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Sultan And Others v. Ganesh And Others
Factual and Procedural Background
The respondent-plaintiff purchased Plot No. A-11 (50′ × 90′) in Rambabu-Ka-Aahata, now Sen Colony, Jaipur, under a registered sale deed dated 15-4-1957 executed by K.K. Sen, the son of the original owner Rambabu Sen. Prior to this sale, the father of the present appellants, Late Johari, had executed a registered rent note on 23-1-1949 (effective from 1-1-1949) in favour of K.K. Sen and occupied part of Plot No. A-11.
After purchasing the plot, the respondents wished to construct a house, but the appellants claimed ownership and obstructed them. An earlier suit for injunction was withdrawn on 6-7-1967, and the present suit—seeking (i) declaration of the respondents’ title, (ii) possession of the portion in appellants’ occupation, and (iii) rent/mesne profits—was instituted.
The trial court decreed the suit, holding the appellants to be tenants of K.K. Sen and awarding possession and rent to the respondents. The Additional District Judge dismissed the first appeal. The Rajasthan High Court, in Civil Second Appeal No. 267 of 1981, affirmed these concurrent findings. The appellants then approached the Supreme Court by special leave.
Legal Issues Presented
- Whether the appellants, who were found to be tenants of K.K. Sen, could defeat the respondents’ title by claiming ownership through adverse possession.
- Whether a civil suit for declaration of title, possession and recovery of rent/mesne profits was barred or should have been stayed because of tenant-protection provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (including the later-inserted Section 13-A).
- Whether, upon the court’s finding that a landlord-tenant relationship existed, the dispute ought to have been relegated exclusively to the rent-control forum under Section 13 of the 1950 Act.
Arguments of the Parties
Appellants’ Arguments
- Denied ever being tenants of K.K. Sen or the respondents; asserted absolute ownership by adverse possession for more than 12 years.
- Contended that a civil court, after declaring the appellants to be tenants, could not decree eviction or recovery of arrears of rent in view of Section 13 of the 1950 Rent Restriction Act; the suit should have been dismissed or the parties directed to the rent-control forum.
- Invoked the 1979 amendment introducing Section 13-A to claim statutory protection available to tenants in cases of alleged non-payment of rent.
Respondents’ Arguments
- Maintained that the appellants (and their predecessor Johari) occupied the land solely as tenants under the registered rent note of 1949.
- Asserted valid title acquired by the registered sale deed of 15-4-1957, entitling them to possession and mesne profits.
- Emphasised that the appellants had consistently denied their landlord’s title, a ground that would, in any event, justify eviction even under rent-control law.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gyan Chand v. K.B. Lal, (1977) 3 SCC 317; AIR 1977 SC 858; (1977) 2 SCR 324 | Tenant’s entitlement to protection under Section 13-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. | Relied upon by the appellants; the Supreme Court held it inapplicable because the present suit was founded on title, and the appellants had never pleaded tenancy-protection in earlier proceedings. |
Court's Reasoning and Analysis
The Supreme Court first noted the concurrent factual finding of the trial court, first appellate court, and High Court that the appellants were tenants of K.K. Sen and, by succession, of the respondents. The appellants’ own admissions (statements of Sultan and his father Johari) corroborated the existence of the tenancy. As tenants, their subsequent encroachment on an additional portion of land could not ripen into adverse possession against the landlord, particularly in view of Section 108 of the Transfer of Property Act which preserves the landlord’s title during the term of tenancy.
Regarding the alleged bar under the Rent Act, the Court held that the appellants themselves had consistently repudiated the tenancy and claimed ownership; they had never sought statutory protection in the written statement, at trial, or before the High Court. Consequently, the question of invoking Section 13 or Section 13-A raised factual issues not pleaded or adjudicated below and could not be entertained for the first time in the Supreme Court.
