statement can provide a ground for eviction
  of a tenant. It is also settled position in law that it is not
  necessary that the denial of title by the landlord should
  be anterior to the institution of eviction proceedings.
F [Para 13] [176-8, D and F]

        Majati Subbarao v. P. V K. Krishnarao(deceased) by LRs.
    1989 (1) Suppl. SCR 153 = (1989) 4 sec 732 - relied on.

G     1.4. The High Court has expressed that the
  respondent was justified in asking the appellant to
  produce the documents. Implicit in this observation is the
  High Court's view that the respondent could have in an
  eviction suit got the title of the appellant finally
H adjudicated upon. There is a fallacy in this reasoning. In
            KESHAR BAI v. CHHUNULAL                     169

eviction proceedings the question of title to the properties   A
in question may be incidentally gone into, but cannot be
decided finally. Section 116 of the Evidence Act is clearly
applicable to such a situation. [Para 14] (176-H; 177-A-B
and DJ
                                                               B
    Bhogadi Kannababu & Ors. v. Vuggina Pydamma & Ors.
                         =
2006 (2) Suppl. SCR 352 (2006) 5 SCC 532; and Tej Bhan
Madan v. II Additional District Judge and Ors. (1988) 3 SCC
137 - relied on.

     Mohd. Nooman & Ors. v. Mohd. Jabed Alam & Ors. 2010       C
(11) SCR 729 = (2010) 9 SCC 560 - held inapplicable.

     1.5. The High Court erred in setting aside the
concurrent finding of fact recorded by the courts below
that the respondent had denied the title of the appellant.     o
The case is covered bys. 12(1)(c) of the M.P. Act. In the
circumstances, the impugned judgment of the High Court
is set aside and eviction decree passed by the trial court
and confirmed by the first appellate court u/s 12(1)(c) of
the M.P. Act is restored. [Para 16] [179-A-C]                  E
                    Case Law Reference:
    2008 (10) SCR 684           relied on         para 7
    (2005) 12 sec 239           relied on         para 7
                                                               F
    (2012) 3 sec 319            relied on         para 7
    2012 (6) SCR 1176           cited             para 7
    2005 (3) Suppl. SCR 255 relied on             para 7
    2002 (2) SCR 177            cited             para 11      G

    AIR 1965 SC 1923            cited             para 11
    1989 (1) Suppl. SCR 153 relied on             para 13
    2006 (2) Suppl. SCR 352 relied on             para 7       H
    170       SUPREME COURT REPORTS             [2014] 1 S.C.R.


A         (1988) 3 sec 131          relied on          para 14

          2010 (11) SCR 729         held inapplicable     para 8

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 106
    of 2014.
8
        From the Judgment & Order dated 03.08.2010 of the High
    Court of Madhya Pradesh, Bench at Indore in Second Appeal
    No. 756 of 2004.

     Ardhendumauli Kumar Prasad, Aviral Shukla, Nirnimesh
C Dube for the Appellant.

       Amit Pawan, Bharat Singh, Vivek Srivastava for the
    Respondent.

D         The Judgment of the Court was delivered by

        (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
    granted.

      2. This appeal, by grant of special leave, is directed
E against the judgment and order dated 03/08/2010 passed by
  the High Court of Madhya Pradesh, Bench at Indore allowing
  Second Appeal No. 756 of 2004 filed by the respondent.

       3. Briefly put, the facts are that the appellant-landlady
F purchased House No. 1/2, Street No. 6, Parsi Mohallah, Indore
  ('the said building') from Mis. Pyare Mohan Khar, Hari Mohan
  Khar, Shayam Sunder Khar and Anil Khar predecessors-in-title
  of the appellant by a registered sale deed dated 26/9/1991 for
  a consideration of Rs. 1,70,000/-. At the time of purchase of
  the said building, tl'e respondent-tenant was occupying one
G room ('suit premises') situated on the rear side of the said
  building as tenant. The respondent was informed by the
  predecessors-in-title of the appellant that the appellant is the
  new landlady of the said building and he should pay the rent to
  her. The respondent agreed to pay the rent but failed to pay it.
H Failure of the respondent to pay the rent resulted in a notice
              KESHAR BAI v. CHHUNULAL                        171
            [RANJANA PRAKASH DESAI, J.]
being sent by the appellant to him on 23/11/2002, but despite        A
the notice the respondent did not pay the rent.

