# Sahaj Ram v. Rajendra Prasad

- **Citation:** (2016) 5 ILRA 966
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-30
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sahaj-ram-v-rajendra-prasad-44019
- **Pages:** 11

## Headnote

U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 20(4), 20(f) -
Transfer of Property Act, 1882 - Section 111(g) - Evidence Act, 1872 - Section 116 - Eviction - Denial of
title - Derivative title - Conditional deposit - Benefit of Section 20(4).

Eviction of tenant - Denial of title - Scope - Tenant inducted by original landlord - Subsequent dispute
regarding derivative title of landlord - Tenant questioning title of transferee landlord - Held, does not
amount to denial of title so as to attract Section 20(f) - Estoppel under Section 116 Evidence Act not
attracted where tenant disputes derivative title and not original title.
5 All. Sahaj Ram Vs Rajendra Prasad

967
Deposit of rent under Section 20(4) - Conditional deposit - Whether disentitles tenant from protection -
Tenant depositing entire arrears with interest and costs but asserting that payment be released only after
decision of title dispute - Such protest not amounting to conditional deposit - Deposit held valid - Benefit
of Section 20(4) cannot be denied.

Small Cause Court jurisdiction - Title dispute - Where rival claims of ownership pending before Civil Court -
SCC cannot decide title - Eviction proceedings maintainable only on landlord-tenant relationship - Tenant's
status remains tenant till declaration of title in his favour.

Mortgagee claiming ownership through declaratory decree - Tenant disputing derivative title - Filing of suit
for foreclosure necessary - Declaratory decree not conclusive of ownership - Eviction cannot be founded
solely on such decree.
Effect of Section 20(4) - Object of provision to protect tenant from eviction on ground of default - Deposit
made to avoid eviction though title disputed - Held to be valid compliance.

Eviction decree - Set aside - Tenant entitled to protection under Section 20(4) - Direction to continue
depositing rent during pendency of title dispute - Rights of parties left open for adjudication before
competent civil court.

The dispute is being raised with regard to title of the plaintiff who claims to have derived title pursuant to a
declaratory decree dated 9.2.1989 passed in Original Suit No. 509 of 1984 against Tara Chand Agarwal, the
original owner. The petitioner on the other hand, is claiming title through the sale deeds executed in his
favour by Nagar Palika with regard to the plot over which the superstructure namely shop in question exists.
Both the parties have filed their respective suits before the Civil Court to establish their right and title in the
suit property. The question as to whether the petitioner/defendant had derived a valid title in the suit property
on the basis of sale deeds executed in the year 2001 or whether the vendee namely Tara Chand Agarwal had
a right to execute the said sale deeds is a question to be examined by the Civil Court in the pending
suits.(Paras 12-14)

It is seen in the instant case that the tenant never questioned the title of the original landlord on the basis of
contract of tenancy. He claimed himself as an owner on the basis of the sale deed executed by the original
landlord in his favour. In order to protect his interest, he has called upon the plaintiff to prove his title. The
challenge to the title of the plaintiff is based upon the plea that the plaintiff being a mortgagee cannot derive
a valid title from the original landlord on the basis of a declaratory decree without filing a suit for foreclosure
of mortgage. The instant case, therefore, cannot be said to be a case of denial of title of the landlord and,
therefore, benefit of Section 20(4) cannot be denied to the petitioner on that ground and the plaintiff cannot
ask for eviction on this ground.(Paras 33-34)

Held:(Paras-34,40-47)

## Text

966 INDIAN LAW REPORTS ALLAHABAD SERIES
37. Thus, on the basis of what has been stated and discussed above, I find that the learned
lower court has misled itself in reaching to the conclusion that the accused is guilty for the offence
charged. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed.

38. Hence, the impugned judgement of conviction and sentence dated 01.10.2015 passed
by the learned Additional District & Sessions Judge, Court No. 1, Ballia in Sessions Trial No. 96 of
2014 (State of U.P. vs Dileep Verma), arising out of Case Crime No. 346 of 2014, under Sections
363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, Police
Station- Sahatwar, District- Ballia is, hereby, set aside.

39. Accordingly, the present appeal is allowed.

40. The appellant is in jail. He shall be released forthwith in this case. However, the
provisions of Section 437-A Cr.P.C. shall be complied with.