The Court emphasised that because the suit was based on the respondents’ title and possession rights, and because the appellants’ principal defence was adverse possession, the civil court had full jurisdiction to decree possession and mesne profits. The plea of tenant-protection under the Rent Act, not having been raised earlier, was deemed waived and, in any event, incompatible with the appellants’ denial of the tenancy.
Holding and Implications
Appeal Dismissed with Costs. The Supreme Court refused to interfere with the concurrent findings of the lower courts and upheld the decree granting the respondents possession of the disputed land and entitlement to rent/mesne profits. Costs of Rs 2,000 were awarded against the appellants.
Implications: The decision affirms that a tenant who repudiates the landlord’s title and claims ownership cannot subsequently invoke statutory tenant-protection provisions. It also confirms that civil courts retain jurisdiction over suits founded on title, even where a landlord-tenant relationship is in dispute, and that mere encroachment by a tenant does not establish adverse possession.
G.L Oza, J.— This appeal on special leave has been filed by the appellant against the judgment and decree passed by Rajasthan High Court in Civil Second Appeal No. 267 of 1981 wherein the concurrent judgment of the two courts below was maintained.
2. Brief facts material for disposal of this appeal are that the respondent-plaintiff purchased a plot of land No. A-11 measuring 50′ × 90′ in Rambabu-Ka-Aahata situated at Station Road, Jaipur which is now known as Sen Colony. After the death of Rambabu Sen, his son K.K Sen became the owner of colony, the land was divided into plots and the scheme was approved by the Municipal Council.
3. Father of the present appellants Sultan and plaintiffs were living in Rambabu-Ka-Aahata as tenants. Late Johari took on rent a piece of land from K.K Sen and executed a rent note on 23-1-1949. This rent note came into force from 1-1-1949 and was registered on 18-2-1949. Shri K.K Sen executed a registered sale deed dated 15-4-1957 in favour of the plaintiff respondents. Consequently the appellants became the tenants of the respondents from 15-4-1957. The plaintiff respondents wanted to build a house for themselves on this disputed land but the present appellants claimed to be the owners of the land. Consequently the respondents filed a suit for permanent injunction against the present appellants which was subsequently withdrawn on 6-7-1967 and the present suit for declaration of title of the respondents as the owners of Plot No. A-11 in Sen Colony and for possession of such portion of this plot which was in occupation of the appellants-defendant and the rent and damages was filed. The present appellants in their written statement asserted that they were not the tenants of K.K Sen or any other person and K.K Sen had no right to sell the plot and also claimed adverse possession for more than 12 years and therefore sought the dismissal of the suit filed by the respondent landlord.
4. Learned Trial Court framed a number of issues and after recording the evidence of both the parties decreed the suit of the respondent-plaintiffs holding that they were the tenants of K.K Sen and decree for possession and rent was passed in favour of the respondents. The present appellants preferred an appeal in the court of Additional District Judge I, Jaipur City who after hearing the parties also confirmed the decree passed by the trial court and dismissed the appeal filed by the appellants. Thereafter the appellants filed a second appeal before the High Court and by the impugned judgment the High Court dismissed this appeal and it is thus that the present appeal is before us.
5. The questions which were raised before the High Court were in respect of lease executed by the appellants and the right of the respondent landlord to seek the relief as prayed in the present suit. The learned Judge of the High Court went into evidence and referring to the statement of Sultan, the present appellant found that he himself admitted that he was a tenant in Plot No. 10-11 and even Johari, father of Sultan in his statement admitted that he was a tenant of K.K Sen in Plot No. 10-11 and after considering all these facts, the learned High Court came to the conclusion that although the appellants were in possession of some portion of the land which did not form the part of the lease in their favour but in view of Section 108 of the Transfer of Property Act, it will not make much difference and the respondents- plaintiff were therefore held entitled to a decree for possession. The learned Judge therefore came to the conclusion that in view of the fact that they were tenants of K.K Sen, they cannot claim title on the basis of adverse possession merely because they encroached upon a portion of land while they were tenants of K.K Sen and on this ground the appeal filed by the appellants was dismissed.