     4. On 06/1 /2003, the appellant filed a suit for eviction· of
the respondent under the M.P. Accommodation Control Act,
1961 ('the M.P. Act') on grounds of non-payment of rent, denial      8
of the appellant's title by the respondent, bona fide need for
residential purpose and reconstruction of the said building as
it had become unsafe for human habitation. It was specifically
averred in the plaint that the appellant had purchased the said
building vide a registered document on 26/9/1991.
                                                                     c
      5. The respondent contested th.e said suit and filed a
written statement denying the title of the appellant as well as
the grounds on which his eviction from the suit premises was
sought. The respondent denied that there was any attornement
between the parties and that there was a landlord-tenant             D
 relationship between him and the appellant. He claimed to be
tenant of the earlier landlord Shri Khar. He contended that he
had never paid any rent to the appellant. He denied the
genuineness of the registered sale deed dated 26/9/1991.
                                                                     E
       6. The trial court decreed the suit under Section 12(1 )(c)
  of the M.P. Act. The suit was dismissed so far as the other
  grounds are concerned. The trial court's judgment was
  confirmed by the first appellate court. The High Court by the
  impugned order set aside the eviction decree passed by the         F
  courts below holding that in the facts of the case no decree
  under Section 12 (1) (c) of the M.P. Act could be passed. The
. controversy, therefore, revolves around Section 12(1)(c) of the
  M.P. Act in the context of the facts of this case.

     7. Shri Ardhendumauli Kumar Prasad, learned counsel for         G
the appellant, submitted that both the courts having concurrently
found that the landlord was entitled to a decree of eviction under
Section 12(1)(c) of the M.P. Act and since there was no
perversity attached to the said finding, the High Court ought not
to have interfered with it while dealing with a second appeal,       H
    172        SUPREME COURT REPORTS              [2014] 1 S.C.R.


A particularly, when there was no substantial question of law
  involved in the matter. In this connection, he relied on Deep
  Chandra Juneja v. Lajwanti Kathuria {dead) through LRs., 1
  Yash Pal v. Ram Lat & Ors2. and Firojuddin & Anr. v. Babu
  Singh. 3 Mr. Prasad submitted that it is clearly established from
B the evidence on record that the respondent had denied the title
  of the appellant and, therefore, the case clearly falls within the
  ambit of Section 12(1)(c) of the M.P. Act. The eviction decree
  was, therefore, correctly passed by the trial court and confirmed
  by the first appellate court. In this connection he relied on
c Devasahyam v. P. Savithramma4, State of Andgra Pradesh
  & Ors. v. D. Raghukul Pershad{dead) by LRs.& Ors5• and
  Bhogadi Kannababu & Ors. v. Vuggina Pydamma & Ors. 6.
  Counsel submitted that in the circumstances the impugned
  order be set aside.
D
       8. Shri Amit Pawan, learned counsel for the respondent,
  on the other hand submitted that attornment of tenancy to the
  appellant is not proved. Counsel submitted that the respondent
  had no knowledge about the sale transaction that allegedly took
  place between the appellant and Shri Khar, under which the
E appellant is said to have purchased the suit premises. This is
  a case of derivative title which the tenant can deny if he had
  no knowledge of the sale transaction. Counsel submitted that
  the trial court and lower appellate court ignored this vital legal
  position and, therefore, the High Court rightly set aside the
F eviction decree. Counsel relied on Mohd. Nooman & Ors. v.
  Mohd. Jabed Alam & Ors. 7 in support of his submission that


    1.   (2008) 8 sec 497.
G 2. (2005) 12 sec 239.
    3.   c2012) 3 sec 319.
    4.   (2005) 7 sec 653.
    5.   c2012) 8 sec 584.
    6.   (2006) 5 sec 532.
H 7. c2010) 9 sec 560.
             KESHAR BAI v. CHHUNULAL                           173
           [RANJANA PRAKASH DESAI, J.]
                                                                               •
the issue regarding title can be decided in an eviction suit and,          A
therefore, it was correctly raised by the respondent.

      9. It is well settled by a long line of judgments of this Court
that the High Court should not interfere with a concurrent finding .
of fact unless it is perverse. (See: Deep Chandra Juneja, 8
Yash Pal & Firojuddin). In this case, for the reasons which we
shall soon record, we are unable to find any such perversity in
the concurrent finding of fact returned by the courts below
warranting the High Court's interference.

      10. The trial court passed the decree under Section 12               C
(1 )(c) of the M.P. Act on the ground that the respondent-tenant
denied the title of the appellant-landlady. It was confirmed by
the first appellate court. It is, therefore, necessary to reproduce
Section 12(1) (c) of the M.P. Act. It reads as under:
                                                                           D
     "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 cou.rt against a
     tenant for his eviction from any accommodation except on
     one or more of the following grounds only, namely-
                                                                           E
     (a) xxx

     (b) xxx

     (c) that the tenant or any person residing with him has
                                                                           F
     created 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:

     Provided that the use by a tenant of a portion of the                 G
     accommodation as his office shall not be deemed to be
     an act inconsistent with the purpose for which he was
     admitted to the tenancy;"

     11. The first question that arises is how denial of title falls       H

                                                                       \
        174        SUPREME COURT REPORTS               [2014] 1 S.C.R.


