of termination of tenancy by acceptance of the rent.
The waiver can occur only when the lessor has treated
the tenancy as subsisting. Mere acceptance of arrears of
rent can not imply that the lessor treated the tenancy as
subsisting unless it can be established as conscious and
deliberate act. There has to be consensus ad idem of the
parties to treat the lease as subsisting or reestablish the
relationship of the landlord and tenant. Mere
acceptance of rent, therefore, without the intention to
treat the lease as subsisting would not amount to
waiver. The acceptance of rent may be without
prejudice to the rights and contentions in the notice, it
does not amount to waiver. Waiver has to be a
deliberate and conscious act on the part of the landlord
to treat the contractual tenancylease as subsisting. If
the eviction suit is continuing even after acceptance of
the rent it indicates that the landlord has no intention to
waive the quit notice because landlord has elected to
continue with the eviction proceedings in order to
recover possession from the lessee.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.427 OF 2002
Narendra Vyankatesh Tambat,V Pravinkumar Khushalchand Tated,
Dated : 9.7.2015.
CORAM : A.P.BHANGALE, J.
Citation;2016(1) ALLMR 25
1. This Second appeal is preferred against the
Judgment and Order dt.22082002 passed by the
Additional District Judge, Khamgaon whereby the first
Appellate Court had allowed the appeal, decreeing the
suit for eviction and possession, damages and mesne
profits.
2. The subject matter of the dispute is suit
tenement on the ground floor of Plot no.99/2 situated
in Nazul Sheet no. 33B at Khamgaon, District
Buldana, which was let out to the defendant at a
monthly rent of Rs.100/. The plaintiff had filed an
application to the Rent Controller, Khamgaon for
permission to issue quit notice to the tenant on the
ground of bona fide requirement. The proceeding was
opposed on the ground that the landlord was
'Benamidar' (not real owner)'. Plaintiff had filed
Regular Civil Suit No. 122 of 1993 for eviction of the
defendant in the Court of Civil Judge (Jr.Dn.),
Khamgaon, District Buldana for relief of possession
and recovery of damages. The defendant had denied
title of the landlord–plaintiff. The defendant was served
with notice dt.29041993 (Exh. 44) on the ground
that tenancy was forfeited and vacant possession and
damages, mesne profits were claimed. The defendant
had replied the notice (Exh.45). The trial Court had
dismissed the suit.
3. The substantial question of law set out is as
under :
a) Whether as effect of the denial/disclaimer
of the title of the landlord by the Tenant, the
tenancy is liable to be forfeited? Whether there
was waiver of notice of forfeiture issued by the
landlord by accepting the rent from the Tenant
after service of the notice of forfeiture?
My answer is tenancy was liable to be forfeited
and there was no waiver of notice of forfeiture
merely by acceptance of rent in the facts and
circumstances of the case for following reasons.
4. The defendant had pleaded in the proceedings
before the Rent Controller that suit premises was
purchased by one Inderkumar Sancheti in the name of
the plaintiff. Thus, the title of the landlord was denied by
the defendanttenant by way of defence before the Rent
Controller.
5. Mr.A.V.Bhide, learned Counsel for the appellant
submitted that the trial Court had dismissed the suit on
the ground that the bona fide requirement of the land
lord was not established, but the first appellate Court
erred to decree the suit. According to Mr.Bhide merely
because there was disclaimer of title of the land lord by
the tenant, it would not enable the landlord to claim
eviction of the tenant.
6. Mr.Bhide relied upon the ruling in Bapubhai
Papabhai Vs. Khairunnisa Abdul Kadar reported in
1992 Mh.L.J. 521 to argue that when the trial Court
had dismissed the suit, the appellate Court could not
have decreed the suit on totally new ground and if so, it
amounts to error of jurisdiction. I have seen the ruling.
Facts of the case appear different. In that case, the tenant
was inducted by the predecessorintitle of the land lord.
The tenant required the new landlord to prove her title.
It did not follow that the tenant had denied the title
prior to the filing of the suit. In fact, the defendants had
never denied the title to the suit property. The appellate
Court had decreed the suit on totally new ground not
pleaded in the plaint. Thus, this Court held that the
decree passed by the appellate Court was without
jurisdiction. The ruling is, therefore, not attracted in the
facts and circumstances of the present case. In this case
in hand, the tenant denied title of the landlord during
pendency of proceedings before the Rent Controller.
