1. The first defendant is the appellant. The suit out of which this appeal arises is one in ejectment and for recovery of damages for use and occupation. The suit property which is a land with building was originally owned by Khader Masthan and Mohideen Masthan who are brothers. Both of them are dead. Mohamed Hanifa, the son of Khader Masthan had leased out the property to the first defendant on a monthly rent of Rs. 100. Defendants 2 to 11 are in possession of portions of the property as sub-lessees under the first defendant.
2. Subsequently the heirs of Khader Masthan and Mohideen Masthan including the abovesaid Mohamed Hanifa who had leased out the property to the first defendant sold the property to the plaintiff under Exhibit A-1 dated 17th February, 1966. The vendors have issued a notice as per Exhibit B-5 dated 19th February, 1966 to the first defendant intimating about the abovesaid sale of the property to the plaintiff. The plaintiff herself issued a notice, Exhibit B-4, dated 21st February, 1966 intimating the first defendant about her purchase of the property. Further correspondence followed. In the meanwhile, that is On 7th March, 1966 and 31st March, 1966, the first defendant took two sale deeds from some of the heirs of the abovesaid Khader Masthan and Mohideen Masthan and under each of the sale deeds, a 13/96 share is said to be conveyed to the first defendant by those heirs. By virtue of these two sale deeds, the first defendant claimed that he had become the owner of 13/48 share in the property and that the plaintiff cannot claim ownership to the entire property. Ultimately, the plaintiff issued the notice Exhibit B-8 dated 22nd March, 1966 terminating the tenancy and calling upon the first defendant to vacate with effect from 31st May, 1966. This was followed up by a petition for eviction in the Rent Control Court. H.R.C. No. 3992 of 1966 is the petition filed by the plaintiff for eviction on three grounds, namely (1) wilful default in payment of rent (2) subletting the premises without the written consent of the landlord and (3) the landlord requiring the premises for her own occupation. In that petition the first defendant denied the petitioner's (Plaintiff's) title to the property. The Rent Controller recorded a finding that the denial of title made by the first defendant is bona fide. By virtue of the second proviso to Section 10 (1) of Act XVIII of 1960 once the Rent Controller records a finding that there is a bona fide denial of title, then the ordinary Civil Court would get jurisdiction to evict the tenant provided any one of the grounds under the Rent Control Act is made out. It is by virtue of the said proviso, the suit out of which this appeal arises had been filed. The plaintiff claimed possession of the property and also arrears of rent at the rate of Rs. 100 per month upto 31st May, 1966 as well as damages for use and occupation at the rate of Rs. 300 per month from 1st June, 1966 onwards.
3. The first defendant raised various contentions and a number of issues had been raised before the trial Court. The question whether the first defendant had become a co-owner of the suit property by virtue of the sale deeds Exhibits B-2 and B-3 in her favour and on that score the plaintiff should be non-suited had been raised but that had not been pressed before the lower Court. After negativing the other contentions raised by the first defendant the Court below decreed the suit but did not agree with the plaintiff that she is entitled to damages for use and occupation at the rate of Rs. 300 per month from 31st May, 1966. The Court has held that the plaintiff is entitled to recover only rent at the rate of Rs. 100 per mensem right from the date of Exhibit A-1, the sale in favour of the plaintiff till date of delivery of possession. The plaintiff has not filed any appeal or cross-objections regarding the damages for use and occupation claimed by her.
4. Three contentions were raised by the learned Counsel for the first defendant (appellant) in this appeal. The first is that the Court below should have necessarily gone into the question of title to the property before ever it entertained the plea whether the plaintiff is entitled to possession of the entire suit property. It is contended that once the Rent Controller holds that there is a bona fide dispute regarding title then the Civil Court cannot order eviction without deciding the question of title. The second contention raised is that the Court below ought to have held that there was no relationship of landlord and tenant between the plaintiff and the first defendant. Thirdly it is contended that in any event the plaintiff would not be entitled to claim the entire rent of Rs. 100 per month but only a portion of it in as much as the first defendant herself has become the owner of 13/48 share in the said property. But none of these contentions are tenable.
5. Regarding the first contention raised by the learned Counsel, the second proviso to Section 10 (1) of Act XVIII of 1960 has to foe noted. That is in the following terms:
Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
In considering the effect of the second proviso to Section 7 (1) of Act XXV of 1949 which corresponds to the present provision, a Division Bench of this Court in Sanjeevi Naidu v. Chittibabu Mudaliar observed:
That proviso contemplates first a petition before the Rent Controller himself for eviction and a denial of title an such proceeding. If the Controller decides that the denial of title is bona fide and records a finding to that effect then the landlord would be entitled to sue for eviction of the tenant in a Civil Court. But even here the decree for eviction can only be passed on any of the grounds mentioned in section '7.
