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TMI Blog2019 (10) TMI 1575X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cantonment Board, Kanpur to construct the building over the demised land which was granted by the Cantonment Board, Kanpur, vide letter No.1/6/8156 dated 13.11.1964. However, the aforesaid Sri A.P.S. Carvalho transferred the leased land to the original plaintiff Smt. Lakshmi Devi by a registered deed dated 11.05.1965. The aforesaid transfer was regularised by resolution of the Cantonment Board dated 22.10.1982 with reference to CVR dated 07.07.1971. The original plaintiff/ landlady constructed a house over the leased land. She had inducted one Sri Suresh Chandra Khanna (husband of the defendant-respondent No.2) as tenant in the said house. Thus, the owner and landlady of the disputed house was the original plaintiff Smt. Lakshmi Devi and Sri Suresh Chandra Khanna was the original tenant and after his death, the tenancy was succeeded by his wife Smt. Bina Khanna (defendant-respondent No.2 herein). 3. The original plaintiff-landlady filed a release application under Section 21(1)(a) of U.P. Act XIII of 1972 for release of the disputed house on the ground of her bona-fide need and also eviction of the tenant on the ground of subletting. The aforesaid case was registered as Case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing which is owned by the plaintiff and which was constructed over the leased land. Therefore, so far as the disputed building is concerned, the plaintiff is undisputedly the landlord. Therefore, the provisions of Section 2(1)(a) is not attracted on the facts and circumstances of the present case but the appellate court, without application of mind and without realising that the applicability of the provisions of U.P. Act XIII of 1972 is not part of pleadings or the memorandum of appeal; allowed the appeal and thus, committed grave error of law. (iii) Even otherwise the provisions of Section 2(1)(a) are not attracted in view of the law laid down by Hon'ble Supreme Court. (iv) It was admitted case of the tenant that the plaintiff is the landlord and he is the tenant of the disputed house. Therefore, he is stopped from denying the landlordship of the plaintiff-petitioner in view of provisions of Section 116 of the Indian Evidence Act and the law laid down by Hon'ble Supreme Court in D. Satyanarayana vs P. Jagadish, (1987) 4 SCC 424 and the judgment of this in Aj Prakashan Ltd. vs. Vinit Sachdeva and another, 2017 (3) ARC 537 (Para-13) and another judgment of Hon'ble S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the courts to decide the rights of parties in trial as held by Hon'ble Supreme Court in State of Maharashtra vs. Hindustan Construction Company Ltd., (2010) 4 SCC 518 (Para-16). 11. In Poonam Vs. Sumit Tanwar, (2010) 4 SCC 460 (Para-22), Hon'ble Supreme Court explained the provisions of Order VI Rules 1 and 2, C.P.C. and held as under: "In case, petitioner's counsel is not able to raise a factual or legal issue, though such a point may have a good merit, the Court should not decide the same as the opposite counsel does not "have a fair opportunity to answer the line of reasoning adopted" in this behalf." 12. As observed in paragraph-4 above, the defendant-respondent has admitted himself in the written statement to be the tenant of the building in question and the plaintiff-petitioner to be landlord thereof. Thus, the landlord-tenant relationship in respect of the disputed building was admitted. Neither in the written statement nor in the memorandum of appeal, the defendant-tenant/ respondent has not taken any objection or ground disputing or denying the applicability of U.P. Act XIII of 1972. Therefore, in the absence of any pleadings, it was not permissible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by in its pleadings. 11. Therefore, in dealing with Mr. Setalvad's argument, our enquiry should not be so much about the form of the pleadings as their substance; we must find out whether the ground of licence on which the plaintiff's claim for ejectment has been confirmed by the High Court was in substance the subject-matter of the trial or not; did the defendant know that alternatively, the plaintiff would rely upon the plea of licence and has evidence been given about the said plea by both the parties or not ? If the answers to these questions are in favour of the plaintiff, then the technical objection that the plaint did not specifically make out a case for licence, would not avail the defendant." 16. The exceptional cases for the principles and test for upholding a decision on a plea not covered by pleadings and issues struck in the trial court, has been generally summarised by a D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit." 19. In Ramrao and others vs. All India Backward Class Bank Employees Welfare Association and others, (2004) 2 SCC 76 (para26), Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping in view the facts and circumstances of the case any additional points are to be raised then the concerned and affected parties should be put to the notice on the additional points to satisfy the principles of natural justice. Parties cannot be taken by surprise. We leave the discussion here." 21. In Messrs. Trojan & Co. vs. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235 (Para-22), Hon'ble Supreme Court held as under: "It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case." 22. In view of the above discussion, I hold that the impugned judgment on the points beyond pleadings cannot be sustained. Scope of release application for eviction of a tenant in a rent case:- 23. It is settled law that in an eviction suit filed by a landlord against the defendant-tenant, the landlord and tenant are the only necessary parties. The plaintiff-landlord in such a suit is required to plead and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.XIII of 1972, which is an inclusive definition and means a residential or non-residential roofed structure. Neither Section 21(1) nor the definition of the word "building" in Section 3(i) of the U.P. Act XIII of 1972 requires that the land of the building should be free-hold or it should not be a leased land. Therefore, for the purposes of Section 21(1) of the Act, the relevant consideration is the building of which the applicant should be the landlord and person whose eviction is sought, should be a tenant and there is landlord-tenant relationship between them. Principles of Estoppel:- 26. Thus, as per undisputed facts as briefly noted above and also as per his own stand of the defendant-respondent he is the tenant of the disputed house of which the plaintiff-petitioner is the landlord. Therefore, the defendant-respondent is estopped from denying the landlordship of the plaintiff-petitioner in view of Section 116 of the Indian Evidence Act. This legal position is also supported by the law laid down by Hon'ble Supreme Court in the case of D. Satya Narayan vs. P. Jagdish (1987) 4 SCC 424 and State of Andhra Pradesh and others vs. D. Raghukul Pershad (dead) by LRs and others, ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee of the original landlord of the demised property in an action brought by the assignee against the tenant for his eviction under the Rent laws. However, this right of a tenant is subject to one caveat that the tenant has not attorned to the assignee. If the tenant pays rent to the assignee or otherwise accepts the assignee's title over the demised property, then it results in creation of the attornment which, in turn, deprives the tenant to challenge the derivative title of the landlord. [See Bismillah De (dead) by Legal Representatives vs. Majeed Shah. 2017 (2) SCC 274 Para 24]" 29. In Kamaljit Singh vs. Sarabjit Singh, 2014 (3) ARC 210 (Paragraphs-16, 17 and 19), Hon'ble Supreme Court held as under:- "16. There is considerable authority for the proposition both in India as well as in U.K. that a tenant in possession of the property cannot deny the title of the landlord. But if he wishes to do so he must first surrender the possession of the property back to him. He cannot, while enjoying the benefit conferred upon him by the benefactor, question latter's title to the property. Section 116 clearly lends itself to that interpretation when it says: "116. Estoppel of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in manifest error in holding that the appellant-landlord was obliged to prove his title to the property, no matter the tenant clearly admits the existence of jural relationship of landlord and tenant between him and the appellant. We have, in the circumstances no hesitation in reversing the view taken by the Courts below and in decreeing the eviction petition." 30. Thus, under the facts and circumstances of the case, it was not permissible for the defendant-tenant/ respondent to deny the title of the plaintiff-petitioner. CONCLUSION:- 31. The discussion made and conclusions reached above are briefly summarized, as under:- Pleadings and Decision:- (i) A party cannot make out a case on the basis of an evidence for which he/ she has laid no foundation in the pleadings. It is fairly well settled that no amount of evidence can prove a case for a party who has not set up the same in his/ her pleadings. (ii) Neither in the written statement nor in the memorandum of appeal, the defendant-tenant/ respondent has not taken any objection or ground disputing or denying the applicability of U.P. Act XIII of 1972. Therefore, in the absence of any pleadings, it was not permissible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. Jurisdiction in a case of eviction of tenant:- (vi) Jurisdiction of a court has to be determined on the basis of plaint allegation alone and on the defence taken in written statement. The jurisdiction of the Prescribed Authority under the U.P. Act XIII of 1972 is essentially one for eviction of a tenant or release of the tenanted accommodation of a building as defined in Section 3(i) and not as to whether the land over which building is constructed is a leased land or a free-hold land. Scope of release applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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