41. Let a certified copy of this order be sent to the trial court concerned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.

Matters Under Article 227 No.- 1828 Of 2016

Sahaj Ram ...Petitioner
Versus
Rajendra Prasad ...Respondent

Counsel for the Petitioner:
Sundeep Agarwal,Nimai Dass

Counsel for the Respondent:
Virendra Singh

U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 20(4), 20(f) -
Transfer of Property Act, 1882 - Section 111(g) - Evidence Act, 1872 - Section 116 - Eviction - Denial of
title - Derivative title - Conditional deposit - Benefit of Section 20(4).

Eviction of tenant - Denial of title - Scope - Tenant inducted by original landlord - Subsequent dispute
regarding derivative title of landlord - Tenant questioning title of transferee landlord - Held, does not
amount to denial of title so as to attract Section 20(f) - Estoppel under Section 116 Evidence Act not
attracted where tenant disputes derivative title and not original title.
5 All. Sahaj Ram Vs Rajendra Prasad

967
Deposit of rent under Section 20(4) - Conditional deposit - Whether disentitles tenant from protection -
Tenant depositing entire arrears with interest and costs but asserting that payment be released only after
decision of title dispute - Such protest not amounting to conditional deposit - Deposit held valid - Benefit
of Section 20(4) cannot be denied.

Small Cause Court jurisdiction - Title dispute - Where rival claims of ownership pending before Civil Court -
SCC cannot decide title - Eviction proceedings maintainable only on landlord-tenant relationship - Tenant's
status remains tenant till declaration of title in his favour.

Mortgagee claiming ownership through declaratory decree - Tenant disputing derivative title - Filing of suit
for foreclosure necessary - Declaratory decree not conclusive of ownership - Eviction cannot be founded
solely on such decree.
Effect of Section 20(4) - Object of provision to protect tenant from eviction on ground of default - Deposit
made to avoid eviction though title disputed - Held to be valid compliance.

Eviction decree - Set aside - Tenant entitled to protection under Section 20(4) - Direction to continue
depositing rent during pendency of title dispute - Rights of parties left open for adjudication before
competent civil court.

The dispute is being raised with regard to title of the plaintiff who claims to have derived title pursuant to a
declaratory decree dated 9.2.1989 passed in Original Suit No. 509 of 1984 against Tara Chand Agarwal, the
original owner. The petitioner on the other hand, is claiming title through the sale deeds executed in his
favour by Nagar Palika with regard to the plot over which the superstructure namely shop in question exists.
Both the parties have filed their respective suits before the Civil Court to establish their right and title in the
suit property. The question as to whether the petitioner/defendant had derived a valid title in the suit property
on the basis of sale deeds executed in the year 2001 or whether the vendee namely Tara Chand Agarwal had
a right to execute the said sale deeds is a question to be examined by the Civil Court in the pending
suits.(Paras 12-14)

It is seen in the instant case that the tenant never questioned the title of the original landlord on the basis of
contract of tenancy. He claimed himself as an owner on the basis of the sale deed executed by the original
landlord in his favour. In order to protect his interest, he has called upon the plaintiff to prove his title. The
challenge to the title of the plaintiff is based upon the plea that the plaintiff being a mortgagee cannot derive
a valid title from the original landlord on the basis of a declaratory decree without filing a suit for foreclosure
of mortgage. The instant case, therefore, cannot be said to be a case of denial of title of the landlord and,
therefore, benefit of Section 20(4) cannot be denied to the petitioner on that ground and the plaintiff cannot
ask for eviction on this ground.(Paras 33-34)

Held:(Paras-34,40-47)

1. It is noted that a specific condition was knowingly put by the tenant while making the deposits that the
plaintiff would be entitled to receive money only after his rights are determined by the competent civil court.
The protest raised by the plaintiff regarding entitlement of the plaintiff to receive rent cannot make the
deposits conditional to entail eviction of the defendant within the meaning of Section 20(4) of the Act. The
deposits made by him are, therefore, held valid deposits, the eviction decree could not have been passed.
Both the courts below have erred in coming to the conclusion that on account of the condition put by the
tenant while making the deposit as per Section 20(4), he was not entitled to benefit of the said provision.

