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RENT EVICTION SUIT WITH OUT SURRENDERING THE POSSESSION, A TENANT CAN NOT CHALLENGE THE TITLE OF OWNER =Rent Control and Eviction – Suit for ejectment and resumption of possession of land 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 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. =It is well settled that the tenant who has been let into possession by the landlord cannot deny the 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 exceptions to this general rule, none of the exceptions were established by the appellants in this case – Therefore, appellants who were the tenants of the respondents would have to surrender possession to the respondents before they can challenge the title of the respondents – Although an averment was made in the plaint that 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 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 appellants are 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. = STATE OF A.P. & ORS. Appellant(s) VERSUS D. RAGHUKUL PERSHAD (D) BY LRS & ORS. Respondent(s) = published in http://judis.nic.in/supremecourt/helddis.aspx

Rent Control and Eviction – Suit for ejectment and resumption of possession

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

of land 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 factTrial court 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 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 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 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 exceptions to this
general rule, none of the exceptions were established by the appellants in
this case – Therefore, appellants who were the tenants of the respondents
would have to surrender 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 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 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 appellants are
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.

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.

Case Law Reference:

AIR 1917 Madras 789 referred to Para 4
1988 (1) SCR 145 relied on Para 6

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5822 of 2012.

From the Judgment & Order dated 06.11.2009 of the High 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.

M.L. Verma, Venkateshwar Rao Anumolu, Satya Mirta, Prabhakar Parnam, T.
Kanaka Durga for the Respondents.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5822 OF 2012
(Arising out of SLP(Civil) No. 35306 of 2009)
STATE OF A.P. & ORS. Appellant(s)
VERSUS
D. RAGHUKUL PERSHAD (D) BY LRS & ORS. Respondent(s)
O R D E R
Leave granted.
The facts briefly are that the respondents herein filed OS
No. 2379 of 1990 in the Court of 5th Assistant Civil Judge, City 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 from Nawab Raisyar Bahadur. The further
case of the respondents in the plaint was that as the appellants
failed 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 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 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 respondents and
further held that the appellants have not been able to establish their
title to the suit land.
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 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. 9717 of 1993 filed
before the High Court one Mohammed Khasim and Ameena Begum had
challenged the entries with regard to Survey No. 58(Old) of
Bahloolkhanguda 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 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 aforesaid findings, the High Court dismissed the Second
Appeal of the appellants.
Mr. P.S. Narasimha, learned senior counsel appearing for
the appellants cited a full Bench Judgment of the Madras 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 plaintiff’s
title and he may also show that the title is in some third person or
himself. He also relied on the 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 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 were
actually the owners of the suit land.
We have considered the submissions of Mr. P.S.
Narasimha 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 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 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 the rent was paid by mistake of
fact.
The law is settled by this Court in D. 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 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 respondents before they can challenge the title of the
respondents.
In the plaint as framed by the respondents in the present
case, the relief of eviction against the appellants was not based on
the title of the respondents. Mr. M.L. Varma, learned senior counsel
appearing for the respondents vehemently submitted 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
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 Court, the First
Appellate Court and the High Court were not called upon to decide the
question of title.
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, 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.
The judgment of the Courts below are modified accordingly.
The appeal is allowed to the extent indicated above. No costs.
…………………………J.
(A.K. PATNAIK)
…………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI
AUGUST 08, 2012.

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