MOHAMAD ALI AKHTAR Vs. MOHAMAD ABBAS

JUDGEMENT

(1.) This second appeal by the plaintiff raises an interesting question of Law. In order to appreciate the said question, it is necessary to state the relevant facts of the case. On the 1st September, 1966, the plaintiff inducted the defendant as a tenant for a fixed term of eleven months with respect to two rooms of a house bearing Mpl. holding No. 338 in Ward No. IV of the Giridih Municipality on a monthly rental of Rs. 35 (vide Ext. 2). According to the plaintiff's case, the defendant defaulted in payment of the rent from the month of May, 1967 and accordingly, he determined the tenancy by a notice under Section 106 of the Transfer of Property Act on the expiry of the month of September, 1967, and, thereafter, he instituted the present suit for the eviction of the defendant on the grounds of (1) expiry of the period of lease, (2) default in payment of rent and (3) personal necessity. The defendant in his written statement admitted the execution of the aforesaid Kirayanama (Ext. 2) and taking possession of the premises in question on that basis and also to have paid the rents to the plaintiff till April, 1967. But, he took a defence that the said Kirayanama was itself a fraudulent document, and, when he became aware of this fact that the real owner was a different person, he started paying rent to him from the month of May, 1967. His further case was that he had already vacated the premises and given possession to the real owner who had let out the premises to one Md. Usman, his relation. On an application of the plaintiff, an order under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 ('hereinafter referred to as 'the Act') was passed against the defendant directing him to deposit the arrears of rent as also the current and future rents in favour of the plaintiff. The said order was also affirmed by this Court in Civil Revision No. 773 of 1968. The defendant, however, committed default in complying with the said order under Section 11-A of the Act, and, accordingly, his written statement was struck off. In spite of the rejection of the written statement, in view of the Full Bench decision of this Court in Mahabir Ram v. Shiva Shanker Prasad, 1968 BLJR 447 = (AIR 1968 Pat 415) (FB), the defendant was allowed to press the case of want of title of the plaintiff in respect of the suit premises.

(2.) On behalf of the plaintiff, it was contended in the courts below that in view of the provisions of Section 116 of the Evidence Act, the defer ant was estopped from denying the right of the plaintiff to institute the present suit for eviction. Both the courts below, however, have rejected this plea advanced on behalf of the plaintiff and have dismissed the suit on the finding that the Kirayanama itself was a fraudulent document, and, therefore, the transaction of letting out of the premises by the plaintiff to the defendant was vitiated and, accordingly, the principles of estoppel contained in Section 116 of the Evidence Act could not debar the defendant to raise this question. Accordingly the courts below proceeded to determine this question and held that the plaintiff was not the owner of the premises in question, and was not entitled to a decree.

(3.) In this Court, Mr. S. C. Ghose, appearing for the plaintiff-appellant, has seriously challenged the legality of the aforesaid findings. According to the learned counsel, the defendant having entered upon the premises by virtue of the tenancy in question so much so that he even paid the rent from the said date till April, 1967, was estopped from denying that the plaintiff was not his landlord at the beginning of the tenancy. Reliance was placed by him on a decision of the Judicial Committee in the case of Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. (AIR 1937 PC 251). In this case, it has been clearly laid down that neither a tenant nor anyone claiming through a tenant shall be heard to deny that the particular landlord had at that date a title to the property. It has been further laid down that what all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The contention of the learned counsel seems to me to be unassailable and must be accepted.