2. As discussed above the estoppel under 116 of the Evidence Act would not operate against the
defendant/tenant and, therefore, the defendant is entitled to claim benefit of Section 20(4) of the Act. The
968 INDIAN LAW REPORTS ALLAHABAD SERIES
eviction decree dated 14.2.2011 passed by the SCC Court namely the Civil Judge (Senior Division), Mathura in
SCC Suit No. 43 of 1987 and the order of affirmation of the revisional court namely the Additional District
Judge, Court No. 2, Mathura dated 5.2.2016 in SCC Revision No. 10 of 2011 are hereby set aside. The SCC
Suit No. 43 of 1987 is dismissed.

3. However, as the petitioner has not been declared owner till date and, therefore, in order to protect the
occupation of the petitioner/tenant, without prejudice to his rights seeking title in the suit property it is
directed that he shall continue to deposit the rent regularly month by month in the Court below by filing a
proper application under Section 30 of the Act. The plaintiff landlord would be entitled to withdraw the money
on an application moved by him. Alternatively, it is open for the petitioner/tenant to tender rent directly to the
plaintiff/landlord who shall issue rent receipts as a proof of payment. It shall be a regular payment @ Rs.
2,000/- per month commencing from 1.7.2016 onward payable on 10.7.2016 till the rights of the parties are
decided by the Civil Court. The petitioner, even if succeeds would not be entitled to ask for refund of the
amount paid by him to the plaintiff/landlord for use and occupation of the building. Apart from this, the entire
decreetal amount shall be deposited, if not already, by the petitioner/tenant before the Court below within a
period of six weeks from today and the plaintiff/landlord will be entitled to withdraw the said money. It goes
without saying that this Court has not entered into the merits of the rival claim of title of the parties. Any
observation made herein above would not come in the way of the parties for establishing their rights in a
Competent Court of law. With the above directions and observations, the petition is allowed.

Case Law discussed:

(1) Hari Ram Sahu vs. Ramesh Chandra Agarwal, 2004 (3) AWC 2737 - (Para 18)
(2) D. Satyanarayana vs. P. Jagadish, (1987) 4 SCC 424 - (Para 18)
(3) Sheo Murti Gupta vs. Ghoorey Lal, (1986) 1 ARC 40 - (Para 19)
(4) Ram Krishna Jaiswal vs. District Judge, Allahabad, (1999) 1 AWC 851 - (Para 19)
(5) Sri Ram Pasricha vs. Jagannath and others, (1976) 4 SCC 184 - (Para 19)
(6) Sheela and others vs. Firm Prahlad Rai Prem Prakash, AIR 2002 SC 1264 - (Para 27)
(7) Subhash Chandra vs. Mohammad Sharif and others, AIR 1990 SC 636 - (Para 28)
(8) A.V.G.P. Chettiar and Sons and others vs. T. Palanisamy Gounder, AIR 2002 SC 2171 - (Para 30)

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

1. Heard Sri Nimai Dass and Sri Sundeep Agarwal, learned counsels for the petitioner and
Sri Virendra Singh, learned counsel for the respondent.

2. The eviction decree passed in SCC Suit No. 43 of 1987 (Rajendra Prasad vs. Sahaj Ram)
is under challenge in the present petition. A notice dated 2.4.1987 was served upon the
defendant/petitioner demanding rent from 1.2.1986 to 31.3.1987 @ Rs. 50/- per month for a total
Rs. 700/- towards rent, Rs. 140/- towards House Tax and Water Tax, thus total amount due was Rs.
840/- per month. By the said notice, the tenancy was also terminated on the ground of default. The
eviction suit was filed on 25.8.1987. The defendant had put in appearance on 4.2.1988.

3. In the present suit, it was submitted by the defendant that on the date of notice he was
not in default of rent for more than 4 months and as such the notice itself was invalid, the suit
cannot proceed, accordingly. This contention of the petitioner was repelled by the Court below with
the finding that the tenant could not establish by producing cogent evidence that the landlord
5 All. Sahaj Ram Vs Rajendra Prasad

969
refused to accept the rent. The deposits under Section 30 of the Act, therefore, cannot be said to be
valid deposits and on the date of notice, the tenant was in default of more than 4 months of rent.

