STATE OF A.P. & ORS.versusD. RAGHUKUL PERSHAD (D} BY LRS & ORS.

                         [2012) 6 S.C.R. 1176


A                       STATE OF A.P. & ORS.
                                    v.
           0. RAGHUKUL PERSHAD (D} BY LRS & ORS.
                 (Civil Appeal No. 5822 of 2012)
                           AUGUST 8, 2012
B
              [A.K. PATNAIK AND SUDHANSU JYOTI
                      MUKHOPADHAYA, JJ.]

          Rent Control and Eviction - Suit for ejectment and
C    resumption of possession of/and filed by respondents on the
     ground that appellant-tenant failed to pay rent from 1986 -
     Plea of appellant in written statement that suit land actually
     belonged to him and the lease deed was executed and rent
     was paid to respondents by mistake of fact - Trial court
.o   decreed suit for eviction after recording finding that the
     appellants had failed to prove the title to the land - First
     appellate court and High Court upheld the decision of trial
     court - On appeal, held: Although plea was raised by
     appellants that the execution of lease deed as well as
E    payment of rent pursuant to the lease deed were under
     mistake of fact, no issue as such was framed by trial Court
     on whether the lease deed was executed by mistake of fact -
     This issue was an issue of fact but as the issue was not
     framed, parties could not adduce evidence and no finding as
F    such was recorded by trial Court on the said issue - Hence,
     this Court is not in a position to consider the argument of the
     appellants that the lease deed was executed and the rent was
     paid by mistake of fact - It is well settled that the tenant who
     has been let into possession by the landlord cannot deny the
G    landlord's title however defective it may be, so long as he has
     not openly surrendered possession by surrender to his
     landlord - Although, there are some excwitions to this general
     rule, none of the exceptions were established by the
     appellants in this case - Therefore, appellants who were the
H                                 1176
STATE OF A.P. & ORS. v. D. RAGHUKUL PERSHAD 1177
              (D) BY LRS & ORS.

tenants of the respondents would have to surrender                     A
possession to the respondents before they can challenge the
title of the respondents - In the plaint as framed by
respondents in the instant case, the relief of eviction against
the appellants was not based on the title of the respondents
- Although an averment was made in the plaint that                     B
respondents were owners of the suit land, no relief for
declaration of title as such was claimed by the respondents
- Only the relief of eviction was sought in the plaint on the
ground that the lease had not been renewed after 1986 and
the rent had not been paid since 1986- Therefore, this being           c
not a suit of declaration of title and recovery of possession
but only a suit for eviction, trial Court, first appellate court and
High Court were not called upon to decide the question of title
- The findings of courts below on title is, therefore, set aside,
but the decree for eviction is maintained - The appellf!nts are
                                                                       0
directed to vacate the suit land within six months - Suit, if any,
filed by the appellants for declaration of title and
consequential relief cannot be entertained by the court unless
the appellants first vacate and handover possession to the
respondents.
                                                                       E
     D. Satyanarayana v. P. Jagdish 1987(4) SCC 424: 1988
(1) SCR 145 - relied on.

    Venkata Chetty v. Aiyanna Gounden AIR 1917 Madras
789 - referred to.                                                     F
                       Case Law Reference:
     AIR 1917 Madras 789           referred to           Para 4
     1988 (1) SCR 145              relied on             Para 6
                                                                       G
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5822 of 2012.

     From the Judgment & Order dated 06.11.2009 of the High

                                                                       H
    1178     SUPREME COURT REPORTS                [2012] 6 S.C.R.


A   Court of Judicature, Andhra Pradesh at Hyderabad in S.A. No.
    270 of 2009.

         P.S. Narasimha, C.K. Sucharita, P. Parmeshwar, K.,
    Sriram P., Vishnu Shankar Jain for the Appellants.
B       M.L. Verma, venkateshwar Rao Anumolu, Satya Mirta,
    Prabhakar Parnam, T. Kanaka Durga for the Respondents.

        The Order of the Court was delivered

                              ORDER
c
        1. Leave granted.

       2. The facts briefly are that the respondents herein filed OS
  No. 2379of1990 in the Court of 5th Assistant Civil Judge, City
o Civil Court, Hyderabad against the appellants no. 1 to 4 for
  ejectment and resumption of possession of the suit land. The
  case of the respondents in the plaint was that the appellants
  had taken lease of the suit land from their common ancestor
  late Shri Dwaraka Pershad who had purchased the suit land
E from Nawab Raisyar Bahadur. The further case of the
  respondents in the plaint was that as the appellants fail~~ to
  pay any rent from 1986 and renewed the lease after 1986, the
  respondents gave a notice to the appellants on 30.11.1989 to
  vacate the suit land. The appellants filed written statement
F pleading, inter alia, that the suit land actually belonged to the
  appellants and the lease deed had been executed and the rent
  had been paid to the respondents by mistake of fact. The
  learned Civil Judge decreed the suit for eviction after recording
  a finding, inter alia, that the appellants have not been able to
  prove the title to the land. The appellants filed First Appeal
G before the 3rd Additional Chief Judge, City Civil Court,
  Hyderabad which was numbered as AS No. 294 of 2005. The
  First Appellate Court held that the appellants were estopped
  from setting up title in them so long as they have not
  surrendered possession of the land to the lessees, namely, the
H
STATE OF A.P. & ORS. v. D. RAGHUKUL PERSHAD1179
              (D) BY LRS & ORS.

respondents and further held that the appellants have not been      A
able to establish their title to the suit land.