Denial was conscious out of the tenant
7. Mr.Bhide placed reliance upon the ruling in
Subhash Chandra vs. Mohommad Sharif & Others
reported in (1990) 1 SCC 252. In this case, it is held
that where the tenant was not inducted by the landlord
and the title of the land lord is derivative such as
Assignee, Donee, Vendee, Heir etc., the tenant can
challenge the derivative title showing that the real owner
is somebody else. But, at the same time, the ruling makes
it clear that Section 116 of the Evidence Act does not
permit the tenant to deny title of the landlord at the
beginning of the tenancy. In the present case, we are not
dealing with the case of the transferee of the landlord,
but the landlord who inducted the defendanttenant.
8. Mr.Bhide refers to Section 15 of the Maharashtra
Rent Control Act which provides RELIEF AGAINST
FORFEITURE of tenancy in following terms :
15. No ejectment ordinarily to he made if tenant
pays or is ready and willing to pay standard rent
and permitted increases.
(1) A landlord shall not be entitled to the recovery
of possession of any premises so long as the tenant
pays, or is ready and willing to pay, the amount of
the, standard rent and permitted increases, if any,
and observes and performs the other, conditions of
the tenancy, in so far as they are consistent with
the provisions of this Act.
(2) No suit for recovery of possession shall be
instituted by a landlord against the tenant on the
ground of nonpayment of the standard rent or
permitted increases due, until the expiration of
ninety days next after notice in writing of the
demand of the standard rent or permitted
increases has been served upon the tenant in the
manner provided in section 106 of the Transfer of
Property Act, 1882.
(3) …........................
9. According to Mr. Bhide, landlord was not entitled to
possession. Mr.Bhide then refers to the ruling in M/s
Bharat Earth Movers Ltd vs Puranlal Kedia reported
in AIR 2009 (NOC) 585 (CAL). The right to evict the
tenant must be exercised by notice determining the
tenancy. In the case in hand the landlord had already
approached the Rent controller to initiate the eviction
proceedings in which the tenant challenged the title of
the landlord as 'Benamidar' despite the fact that the
same land lord had inducted him.
10. Section 116 of the Evidence Act reads thus :
116. Estoppel of tenant and of license of
person in possession 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; and
not person who came upon any immovable
property by the license of the person in
possession thereof, shall be permitted to deny
that such person has a title to such possession at
the time when such license was given.
Tenant is, thus prevented by law from disputing title
of the landlord as on beginning of tenancy.
11. Shri Khajanchi, learned Counsel for the
respondent/landlord submitted that the suit was
wrongly dismissed by the trial Court. However, the
first appellate Court had rightly arrived at the
conclusions which were wholly consistent with the legal
position as to law of waiver of quit notice issued by the
landlord claiming decree for eviction of the tenant.
Learned Counsel relied upon the ruling in Hashmatrai
Vs. Tarachand Laxmichand reported in 1978 Mh.L.J.
750 to argue that the question of waiver has to be
decided depending upon the facts of each case. The
question is of the intention of the parties once a suit for
ejectment is filed it cannot be possibly said that the
landlord had the intention to treat the tenancy as
subsisting unless he withdraws the suit. The lessor
cannot be said to have waived the notice by accepting
rent during the continuance of the suit. In the ruling in
Ramjilal Banwarisahay Vs Gulabrao Balaji
Deshmukh 1978 Mh.L.J. 850, it is observed that the the
intention on the part of the landlord to treat the tenancy
as subsisting is necessary to constitute the waiver. Mere
acceptance of the rent in the pending suit would not
amount to the waiver unless the landlord thereafter
abandon the suit. Mr.Khajanchi argued that the tenant
was not entitled to dispute or deny the title of the
landlord in proceedings before the Rent Controller. The
tenant by the act of disclaimer of title of the landlord
invited the forfeiture of the tenancy by notice to quit
issued from the landlord. Learned Counsel emphasized
that the acceptance of the rent by the landlord must be
with clear intention to treat the lease as subsisting
despite determination of the tenancy in other words it
must be proved by the tenant that the landlord's must
have elected to treat the lease as subsisting. In
Ramchandra Jamnadas Katariya vs. Nuruddinbhai
reported in 2004 (4) Mh.L.J. 178, it is observed that the
intention of the landlord is of paramount importance to
determine the act of waiver of the notice to quit. Mere
acceptance of rent, therefore, would not amount to
waiver. This Court in Haribhau Sadashiv vs. Raju
Daulatrao reported in 2004 (4) Mh.L.J 350 held that
during pendency of the suit appropriation by the
landlord towards arrears of rent would not constitute
waiver of notice to treat the tenancy as subsisting. After
service of notice to quit, the waiver cannot be
presumed, determinative by mere fact of rent tendered
and accepted. To support the submission, reference is
made to the case of Sarup Singh Gupta vs. S.Jagdish
Singh, (2006) 4 SCC 205 and ruling in Savitribai vs
Faruk, 2010 (5) Mh.L.J. 357. Mere acceptance of the
rent without further evidence to prove the waiver on the
part of the landlord to treat the tenancy as subsisting
can not assist the defendant to defeat the claim for
eviction under Section 113 of the Transfer of Property
Act. Division Bench of this Court in Ratanlal
Manikchand Shah Vs Chanbasappa, AIR 1978 Bom.