4. It was further observed that a total amount of Rs. 2,025/- with interest has been
deposited by the tenant before the first date of hearing in the present suit, however, benefit of
Section 20 (4) of the Act could not be accorded to him for the reason that these deposits were made
conditional. Under Section 20(4) of the Act the tenant is required to deposit the entire rent with
interest and cost of the suit, unconditionally.

5. On issue no. 6, it was further held that the dispute regarding title of the landlord could
not be decided in the present suit. Such a dispute is pending before the Competent Civil Court and
cannot be looked into in a summary proceedings. However, looking to the fact that the
petitioner/defendant was inducted in the suit property as tenant by the erstwhile landlord from
whom the plaintiff claims to have derived title, it was held that the defendant is tenant in the suit
property.

6. The revisional court while dismissing the revision had also observed that the plaintiff
had derived title in the suit property on the basis of a declaratory decree passed in Original Suit No.
509 of 1984 and, therefore, the defendant cannot raise a dispute regarding title of the plaintiff to the
suit property. The deposits under Section 30 are not valid deposits and moreover, the deposits in
the present suit are conditional and, therefore, benefit of Section 20(4) cannot be accorded to the
petitioner.

7. The grounds of challenge to the orders of eviction urged by the learned counsels for the
petitioner are that the denial of title of the landlord by the defendant was denial of derivative title.
The plaintiff admittedly had derived title from the erstwhile landlord on the basis of an alleged
declaratory decree. The plaintiff's case was that the suit property was mortgaged to him on
31.7.1979 with the condition that in case, the mortgage is not redeemed it would be converted into
a sale deed. The declaratory decree obtained by the plaintiff is an ex-parte decree, on the basis of it,
he cannot claim to have derived a valid title as owner/landlord of the suit property. The plaintiff
being a mortgagee cannot become owner unless he files a suit for foreclosure of mortgage as per
Section 67 of the Transfer of Property Act. The declaratory decree dated 9.2.1989 in Original Suit
No. 509 of 1984 cannot, therefore, confer a valid title upon the plaintiff.

8. Apart from this, it was alleged that the defendant/petitioner got a lease in his favour of
the plot in question and also got it converted into free-hold. Subsequently a sale deed has also been
executed in his favour by the Nagar Palika concerned on 12.4.2001. The sale deed has not been
challenged before any Court of law. A suit namely Original Suit No. 1209 of 1993 (Rajendra
Prasad vs. Nagar Palika Koshikala) filed by the plaintiff/respondent has been dismissed in default
on 7.5.1997 and has not been restored till today.

9. So far as the superstructure namely the shop in question is concerned, the petitioner got a
sale deed from the erstwhile owner namely Tara Chand Agarwal on 9.7.2001. The suit for
970 INDIAN LAW REPORTS ALLAHABAD SERIES
cancellation of the sale deed, executed by Tara Chand Agarwal in favour of the petitioner, filed by
the plaintiff/respondent namely Original Suit No. 39 of 2002 is pending.

10. An application under Section 23 of Provincial Small Causes Courts Act for return of
plaint was filed by the petitioner which was initially allowed but the said order was set aside in
revision. The revisional court's order was affirmed in a Writ-A No. 19417 of 2010 (Sahaj Ram vs.
Rajendra Prasad) decided on 9.4.2010.

10(a). Submission is that since the defendant is claiming his title in the suit property, he
cannot be evicted on the alleged default in payment of rent.

11. So far as the deposits made by the petitioner/defendant before the SCC Court, it could
not have been ignored on any of the grounds that the deposits were conditional or the tenant had
denied the title of the plaintiff landlord.

12. Dealing with the first submission of learned counsel for the petitioner regarding his title
to the suit property suffice it to say that the fact that the petitioner was inducted in the suit property
as tenant by the erstwhile landlord namely Tara Chand Agarwal is not disputed. The dispute is
being raised with regard to title of the plaintiff who claims to have derived title pursuant to a
declaratory decree dated 9.2.1989 passed in Original Suit No. 509 of 1984 against Tara Chand
Agarwal, the original owner. The said suit was filed for a declaration that the mortgage has not
been redeemed and treating the mortgage deed as sale deed the plaintiff became absolute owner.