* * * * The effect of the proviso is that even if a Civil Court finds that the claim of the tenant is not well-founded, the tenant can be evicted only on any of the grounds mentioned in Section 7. In other words, even when the tenant has denied the title of the landlord and his denial has been found to be without foundation, he will be entitled to the benefits of Section 7 (2).
From the language of the proviso itself, it is quite clear that the civil suit contemplated is only to be in a different form (than the Rent Control Court) and even in such a suit (if it is based on tenancy) eviction can be ordered only as per the provisions of the Rent Control Act and not otherwise. The present suit is clearly one contemplated by the abovesaid proviso. As already seen the Rent Control Court has recorded a finding that the denial of title is bona fide.
Once the rent Controller records a finding that the denial of title is bona fide, the Civil Court has jurisdiction to entertain a suit for eviction, but it can order eviction only on any of the grounds enumerated in the provisions of the Rent Control Act-In the present case, it is not the contention on behalf of the first defendant that none of the grounds mentioned in Section 10 (2) of Act XVIII of 1960 has been made out and that therefore the Civil Court ought not to have ordered eviction. As I said, the contention is that the Civil Court should necessarily have gone into the question of title before ever it entertained the plea of eviction. But in the language of the proviso to Section 10 (1) referred above, there is nothing to show that the Civil Court before entertaining the plea for eviction should necessarily decide the question of title. As the proviso contemplates an order of eviction being passed by the Civil Court on any of the grounds available before the Rent Controller, it necessarily follows that the suit contemplated is one based on tenancy. Therefore it is not right to contend that once the Rent Controller has given a finding that there is bona fide dispute regarding title, the suit should be one on title and not merely on tenancy. As a matter of fact it had been conceded in the Court below that the question of title need not be gone into and that the only question to be decided was whether the relationship of landlord and tenant existed between the plaintiff and the first defendant. Because of the abovesaid concession, the issues relating to the question of title had not been decided. As a matter of fact by consent of parties the issues came to be deleted. Therefore it is not now open to the first defendant to contend that the suit ought to have been based on title and the Court below ought to have given a finding regarding title before ever it entertained the plea of eviction.
6. Therefore, the real question is whether the relationship of landlord and tenant existed between the plaintiff and the first defendant. In this case, the original lessor was Mohamed Hanifa, even though he was only one of the sharers of the property. Admittedly, the first defendant had been paying rent only to Mohamed Hanifa and the said Mohamed Hanifa along with other sharers has executed a sale to the plaintiff under Exhibit A-1 dated 17th February 1966. It is stated that the persons who purported to convey some shares in the property to the first defendant under Exhibits B-2 and B-3 did not have any such share on the relevant date by virtue of the partition that took place amongst the various sharers. Exhibits A-5 and A-6 are two partition deeds of the same date, namely 7th December, 1957 under which the heirs of Khader Masthan and Mohideen Masthan had partitioned their property including the suit property. It is stated that as per the terms of the above-said two partition deeds, the persons who purported to convey some shares to the first defendant under Exhibits B-2 and B-3 had taken some other property and after the said partition they had no interest at all in the suit property. But it is not necessary to go into this aspect as the question of title is not being decided in this suit. What is relevant to be noticed is that the original lessor was Mohamed Hanifa as it was to him the first defendant had been paying rents and this Mohamed Hanifa along with other sharers had sold the property to the plaintiff under Exhibit A-1.
7. Under Section 116 of the Indian Evidence Act, no tenant of immovable property can, during the continuance of the tenancy deny that the landlord had at the beginning of the tenancy a title to such immovable property. It has been pointed out by the Privy Council in Krishna Prasad Lal v. B.C. Concern Ltd. (1937) 2 M.L.J. 286 : 64 I.A. 311 : 46 L.W. 201 : A.I.R. 1937 P.C. 251, that the tenancy does not begin afresh every time the interest of the landlord (or of the tenant) devolves upon a new individual by succession or assignment and that even in a case where the original lessor has transferred his interest to another, the tenant is not free from the estoppel imposed by Section 116 of the Indian Evidence Act. Mr. Ahmed Meeran, learned Counsel for the first defendant (appellant) referring to the decision reported in Muhammad Hussain v. Abdul Gaffoor (1945) 1 M.L.J. 475 : I.L.R. (1946) Mad. 44 : A.I.R. 1945 Mad. 321 : 58 LW. 200, contended that the estoppel under Section 116 of the Evidence Act would not be applicable to the present case. But he is not right. That was a case where the plaintiff along with two others had taken a lease of certain property and subsequently the plaintiff purchased the shares of two out of the three co-owners of the suit property and sued the remaining sharers for partition, of the property even before the lease of the property had expired. It was contended that by virtue of Section 116 of the Evidence Act such a suit was not maintainable. The said contention was rejected and the Division Bench pointed out that the plea of estoppel under Section 116 of the Evidence Act was not applicable as the question raised between the parties, arose not in the relationship of landlord and tenant but of vendor and purchaser. The present case is based only on tenancy as already seen. Therefore the above-said Bench decision of this Court would have no application.