216 (1) held that relationship of the tenant and
landlord must exist between the parties to attract
provisions of the Rent Act. Disclaimer by the tenant of
the title of the landlord would not, therefore, bar the
Civil Court to order eviction as in such case, in the
absence of relationship as landlord and tenant between
the parties to the suit, owner of the property can
recover possession of the premises de hors the
provisions of the Rent Act. Denial of the land lord's title
or disclaimer, thus, exposes the tenant to the risk of
forfeiture of the lease and the lessor is given the right
to determine the lease by notice to the lessee and to sue
defendant on the basis of title as owner of the suit
property.
12. It appears in the facts of the present case that the
tenant had denied the title of the landlord in the judicial
proceeding before the Rent Controller and in the result
the landlord had issued the notice of forfeiture of
tenancy and terminated his tenancy. The act of
repudiation of the title of the landlord by the tenant in
judicial proceeding was a deliberate or conscious act,
which resulted in the end of relationship as landlord
tenant. Section 116 of the Indian Evidence Act estops
the tenant from denying the title of the landlord. It is
settled legal position that the tenant can not deny title
of the land lord. Denial or repudiation of the landlordtenant
relationship entails forfeiture of the lease
enabling landlord to recover possession as owner of the
suit property. The claim that the landlord was mere
“Benamidar” and owner is someone else amounts to
disclaimer of the relationship of the landlord and tenant
by setting up title in third person. The denial was clear
and unambiguous in the Rent Control proceedings,
tenant trying to set up title in third person one
Inderchand Sancheti. Tenant had no such statutory
right to disclaim the landlord's title. The tenant, thus,
incurred forfeiture of the tenancy as the landlord
issued notice to quit the tenancy under Section 111(g)
of the Transfer of Property Act. The tenancy stood
terminated by the defence of the tenant to repudiate his
relationship as tenant with the landlord and setting up
title in another. When relation between landlord and
tenant itself stands repudiated by conduct of tenant by
disclaimer, the landlord becomes entitled to recover
possession by resorting to ordinary law of the land.
13. The next question is as to whether there is waiver
of termination of tenancy by acceptance of the rent.
The waiver can occur only when the lessor has treated
the tenancy as subsisting. Mere acceptance of arrears of
rent can not imply that the lessor treated the tenancy as
subsisting unless it can be established as conscious and
deliberate act. There has to be consensus ad idem of the
parties to treat the lease as subsisting or reestablish the
relationship of the landlord and tenant. Mere
acceptance of rent, therefore, without the intention to
treat the lease as subsisting would not amount to
waiver. The acceptance of rent may be without
prejudice to the rights and contentions in the notice, it
does not amount to waiver. Waiver has to be a
deliberate and conscious act on the part of the landlord
to treat the contractual tenancylease as subsisting. If
the eviction suit is continuing even after acceptance of
the rent it indicates that the landlord has no intention to
waive the quit notice because landlord has elected to
continue with the eviction proceedings in order to
recover possession from the lessee.
14. The first appellate Court has recorded findings
consistent with this legal position stated and therefore,
no acceptable ground is made out for to warrant
interference with the impugned Judgment and Order.
The appeal, therefore, has no merits. It is dismissed with
costs.
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