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2016 (5) TMI 642 - HC - Indian LawsEntitlement to possession of the entire property including the portion in respect of which the appellant claims to be a tenant - Held that:- Even assuming that the first respondent was aware of the appellant’s use and occupation of the premises it would make no difference. It is not necessary that a party possesses or occupies a property only as a tenant. The possession and occupation may also be on the basis of a licence including a gratuitous licence. If it is a bare licence it can be terminated at any time. It is not the appellant’s case that it occupied the premises under an irrevocable licence. The possession or occupation could also be as a mortgagee such as in the case of usufructuary mortgage. Thus, mere use and occupation of the premises by the appellant does not justify a conclusion that the first respondent was aware that the appellant’s occupation of the premises was as a tenant. The necessity of specifying the tenancy in view of Order 21 Rule 66 (2) (e) of the Code of Civil Procedure is so obvious that it would occur to anyone especially a party such as the appellant who has the benefit of legal advice. We would not assume mala fides on the appellant’s part. If the necessity to specify the tenancy is obvious and if we are not to assume mala fides on the part of the appellant bank, it would follow that had the appellant actually been a tenant of the property it would have disclosed the same. That it did not do so is a strong indication that it was not a tenant. The appellant thereby by its own act and deed led the first respondent to believe that it did not possess any tenancy rights in respect of the property. The learned Judge, therefore, rightly held that the appellant is estopped from contending to the contrary. The first respondent or any auction purchaser would not be able to plead an estoppel against a third party who or which is not responsible for any incorrect statement or a failure to mention the relevant fact in the execution proceedings. The estoppel can certainly be pleaded against the decree holder who fails deliberately or otherwise to mention/disclose the right that it claims to have in respect of the property to be sold in execution. In these circumstances, it is not necessary to consider the provisions of Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973. It was relied upon on behalf of the appellant to contend that a tenant cannot be evicted in execution of a decree. On behalf of the respondents it is, however, contended that the Act does not apply. We are, therefore, entirely in agreement with the learned Judge that the appellant is estopped from setting up its claim as a tenant.
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