JOG RAJ Vs. MOHD YUNUS KHAN

JUDGEMENT

(1.) This is a plaintiff's second appeal in a suit for ejectment, arrears of rent and damages for use and occupation in respect of a shop situate at Rampur. The accommodation was governed by the provisions of the U. P. (Temporary) Control of Rent and Eviction Act. The bar of Section 3 of the Act, against the institution of the suit was sought to be avoided by the plaintiff on the ground that the defendant had renounced his character as such and denied the plaintiff's title to the property, in the written statement filed before the Rent Control and Eviction Officer, in reply to the plaintiff's application for permission to sue for the defendant's eviction. It is undisputed that the application for permission, was refused. The alleged denial of the plaintiff's title in paragraph 11 of the defendant's written statement was in the following words; "that the applicant is a young man of about 20 years of age. He has no independent source of income. He has no means to purchase the shop in dispute. The present purchase is only a Benami transaction. In fact, it has been purchased by Sri Sukh Ram in the name of his son, as it would have been difficult in the case of Sukh Ram himself as he is already occupying another shop. " The object of this plea clearly was to defeat the plaintiff's application for permission under Section 3 of the Act. The plaintiff's legal title regarding ownership of the shop was not denied. It was said in so many words that the transaction was a benami one and the real owner of the shop was plaintiff's father Sukh Ram. The reason behind purchasing the shop in the name of plaintiff was said to be the fact that the plaintiff's father already had another shop and if the shop in suit were also purchased by the plaintiff's father in his own name, he would not have been able to put for any genuine personal need for its occupation and that, therefore, the shop was purchased in the plaintiff's name in order to make out a case of personal need for use and occupation by its landlord, so as to get it vacated after obtaining the permission to file a under Section 3 of the Act. It is difficult to read in the said allegation made by the defendant in his written statement before the Rent and Control and Eviction Officer in the proceedings under Section 3 of the Act, any renunciation of his character as tenant by the defendant, or denial of the title of the plaintiff as the landlord of the accommodation. 1 may here add that according to the definition of the landlord as contained in Clause (c) of Section 3 of the Act, the landlord means a person to whom rent is payable by a tenant in respect of any accommodation and includes the agent, attorney, heir or assignee of such person. The defendant did not plead in his written statement before the Rent Control and Eviction Officer in the proceedings under Section 3 of the Act, that he was not liable to pay the rent of the accommodation to the plaintiff", nor did he plead that the plaintiff is not entitled to realise the rent therefore, It is not necessary that a person must be the owner of an accommodation before he could be a landlord within the meaning of the definition of that term under the Act, It cannot, therefore, be said that the defendant denied the title of the landlord within the meaning of Clause (f) of sub-section (1) or Section 3 of the Act. The lower appellate Court had, however, found to the contrary and without applying its mind to this aspect of the case ', it proceeded on an assump tion that some averment in the written statement of the defendant in the proceeding under Section 3 of the Act, before the Rent Control and Eviction Officer amounted to a denial of the plaintiff's title to accommodation in suit. Even so, the lower appellate Court held that the plaintiff had waived the said denial by his subsequent conduct of accepting the rent from the defendant. Mr. A. N. Bhargava, learned counsel for the plaintiff appellant urged that it is not open to this Court in the second appeal to reverse the finding arrived at by the lower appellate Court to the effect that the defendant did deny the plaintiff's title inasmuch as the finding was based on an interpretation of a document which was not the basis of the suit. He further urged that the lower appellate Court was in error in applying rule of waiver of forfeiture, contained in Section 112 of the Transfer of Property Act. Before coming to the second point raised by Mr. Bhargava, it is necessary first to see whether the finding of the lower appellate Court that the defendant had denied the plaintiff's title was such a finding of fact as to preclude this Court from interfering with the same, although as shown above, the pleading did not, on its true interpretation amount to any denial of the plaintiff's title as the landlord of the accommodation in suit. Mr. Bhargava, relied on a decision of the Supreme Court in Nadunuri Kameshwaramma v. Sampati Suba Rao, A. I. R. 1963 S. C. 884 and that of Full Bench of five Judges of this Court in Saadat Husain Ram Kishan Das A. I. R. 1940 All. 373. I do not think that any of these two cases laid it down that this Court cannot interfere with the interpretation of the legal effect of an admission of the kind made by the defendant in his written statement before the Rent Control and Eviction Officer in the proceedings under Section 3 of the Act, which is involved in this case. There was no dispute about what the defendant had stated before the Rent Control and Eviction Officer. The question was whether it amounted to renunciation of the defendant's cha racter as a tenant of the plaintiff or the denial of the plaintiff's title as the landlord, within the meaning of clause (f) of sub-section (1) of Section 3 of the Act. That, in my opinion, clearly raised a question of law and this Court has the fullest jurisdiction to interfere with and reverse the finding of the lower appellate Court on this point in a second appeal under Section 100 of the Code of Civil Procedure. I may, in this context, also notice a contention raised by Mr. Bhargava in the alternative. He urged that even if this Court could see whether the defendant's allegation in his written statement before the Rent Control and Eviction Officer in the proceedings under Section 3 of the Act amounted to a denial of the plaintiff's title, the allegation made by the defendant therein did amount to a denial of the title of the plaintiff as the landlord. Mr. Bhargava referred to a case of Hasmat Husain v. Saghir Ahmad, A. I. R. 1958 All. 847 in this connection. It was held in that case in the context of Section 111 (g) (2) of the Transfer of Property Act, that setting up title in a third person does not mean setting up full title in a third person or asserting that the landlord had no title to the property at all and that it was sufficient in order to amount to a denial of the plaintiff's title. If the tenant alleged that the landlord was merely one of the cc-owners instead of being the full owner of the property. The present case was not of a forfeiture under clause (g) of Section 111 of the Transfer of Property Act. The question in the present case was whether the defendant had renounced his character as the tenant of the plaintiff or whether he had denied the plaintiff's title as his landlord within the meaning of Clause (f) of sub-section 3 of U. P. Act III of 1947. For the reasons already given above, I am clearly of the opinion that the plea taken by the defendant in his written statement before the Rent Control and Eviction Officer in the proceedings under Section 3 of the Act did not amount to a denial of the plaintiff's title as the landlord. More over, it is in evidence in the present case that simultaneously with his alleged act of denial of title of the plaintiff, the defendant tendered rent of the accom modation to the plaintiff and even followed it up by an application under Section 7-C of the Act, which clearly showed that he never intended to deny the plaintiff's title as his landlord. The second point raised by Mr. Bhargava does not survive. In the result, I have come to the conclusion that the suit for eviction must fail. The appeal is accordingly dismissed. But in the circumstances, there will be no order as to costs. .