A within the ambit of Section 12(1)(c) of the M.P. Act. Under
  Section 111 (g) of the Transfer of Property Act, 1882, the lease
  is determined by forfeiture, if the lessee denies the lessor's title.
  While dealing with eviction suit, arising out of the M.P. Act, in
  Devasahayam, this Court has held that so just is the above rule
B that in various rent control legislations such a ground is
  recognized and incorporated as a ground for eviction of a
  tenant either expressly or impliedly within the net of an act
  injurious to the interest of the landlord. It is further held that
  denial of landlord's title or disclaimer of tenancy by tenant is
c an act which is likely to affect adversely and substantially the
  interest of the landlord. It is, therefore, covered by Section
  12(1)(c) of the M.P. Act. The following obseNations of this Court
  in Devasahayam are relevant:

              "27. In Sheela v. Prahlad Rai Prem Prakash 8 whereupon
D             Mr. Nageswara Rao placed strong reliance, Lahoti, J., as
              the learned Chief Justice then was, while construing the
              provisions of clause (c) of sub-section (1) of Section 12
              of the M.P. Accommodation Control Act, 1961 obseNed:

E             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
F
              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 Sitapur9.) The
              principle of determination of tenancy by forfeiture
G
              consequent upon denial of the lessor's title may not be
               applicable where rent control legislation inteNenes and
               such legislation while extending protection to tenants from
        a.   (2002) 3 sec 375.
H 9.         AIR 1965 SC 1923.


    I
                 KESHAR BAI v. CHHUNULAL                          175
               [RANJANA PRAKASH DESAI, J.]
        eviction does not recognise such denial or disclaimer as          A
        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 express;ly or impliedly by bringing it within
        the net of an act injurious to the interest of the landlord on    B
        account of its mischievous content to prejudice adversely
        and substantially the interest of the landlord.



                                                                          c
        17. In our opinion, denial of landlord's title or disclaimer
        of tenancy by tenant is an act which is likely to affect
        adversely and substantially the interest of the landlord and
        hence is a ground for eviction of tenant within the meaning       D
        of clause (c) of sub-section (1) of Section 12 of the M.P.
        Accommodation Control Act, 1961. To amount to such
        denial or disclaimer, as would entail forfeiture of tenancy
        rights and incur the liability to be evicted, the tenant should
        have renounced his character as tenant anti in clear and          E
        unequivocal terms set up title of the landlord in himself or
        in a third party. A tenant bona fide calling upon the landlord
        to prove his ownership or putting the landlord to proof of
        his title so as to protect himself (i.e. the tenant) or to earn
        a protection made available to him by the rent control law
                                                                          F
        but without disowning his character of possession over the
        tenancy premises as tenant cannot be said to have denied
        theititle of landlord or disclaimed the tenancy. Such an act
        of ~he tenant does not attract applicability of Section
        12(1)(c) abovesaid. It is the intention of the tenant, as
        culled out from the nature of the plea raised by him, which       G
        is determinative of its vulnerability."

    12. Having ascertained the legal position we will now state
why we feel that the High Court is not right in disturbing the
   ·'                                                                     H
    176       SUPREME COURT REPORTS                    [2014] 1 S.C.R.


A   concurrent finding of fact that the respondent-tenant denied the
    title of the appellant-landlady.

           13. There is a specific reference to the registered
    document under which the appellant purchased the suit building
B   from the earlier landlord in the plaint. Yet, in the written statement
    the respondent denied the title of the appellant. We notice that
    there are several documents on record relating to the
    ownership of the appellant, apart from the registered sale deed,
    such as municipal tax receipts, ration card etc. Yet, the
    respondent refused to acknowledge the appellant's title. He
C   denied it in his evidence. This is not a simple case of denial of
    derivative title by a person who did not know about the purchase
    of the building by the landlord. Even after going through the
    relevant documents relating to the appellant's title the
    respondent feigned ignorance about it. The High Court has
D   accepted that in his cross-examination the respondent has
    stated that he was not accepting the appellant as his landlady.
    The High Court has, however, gone on to say that by this piece
    of evidence no decree of eviction can be passed against the
    respondent under Section 12(1)(c) of the M.P. Act because the
E   respondent will have no occasion to establish in what
    circumstances he denied the title of the appellant. The High
    Court has further held that the respondent was within
    permissible limit in asking the appellant to produce
    documentary evidence about his title as a landlord. The High
F   Court, in our opinion, fell into a grave error in drawing such a
    conclusion. Even denial of a landlord's title in the written
    statement can provide a ground for eviction of a tenant. It is also
    settled position in law that it is not necessary that the denial of
    title by the landlord should be anterior to the institution of eviction
G   proceedings. This is so stated by this Court in Majati Subbarao
    v. P. V.K. Krishnarao(deceased) by LRs. 10 •

         14. The High Court has expressed that the respondent
    was justified in asking the appellant to produce the documents.

H   to. (1989) 4 sec 732.
              KESHAR BAI v. CHHUNULAL                         177
            [RANJANA PRAKASH DESAI, J.]