13. The petitioner on the other hand, is claiming title through the sale deeds executed in his
favour by Nagar Palika with regard to the plot over which the superstructure namely shop in
question exists. He is also claiming the title of the superstructure on the basis of sale deed dated
9.7.2001 executed by the erstwhile owner and landlord namely Tara Chand Agarwal. Both the
parties have filed their respective suits before the Civil Court to establish their right and title in the
suit property.

14. The question as to whether the petitioner/defendant had derived a valid title in the suit
property on the basis of sale deeds executed in the year 2001 or whether the vendee namely Tara
Chand Agarwal had a right to execute the said sale deeds is a question to be examined by the Civil
Court in the pending suits. In any case, the Small Causes Court in this summary proceeding was not
required to examine this issue.

15. However, so far as the question of competence of the SCC Court to proceed with the
present suit, the same has been set at rest with the dismissal of writ petition on 9.4.2010 filed by the
petitioner/defendant. There is no dispute about the fact that the petitioner/defendant was inducted in
the suit property by Tara Chand Agarwal as a tenant. His status in the suit property has not been
changed that too that of an owner in view of the fact that as on date there is no declaration in his
favour, the eviction suit has rightly been proceeded treating him as tenant.
5 All. Sahaj Ram Vs Rajendra Prasad

971
16. Now, only points remain to be considered is whether the deposits made by the
petitioner/ defendant would be deemed to be conditional disentitling him to claim the benefit of
Section 20(4) of the Act and whether it is a case of denial of title of the plaintiff landlord giving
him a legal right to ask for the eviction of tenant. The Courts below have held that the petitioner
while depositing the rent had denied the ownership of the plaintiff and stated that he was not
entitled for payment of the rent. It was further stated that the payment of the deposited money
should not be made to the plaintiff unless he succeeds in the pending proceedings before the Civil
Court. It is thus, clear that the tenant had not made an "unconditional deposit" as required under
Sub-section (4) of Section 20 of the Act.

17. Submission of learned counsel for the petitioner/defendant is that the condition put by
the tenant was only a protest raised by him regarding entitlement of the plaintiff to rent. So far as
the denial of title of the plaintiff is concerned that cannot be made basis for eviction of the
petitioner for the reason that it was a denial of derivative title of the landlord. The denial was not of
the title of the original landlord who had inducted the petitioner as tenant in the suit property.

18. Reliance is placed upon the judgment of this Court in Hari Ram Sahu versus Ramesh
Chandra Agarwal [2004 (3) AWC 2737] and the judgment of the Apex Court in D.
Satyanarayana versus. P. Jagadish [1987 (4) Supreme Court Cases 424]

19. On the other hand, learned counsel for the respondent has placed reliance upon the
judgment of this Court in Sheo Murti Gupta versus Ghoorey Lal and another [1986 (1) ARC
40], Ram Krishna Jaiswal versus District Judge, Allahabad [1999 (1) AWC 851] and the
judgment of the Apex Court in Sri Ram Pasricha versus Jagannath and others [1976 (4)
Supreme Court Cases 184].

20. So far as the question of denial of title of the plaintiff is concerned, admittedly, the
plaintiff did not induct the petitioner/defendant in the suit property.

21. At this stage, it is pertinent to refer to the law of denial of title of the landlord or
disclaimer of tenancy set out as a ground for eviction of the tenant.

22. Section 20(f) of the U.P. Urban Buildings (Regulation of Letting and Eviction Act,
1972 provides that a tenant incurs liability for eviction if he denies the title of the landlord or
renounce his character as a tenant, as this act of the tenant would adversely and substantially affect
the interest of the landlord therein

23. Section 111(g) of the Transfer of Property Act also provides that a lease of immovable
property determines by forfeiture in case the lessee renounces his character as such by setting up a
title in a third person or by claiming title in himself.

24. Section 116 of the Evidence Act provides a rule of estoppel that no tenant of
immovable property or person claiming through such tenant, shall, during the continuance of the
972 INDIAN LAW REPORTS ALLAHABAD SERIES
tenancy be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy a
title to such immovable property. This means that the estoppel to challenge the title of the landlord
binds the tenant from disputing the title of his landlord at the commencement of the tenancy. The
rule of estoppel applies so long as the tenancy is not terminated, however, the tenant is not estopped
from pleading that the title of the landlord has come to an end or the landlord has lost his title
during the continuance of tenancy.