8. Under Section 109 of the Transfer of Property Act if the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee in the absence of a contract to the contrary shall possess all the rights of the transferor. Therefore, even if the plaintiff has not become the owner of the entire property, but she obtained title only to a part of the interest of the lessor by virtue-of the sale deed, Exhibit A-1, she is entitled to all the rights of the lessor. The plaintiff, as the successor-in-interest of the lessor would undoubtedly be entitled to sue for possession of the property. Under such circumstances, it is not open to the first defendant to contend that no relationship of landlord and tenant existed between the plaintiff and herself and that therefore the suit in ejectment should fail.
9. The learned Counsel contends that the plaintiff is barred by the principles of res judicata from contending that the relationship of landlord and tenant existed between her and the first defendant. It is stated that the Rent Controller while disposing of H.R.C. No. 3992 of 1966 has recorded a finding that no relationship of landlord and tenant existed between the parties. It is claimed that that finding operates as res judicata against the plaintiff now contending that he is the lessor and the first defendant is the lessee in respect of the premises. In this connection the learned Counsel referred to Union of India V. Nanak Singh , which is a case where the plaintiff had originally filed a writ petition challenging the termination of his temporary service on grounds of infringement of Article 311 of the Constitution and the competence of the authority ordering termination. The petition came to be dismissed. After that he filed a suit in the civil Court. It was held by the Supreme Court as seen from the head-note which brings out the point correctly:
Provisions of Section 11, Civil Procedure Code, are not exclusive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and on the general principle of res judicata any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly should be competent to decide the subsequent suit or that the former proceeding and the subsequent suit should have the same subject-matter. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest.
10. In the present case, assuming that the Rent Controller has held that in H.R. C. No. 3992 of 1966 that no relationship of landlord and tenant existed between the parties, I am of the view that in the circumstances of the case, he was not competent to decide that question. It must be remembered that the denial of title made by the tenant was bona fide. As already seen, the second proviso to Section 10 (1) of Act XVIII of 1960 says that once such a finding is recorded, the landlord will be entitled to sue for eviction of the tenant in a civil Court. The Rent Controller having asked under the abovesaid proviso and recorded the finding that there was a bona fide dispute regarding title, he had no jurisdiction to go into the question whether the relationship of landlord and tenant did exist or not. This is a matter which has to be decided only by the Civil Court as and when the landlord filed the suit for eviction by virtue of the abovesaid proviso. The observation of the Rent Controller regarding this aspect occurs after he recorded the finding that the denial of title was bona fide. The only sentence is as follows:
Further, there is nothing on record to show that the petitioner substantiated the relationship of landlord and tenant between herself and the respondent after she became the owner of the petition premises.
The above sentence in the order of the Rent Controller is really in the nature of an observation and not a finding. All that the Rent Controller appears to say is that after the plaintiff (petitioner before him) had purchased the property, there was no fresh lease agreement and the first defendant (respondent before him) had not recognised the plaintiff as the landlord. This cannot be stated to be a clear finding that no relationship of landlord and tenant existed between the plaintiff and the first defendant. As a matter of fact it had not been contended before the trial Court that the Rent Controller had given a finding that no relationship of landlord and tenant existed between the parties and that finding operates as res judicata.
11. The last contention is regarding the question whether the plaintiff is entitled to collect the entire rent of Rs. 100 per month or only a portion thereof. It is contended on behalf of the first defendant, by virtue of Section 37 and the last para of Section 109, Transfer of Property Act, that the plaintiff can claim only proportionate rent and not the entirety inasmuch as Exhibit A-1 did not convey title to the entire property though it purported to do so. But in view of the fact that the first defendant had taken the position before the trial Court that the question of title need not be gone into, it has to be taken that as far as these proceedings are concerned the plaintiff became entitled to collect the entire rent due from the tenant.
12. The appeal fails and the same is dismissed with costs.
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