Implicit in .this observation is the High Court's view that the       A ·.
responder:it could have in an eviction suit got the title of the
appellant finally adjudicated upon. There is a fallacy in this
reasoning. In eviction proceedings the question of title to the
properties in question may be incidentally gone into, but cannot
be decided finally. Similar question fell for consideration of this   B
Coort in Bhagadi Kannabalu. In that case it was argued that
the landlady was not entitled to inherit the properties in question
and hence could not maintain the application for eviction on the
ground of default and sub-letting under the A.P. Tenancy Act.
This Court referred to its decision in Tej Bhan Madan v. II           c
Additional District Judge and Ors. 11 in which it was held that a
tenant was precluded from denying the title of the landlady on
the general principle of estoppel between landlord and tenant
and that this principle, in its basic foundations, means no more
than that under certain circumstances law considers it unjust to      0 ·
allow a person to approbate and reprobate. Section 116 of the
Evidence Act is clearly applicable to such a situation. This
Court held that even if the landlady was not entitled to inherit
the properties in question, she could still maintain the
application for eviction and the finding of fact recorded by the      E
courts below in favour of the landlady was not liable to be
disturbed. The position on law was stated by this Court as
under:

     "In this connection, we may also point out that in an eviction
     petition filed on the ground of sub-letting and default, the     F
     court needs to decide whether relationship of landlord and
     tenant exists and not the question of title to the properties
     in question, which may be incidentally gone into, but cannot
     be decided finally in the eviction proceeding."
                                                                      G
      15. Reliance placed by learned counsel for the respondent
on Mohd. Nooman is misplaced. In that case, the landlord had
filed an eviction suit described as Title Suit No.36 of 1973 to


11. (1988) 3 sec 137.                                                 H
    178       SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A evict the tenant. The trial court held that the relationship of
  landlord and tenant had not been proved and since the tenant
  had raised the question of title the proper course would be to
  dismiss the suit and not to convert it into a declaratory suit
  because the suit was neither for declaration of title nor had the
B plaintiff paid ad valorem court fee. The trial court dismissed
  the suit as there was no landlord and tenant relationship, but,
  upheld the plaintiff's claim of title. In the appeal, the first
  appellate court observed that by filing a suit for eviction and
  paying court fee on twelve months alleged rent, the plaintiff had
c adopted a tricky way of getting the title decided. The plaintiff,
  then, filed a suit on title. The trial court decreed the suit. The
  first appellate court allowed the appeal and dismissed the suit.
  In the second appeal before the High Court the question was
  whether the judgment and decree regarding title passed in the
  earlier suit shall operate as res judicata between the parties
0
  on the question of title. The High Court observed that pleas
  taken by both parties regarding title in both the title suits are
  the same and answered the question in affirmative. This Court
  endorsed the High Court's view and held that the issue of title
  was directly and substantially an issue between the parties in
E the earlier eviction suit, hence, the High Court was right in
  holding that the finding of title recorded in the earlier suit would
  operate as res judicata in the subsequent suit. This view was
  expressly restricted by this Court to the facts before it. This
  Court clarified that ordinarily it is true that in a suit for eviction
F even if the court goes into the question of title it examines the
  issue in an ancillary manner and in such cases (which constitute
  a very large majority) any observation or finding on the question
  of title would certainly not be binding in any subsequent suit on
  the dispute of title. This Court further clarified that the case with
G which it was dealing fell in an exceptional category of very
  limited number of cases. Thus, in our opinion, no parallel can
  be drawn from Mohd. Nooman. In that case issue of title was
  framed. In the instant case issue of title was not even framed.
  Mohd. Nooman arose out of exceptional facts and must be
H restricted to those facts.
              KESHAR BAI v. CHHUNULAL                         179
            [RANJANA PRAKASH DESAI, J.]
     16. In view of the above, we are of the opinion that the High   A·
Court was wrong in setting aside the concurrent finding of fact
recorded by the courts below that the respondent had denied
the title of the appellant. We are of the view that the present
case is covered by Section 12(1)(c) of the M.P. Act. It is,
therefore, necessary to restore the decree of eviction. In the       B
circumstances, we allow the appeal. The impugned judgment
of the High Court is set aside and eviction decree passed by
the trial court and confirmed by the first appellate court under
Section 12(1)(c) of the M.P. Act is restored.

      17. The appeal is disposed of in the afore-stated terms.
                                                                     c
R.P                                        Appeal disposed of.