6. In the special leave petition filed in this Court, four grounds were urged. It was contended that in a suit for declaration and possession, direction for recovery of arrears of rent and eviction also could not be granted. In face of Section 13 of the 1950 Rent Restriction Act and in this context it was also urged that as soon as the court gave a declaration that the appellant was the tenant of the respondent, the civil courts should have stayed its hand and directed the parties to take recourse of 1950 Rent Act and in this context it was contended that the appellants were entitled to the protection under the Rent Act. The other grounds urged was regarding derivation of title on the basis of adverse possession.
7. It is clear that the relationship of landlord and tenant between the appellant and respondent was not admitted. Even before filing of the present suit the appellants disputed the relationship and claimed to be the owners on the basis of adverse possession. In fact it was under these circumstances that when the respondent who purchased this plot of land from K.K Sen and wanted to construct the present appellants claimed to be the owners and obstructed the construction and therefore initially the suit for injunction was filed and it appears that the suit was withdrawn and the present suit for declaration of title and possession was filed. In this suit, a decree for mesne profits and rent also was claimed. Therefore the contention that the present appellant tenants could not be evicted in a suit on this ground, does not appear to be justified as in fact the suit was filed on the basis of title and the appellants never raised any plea of protection but relied on adverse possession and in this view of the matter it could not be said that the suit could not be decreed. In fact this plea that the appellant who is the tenant is protected under the provisions of the Rent Act was not raised at any time in the courts below. Even in the judgment of the High Court there is nothing to indicate that such a contention was raised before the High Court.
8. It was contended before us that as one of the grounds for termination of the lease was alleged to be non-payment of rent and as during the pendency of these proceedings the Rajasthan Rent Act was amended and Section 13-A was introduced, the appellant ought to have been given this protection under Section 13-A, and it was in respect of this contention that reliance was placed on the decision of this Court in Gyan Chand v. K.B Lal (1977) 3 SCC 317, AIR 1977 SC 858, (1977) 2 SCR 324. In fact so far as the present appeal is concerned, this is not a suit for eviction under the Rent Act but a suit for possession based on title as from the very beginning. So far as the appellant is concerned he denied the relationship of landlord and tenant and claimed to be the owner by adverse possession and therefore at this stage in this appeal before this Court on special leave, the plea on this ground could not be raised. This ground was not raised even before the High Court. In fact in the written statement in reply to the allegation in the plaint that the present appellants were the tenants of Shri K.K Sen, it was specifically stated that they were never tenants of Shri K.K Sen nor they executed any rent note and clearly raised a plea of adverse possession and ownership. In the written statement filed by the appellants no plea in respect of protection under Rent Act was raised and issues framed by the trial court also indicate that no such issue in respect of protection was raised. It is true that as it was alleged by the respondents-plaintiff that the defendants appellants denied the title of the respondents-plaintiff even before the present suit was filed and therefore that was mentioned as one of the grounds on which even under the Rent Act the plaintiff is entitled to a decree of eviction and in fact that issue has been found in favour of the plaintiff-respondents and the appellants have continued the denial of title and in fact contested the suit solely on that basis. In this view of the matter it could not be contended that a decree for possession could not be passed when admittedly the appellants did not plead to be tenant seeking any protection and one of the grounds which has been held to be proved is that the appellant-defendant has denied the title of the respondent-plaintiff from the beginning even before the present suit was filed.
9. The question as to whether the appellant is entitled to protection under the Rent Act as has not been raised at any stage it could not be gone into at this stage as it involves disputed questions of fact. The contention therefore advanced on behalf of the appellants cannot be accepted.
10. The main plea which has been agitated up to the High Court vigorously has been the ground of adverse possession and denial of the tenancy of K.K Sen. In this view of the matter we therefore see no reason to entertain this appeal. It is therefore dismissed with costs. The respondents shall be entitled to costs. Counsel fee Rs 2000.
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