HUSSAIN KHAN Vs. SUDAMA PRASAD

JUDGEMENT

(1.) THE defendant has filed present appeal challenging the concurrent judgment and decree passed by the IInd Additional District Judge, Sagar in Civil Appeal No. 1 -A of 1991 on 23.12.1991 and by learned Civil Judge Class -I, Rehli in Civil Suit No. 32 -A/1987 on 13.11.1990 decreeing the suit. Brief facts giving rise to this appeal are that the plaintiff/respondent is the owner of land bearing Khasra No. 375 area 0.06 acre situated at bus stand, Rehli. This land was purchased by the plaintiff on 19.10.1961 by registered deed. Out of this land, a small piece of 20' x 12' was given to the defendant on tenancy. The tenancy runs as per English calendar month. The defendant has also executed rent agreement Over this land the defendant constructed a temporary structure and is running a small shop. The defendant has not vacated the land inspite of the notice sent by the plaintiff through his Advocate on 11.6.1986 and gave false reply. On these grounds, suit for eviction and recovery of rent was filed. Defence of the defendant is that in the year 1968 he purchased the land measuring 12' x 10' for a consideration of Rs. 300/ - from Jamna Prasad. For this purpose, he had given advance of Rs. 50/ - to Jamna Prasad, but there is no written document in this respect. Thereafter, Jamna Prasad died. The defendant has been carrying -on his shop which is behind this land. This land was taken from the plaintiff on tenancy. He paid rent upto 31.12.1985. When the plaintiff asked to vacate the land, then defendant inquired into from Patwari and came to know that this land is Government Nazul land and is situated over Survey No. 334. Proceedings are also going on in respect of removal of encroachment before Naib Tahsildar, Rohli and defendant was punished with a fine and also directed to remove possession from that land. There was a dispute under Section 145 Code of Criminal Procedure in which plaintiff and defendant entered into a compromise. The defendant alleges that under the pressure of plaintiff he signed compromise prepared by the plaintiff and the proceedings u/s 145 Cr. P.C. dropped . Defendant admitted the receipt of notice, but explained that because he was busy in his son's marriage he could not reply to it The trial Court decreed the suit directing defendant to hand over the vacant possession of the disputed land, to pay 600/ - towards rent from April, 1986 to July, 1987 and awarded damages at the rate of Rs. 40/ - per month till vacant possession of land is delivered to plaintiff.

(2.) AGAINST the judgment and decree passed by the trial Court, plaintiff and defendant both preferred appeals which Were decided by judgment dated 23.12.1991. This appeal was admitted on 22.4.1992 on the following substantial questions of law: "Whether, the lower Courts have erred in deciding the question of demarcation of the Nazul Land without issuing a Commission for demarcation of the land by the Revenue Authorities? Whether, the lower Courts have erred in holding that the appellant was estopped from setting out a title adverse to his landlord -respondent in the circumstances of the case? Both the Courts below concurrently held disputed property was given to the defendant -appellant on tenancy Rs. 40/ - per month he had not returned back the land to the plaintiff. The plea of the defendant that the disputed land is a part of Nazul Land also not found proved. The courts below have recorded finding that the disputed land is the same land which was given to defendant on tenancy. Counsel for the appellant submits that this being a Government Nazul land, plaintiff is not entitled for any decree for possession of the land. In this regard, attention was invited to several documents which he filed alongwith an application under Order 41R.27 CPC before this Court. I perused the documents filed alongwith the application under Order 41R.27 CPC. From perusal to the documents, it appears that the matter was recommended for grant of lease in favour of the defendant by the Nazul Officer, but no order granting any lease in favour of the defendant was passed by any competent authority. In the circumstances, the documents filed by the appellant alongwith the application do not help him, nor is necessary for any substantial justice, hence application under Order 41R.27 is rejected. So far as the right of the appellant to challenge the title in respect of disputed property, such plea cannot be entertained in view of Section 108 (q) of Transfer of Property Act.

(3.) LEARNED counsel for the respondent has also drawn attention of this Court of the judgment in the cases of Anar Devi v. Nathuram reported in, 1994 JLI 486 and Vashu Deo v. Bal Kishan 2002 unreported judgments -367. In the case of Anar Devi vs Nathuram, Apex Court held - 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. In the case of Vashu Deo vs Bal Kishan, in para 6 the Apex Court held as under: R.of estoppel which governs an owner of an immovable property and his tenant would also mutatis mutandis govern a tenant and his sub -tenant in their relationship inter se. As held by the Privy Council in Currimbhoy & Co. Ltd. vs. L.A. Creet & Ors. : AIR 1933 PC 29 and Mt. Bilas Kinwar vs. Desraj Ranjit Singh & Ors., AIR 1915 PC 96, the estoppel continues to operate so long as the tenant has not openly restored possession by surrender to his landlord. It follows that the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord's title having been extinguished by his landlord's eviction by a paramount title holder. Eviction by paramount title holder is a good defence bringing to an end the obligation of the tenant to put the lessor in possession of the property under Sec. 108 (q) of the Transfer of Property Act. The burden of proving eviction by title paramount lies on the party who sets up such defence. In view of the above, the defendant appellant who had taken property from landlord on tenancy cannot challenge the title of landlord until tenant restores possession back to landlord. From the perusal of judgment of the courts below, it is concurrent finding of fact that the disputed land is the same land which was given to appellant on tenancy. There is no infirmity nor any perversity pointed out. In the circumstances, identity of land properly established, hence there is no necessity to issue local commission to ascertain the disputed land. In view of this, there is no substance in this appeal, it is dismissed with costs.