25. There is another aspect of the matter that in case of transferee is called upon to prove
his derivative title, the estoppel would not apply. The expression "derivative title" is referable to
the plaintiff seeking eviction of the tenant. While disputing the derivative title of the transferee
landlord, the tenant cannot say that the original landlord's title was defective or he had no such title
as he could pass to the transferee. The object behind this provision is an implied condition in every
lease that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is
done, the lessor may re-enter for breach of this implied condition.

26. However, it is not sufficient that if the lessee does not at once acknowledge the title of
the transferee landlord or put him to proof of his title. Essential characteristic of disclaimer is that it
must amount to a renunciation of his character by the tenant, either by setting up a title in another
person or by claiming title in himself. A mere renunciation of tenancy without anything more,
cannot amount to a disclaimer. Setting up a title hostile to that of the landlord by the tenant himself
or the tenant assisting another person to set such a claim entails forfeiture of tenancy. However,
after the creation of the tenancy, if the title of landlord is transferred or devolves upon a third
person, the tenant is not estopped from denying such title.

27. The Apex Court in Sheela and others vs. Firm Prahlad Rai Prem Prakash [ AIR
2002 Supreme Court 1264] has held that however, it has to be borne in mind that since the
consequence of applying the rule of determination by forfeiture of tenancy as a result of denial of
landlord's title or disclaimer of tenancy by tenant are very serious. To operate it against the tenant
as providing a ground for eviction, the denial of title of the landlord has to be "not bonafide" that
means absence of good faith or non genuineness of the tenant's plea.

28. In Subhash Chandra vs. Mohammad Sharif and others [ AIR 1990 Supreme Court
636] it has been held that where the landlord has not himself inducted the tenant in the disputed
property and his rights are founded on a derivative title, for example, as an assignee, donee, vendee,
heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiff's
claim of derivative title showing that the real owner is somebody else, but this is subject to the rule
enunciated by S. 116 of the Evidence Act. The section does not permit the tenant, during the
continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to
the property. The rule is not confined in its application to cases where the original landlord brings
an action for eviction, a transferee from a landlord also can claim the benefit, but that will be
limited to the question of the title of the original landlord at the time when the tenant was let in.

29. Relevant paragraph '7' of the above report is quoted as under:-
5 All. Sahaj Ram Vs Rajendra Prasad

973
"7. So far claim of having derived a good title from the original landlord is
concerned, the same does not come under the protection of the doctrine of estoppel, and is
vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as a matter of fact
secured a transfer from the original landlord or that the alleged transfer is ineffective for some
other valid reason, which renders the transfer to be nonexistent in the eye of law. By way of an
illustration one may refer to a case where the original landlord had the fight of possession and
was, therefore, entitled to induct a tenant in the property but did not have any power of disposition.
the tenant in such a case can attack the derivative title of the transferee-plaintiff but not on the
ground that the transferor-landlord who had initially inducted him in possession did not have the
right to do so. Further since the impediment in the way of a tenant to challenge the right of the
landlord is confined to the stage when the tenancy commenced, he is forbidden to plead that
subsequently the landlord lost this right. These exceptions, however, do not relieve the tenant of his
duty to respect the title of the original landlord at the time of the beginning of the tenancy."

30. Same principle has been narrated in A.V.G.P. Chettiar and Sons and others vs. T.
Palanisamy Gounder [ AIR 2002 Supreme Court 2171].

Relevant paragraphs '38' and '39' are quoted as under:-

"38. This Court has recently held that Section 10(2)(vii) is based on "the rule of
estoppel contained in Section 116 of the Evidence Act which estops the tenant from denying the title
of the landlord at the commencement of the tenancy and the estoppel continues to operate so long
as the tenant does not surrender possession over the tenancy premises to the landlord who inducted
him in possession. The tenant is not estopped from denying the title of the landlord if it comes to an
end subsequent to the creation of the tenancy nor is he estopped from questioning the derivative
title of a transferee of his landlord". [JJ. Lal Pvt. Ltd. and others vs. M.R. Murali and another 2002
(3) SCC. (Emphasis added).