      3. Aggrieved, the appellants filed Second Appeal SA No.
270 of 2009 before the High Court and by the impugned order,
the High Court has dismissed the Second Appeal after holding
                                                                    8
that the appellants cannot be permitted to deny the title of the
respondents under the provisions of 116 of the Indian Evidence
Act and also holding that the appellants have not been able to
adduce any evidence to prove that the suit land belonged to
the appellants. The High Court also held in the impugned order
that in a writ petition WP No. 9717of1993 filed before the High     C
Court one Mohammed Khas.im and Ameena Begum had
challenged the entries with regard to Survey No. 58(01d) of
Bah1oolkhanguda Survey No. 127(new) and the High Court had
observed that Rayees Yar Jung was the owner and sales made
by Rayees Yar Jung were therefore, valid. The High Court further    D
observed that the order passed by the High Court in writ petition
no. ,9717 of 1993 was challenged before this Court by the
Government but this Court had dismissed the appeal and
therefore, the appellants were estopped from taking a different
stand with regard to the ownership of the land. With the            E
aforesaid findings, the High Court dismissed the Second
Appeal of the appellants.

       4. Mr. P.S. Narasimha, learned senior counsel appearing
for the appellants cited a full Bench Judgment of the Madras F
High Court in Venkata Chetty Vs. Aiyanna Gounden AIR 1917 ·
Madras 789 and particularly the observations of Abdul Rahim,
officiating C.J., to the effect that a tenant who was not let into
possession by the person seeking to eject him is not estopped
from denying the plaintiffs title and he may also show that the
title is in some third person or himself. He also relied on the G
observations of Sheshagiri Aiyar, J. in the aforesasid case that
under the Indian Contract Act, it can be shown that any contract
into which a party has entered into is vitiated by mistake and
the principle of estoppel should not be held to override these
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    1180     SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A provisions of law of contract. He argued relying on the aforesaid
  observations in the judgment of the Madras High Court that the
  appellants, therefore, were entitled to plead in the written
  statement that the execution of the lease acknowledging title
  of the respondents was a mistake of fact and that the appellants
B were actually the owners of the suit land.

        5. We have considered the submissions of Mr. P.S.
  Narasim1ha and we find that although plea was raised by the
  appellants in their written statement that the execution of the
  lease deed in the present case, as .well as payment of rent
C pursuant to the lease deed were under mistake of fact, no issue
  as such was framed by the trial Court on whether the lease
  deed was executed by mistake of fact. This issue is an issue
  of fact and it is at the stage of trial that this issue will have to
  be raised and framed by the trial Court so that parties could
D lead evidence on the issue. In this case, as this issue has not
  been framed, parties have not adduced evidence and no
  finding as such has been recorded by the trial Court on this
  issue. Hence, we are not in a position to consider the argument
  of Mr. P.S. Narasimha that the lease deed was executed and
E the rent was paid by mistake of fact.

         6. The law is settled by this Court in 0. Satyanarayana vs.
    P. Jagdish 1987(4) SCC 424 that the tenant who has been let
    into possession by the landlord cannot deny the landlord's title
F . however defective it may be, so long as he has not openly
    surrendered possession by surrender to his landlord. Although,
    there are some exceptions to this general rule, none of the
    exceptions have been established by the appellants in this
    case. Hence, the appellants who were the tenants of the
    respondents will have to surrender possession to the
G respondents before they can challenge the title of the
    respondents.

       7. In the plaint as framed by the respondents in the present
  case, the relief of eviction against the appellants was not based
H on the title of the respondents. Mr. M.L. Varma, learned senior
 STATE OF A.P. & ORS. v. D. RAGHUKUL PERSHAD1181
               (D) BY LRS & ORS.

counsel appearing for the respondents vehemently submitted              A
that on a reading of the plaint, it will appear that the
respondents had claimed to be owners of the land. We find that
although an averment has been made in the plaint that the
respondents were the owners of the suit land, no relief for
declaration of title as such has been claimed by the                    8
respondents. Only the relief of eviction was sought in the plaint
on the ground that the lease had not been renewed after 1986
and the rent had not been paid since 1986. In our considred
opinion, therefore, this being not a suit of declaration of title and
recovery of possession but only a suit for eviction, the trial          c
Court, the First Appellate Court and the High Court were not
called upon to decide the question of title.

         8. For the aforesaid reasons, we set aside the findings of
  the trial Court, the First Appellate Court and the High Court on
  title, but we maintain the decree for eviction. We, however,          D
  order that the appellants will vacate the suit land within six
· months from today and further make it clear that the suit, if any,
  filed by the appellants for declaration of title and consequential
  relief cannot be entertained by the Court unless the appellants
  first vacate and handover possession to the respondents.              E

    9. The judgment of the Courts below are modified
accordingly. Tt:ie appeal is allowed to the extent indicated
above. No costs.

 8.8.B.                                    Appeal Partly allowed.       F