39. It is nobody's case that the appellants were inducted by Gowthaman from
whom the respondent derived his interest in the property. The High Court noted that "the rent
receipts were given originally in the name of E. Venkata Naicker Trust, Erode/E.V. Krishasami
Sons (management)". Therefore, the appellants were inducted as tenants by the Trust. If the suit
property was part of the Trust, the appellants could validly raise the questions viz. how did the
property come to be transferred by the Trust to Gowthaman? What was the validity of the transfer,
if any? What was the nature of the interest which Gowthaman had in the suit property? Was it qua
trustee or qua owner? If it was that of a trustee, could he have, legally and in terms of the Trust
deed, transferred the suit property to the respondent? Yet the Rent Controller refused to go into any
of these questions although they were squarely raised by the appellants before him. Instead he
decided the title of Gowthaman on the basis of a partition deed between the heirs of Venkata
Naicker and rent receipts granted to the appellants by Gowthaman as proprietor. The Rent
Controller could have only decided (i) whether there was a dispute regarding the landlord's title
raised by the tenant and (ii) whether the dispute was bona fide the bona fides being established
prima facie, by evidence in support of the tenant's stand. The Rent Controller could not have
974 INDIAN LAW REPORTS ALLAHABAD SERIES
ignored the questions relating to the derivative title of the respondent. He could not have finally
decided the issue of title of the respondent to the suit property, nor could he have, on that basis,
find that the appellants' denial of the respondents title not bonafide. "To operate against the tenant
as proving a ground for eviction under Section 10 of the Act, a mere denial of the title of the
landlord is not enough; such denial has to be "not bona fide". "Not bona fide" would mean absence
of good faith or non-genuineness of the tenant's plea. [JJ. Lal Pvt. Ltd. v. M.R. Murali (supra)".

31. In Sheela (supra), it is held that the nature of the plea raised and the stand taken by the
defendant in the written statement and at the trial is relevant to cull out the primary purpose behind
raising the demand for proof of ownership of the plaintiff over the suit property. The plea which is
a bona fide effort on the part of the tenant to protect himself by insisting on the plaintiff to satisfy
all the requirements of the relevant provision of law, cannot be said to be a malicious act of the
tenant/defendant. The pleading of the defendant has to be read and appreciated in the light of the
requirements of the provision which requires the decree for eviction.

32. The Apex Court further says that it would have been different if the tenant would have
raised such a plea as a malicious or wanton act of himself by raising on his own a dispute as to the
title of the landlord as owner of the suit premises though the question of ownership was not
germane to the claim for eviction or if he would have disowned his character as tenant whilst in
possession of the premises.

33. In the light of the principle discussed above, it is seen in the instant case that the tenant
never questioned the title of the original landlord on the basis of contract of tenancy. He claimed
himself as an owner on the basis of the sale deed executed by the original landlord in his favour. In
order to protect his interest, he has called upon the plaintiff to prove his title. The challenge to the
title of the plaintiff is based upon the plea that the plaintiff being a mortgagee cannot derive a valid
title from the original landlord on the basis of a declaratory decree without filing a suit for
foreclosure of mortgage. The instant case, therefore, cannot be said to be a case of denial of title of
the landlord and, therefore, benefit of Section 20(4) cannot be denied to the petitioner on that
ground and the plaintiff cannot ask for eviction on this ground.

34. Now only question left to be examined is whether the deposits would be deemed to be
conditional disentitling the tenant to claim the benefit of Section 20(4) of the Act. It is noted above
that a specific condition was knowingly put by the tenant while making the deposits that the
plaintiff would be entitled to receive money only after his rights are determined by the competent
civil court. The present suit was filed on 25.8.1987 and the tenant appeared on 4.2.1988. He
deposited dues of rent with interest and cost of suit on 25.11.1988. The declaratory decree was
obtained by the plaintiff/landlord on 9.2.1989 i.e. during the pendency of the present suit and after
the deposits were made by the tenant.

35. After getting the ex-parte decree, the plaintiff filed an amendment application claiming
his right in the suit property.
5 All. Sahaj Ram Vs Rajendra Prasad

975
36. The eviction suit was initially filed in the capacity of mortgagee on the ground that the
plaintiff had acquired interest in the suit property as the original owner had failed to redeem the
mortgage. The defendant though claimed rival title in the suit property, however, deposited the
entire dues of rent so as to protect himself from eviction from the suit property. The
protest/condition put by him before the SCC Court was that the deposited money would be paid to
the plaintiff only after his rights in the suit property are determined.

37. Prior to the filing of the instant suit, he was depositing rent under Section 30 of the Act.
The protest raised by the plaintiff regarding entitlement of the plaintiff to receive rent cannot make
the deposits conditional to entail eviction of the defendant within the meaning of Section 20(4) of
the Act.

38. The object of Section 20(4) of the Act has been discussed by this Court in Sheo Murti
Gupta (supra). It was held that the very intention of the deposit under Section 20(4) of the Act is to
protect tenants from unwarranted eviction on the mere premises that the tenant had committed
default in payment of rent due to the landlord. To obviate such a hazardous ordeal sub-section (4)
of Section 20 was enacted but with a clear intention that the tenant shall deposit the amount of rent,
costs of the suit, interest etc. in the Court unconditionally so that it may be paid to the landlord.

39. In the instant case, the tenant advanced a condition that the rent shall be kept in deposit
in the Court and shall not be paid to the petitioner till he is found to be owner/landlord based upon
his claim to the suit property. The question regarding ownership of the plaintiff or the defendant to
the suit property is pending before the Civil Court. However, in order to protect him from ordeal of
eviction, the defendant deposited the entire dues of rent for its payment to the landlord though he
has raised protest that he was not entitled to receive the same.

40. The deposits made by him are, therefore, held valid deposits, the eviction decree could
not have been passed.

41. Both the courts below have erred in coming to the conclusion that on account of the
condition put by the tenant while making the deposit as per Section 20(4), he was not entitled to
benefit of the said provision.

42. As discussed above the estoppel under 116 of the Evidence Act would not operate
against the defendant/tenant and, therefore, the defendant is entitled to claim benefit of Section
20(4) of the Act.

43. The protest raised by the defendant cannot be said to make the deposits unconditional.
It is held that the landlord would be entitled to receive the money even if his suit is dismissed.

44. The eviction decree dated 14.2.2011 passed by the SCC Court namely the Civil Judge
(Senior Division), Mathura in SCC suit No. 43 of 1987 and the order of affirmation of the
976 INDIAN LAW REPORTS ALLAHABAD SERIES
revisional court namely the Additional District Judge, Court No. 2, Mathura dated 5.2.2016 in SCC
Revision No. 10 of 2011 are hereby set aside. The SCC Suit No. 43 of 1987 is dismissed.

45. However, as the petitioner has not been declared owner till date and, therefore, in order
to protect the occupation of the petitioner/tenant, without prejudice to his rights seeking title in the
suit property it is directed that he shall continue to deposit the rent regularly month by month in the
Court below by filing a proper application under Section 30 of the Act. The plaintiff landlord
would be entitled to withdraw the money on an application moved by him. Alternatively, it is open
for the petitioner/tenant to tender rent directly to the plaintiff/landlord who shall issue rent receipts
as a proof of payment. It shall be a regular payment @ Rs. 2,000/- per month commencing from
1.7.2016 onward payable on 10.7.2016 till the rights of the parties are decided by the Civil Court.
The petitioner, even if succeeds would not be entitled to ask for refund of the amount paid by him
to the plaintiff/landlord for use and occupation of the building. Apart from this, the entire decreetal
amount shall be deposited, if not already, by the petitioner/tenant before the Court below within a
period of six weeks from today and the plaintiff/landlord will be entitled to withdraw the said
money.

46. It goes without saying that this Court has not entered into the merits of the rival claim
of title of the parties. Any observation made herein above would not come in the way of the parties
for establishing their rights in a Competent Court of law.

47. With the above directions and observations, the petition is allowed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No.- 5443 Of 2016
&
Misc. Bench No.- 8944 Of 2016

M/S Fibremarx Papers Pvt Ltd. & Anr. ...Petitioners
 Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Shishir Chandra

Counsel for the Respondents:
C.S.C,Anurag Kumar Singh