[2025:RJ-JP:23247] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 157/2000 Abdul Zubbar S/o Shri Shakoor Mohammad Who Died On 20.6.2005 And Now Represented by The Following Legal Representatives:- I) Ms Malka Bibi (daughter), aged 40 yrs. ii) Sardar Bibi (daughter), aged 34 yrs. Iii) Shahid Mohammad (son), aged 38 yrs. (iv) Jahid Mahammad (son), aged 36 yrs (v) Abid Mohammad, (son) aged 32 yrs. All r/o 5/222, Inder Kot, Ajmer ----Appellants/defendants Versus Naseer Mohammad S/o Shri Naiz Mohammad, R/o Inderkota Ajmer ----Respondents/Plaintiff For Appellant(s) : Mr. Harshad Kapoor For Respondent(s) : Mr. Jitendra Mishra HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment 12/05/2025 1. The instant second appeal is preferred by the appellant- defendant aggrieved from judgment dated 07.03.2000 in Civil Regular Appeal No.127/1990 passed by learned Additional District Judge No.2, Ajmer, whereby the appeal preferred by plaintiff- respondent-Naseer Mohammad from dismissal of Civil Suit No.111/1984 (163/1984) passed by the Additional Munsif Magistrate City (West) Ajmer, was allowed and a decree of eviction and arrears of rent is passed after setting aside decree of trial Court. [2025:RJ-JP:23247] (2 of 9) [CSA-157/2000] 2. Learned counsel for the appellants while referring and relying upon grounds of appeal submitted that the plaintiff has filed a civil suit for eviction under the Rajasthan Rent Control Act, 1950, but appellant-defendant has not only denied the title of plaintiff (landlord) but also denied the relationship of landlord and tenant between the parties. He further submitted that the trial Court has considered the evidence of both the parties and after considering the grounds of denial of relationship and also claim of appellant- defendant has decided the issues against the plaintiff which resulted into dismissal of civil suit for eviction. He further submitted that there is no incident or document on record to show that appellant-defendant has ever made any payment of rent to the plaintiff or his father. He also submitted a suit for eviction is not maintainable on the ground that there exists no relationship of landlord and tenant between the parties. He also submitted that the Appellate Court has travelled beyond the record and evidence of the case and drawn an erroneous conclusion on assumptions. He further referred judgment in case of Pushpa Sharma Vs. Gopal Lal : AIR 1986 Raj 187 and submitted that a decree for possession can be granted only in a case where the plaintiff has able to establish his title but defendant has failed to rebut the same. He also submitted that the Appellate Court while ignoring the evidence of defendant has passed an erroneous decree in favour of respondent herein. 3. Aforesaid contentions were opposed by learned counsel for the respondent-plaintiff and he submitted that the plaintiff has filed a suit on basis of relationship of landlord and tenant and in [2025:RJ-JP:23247] (3 of 9) [CSA-157/2000] his evidence the plaintiff has established that suit property belongs to his forefathers Niad Mohd. Taya Allah who purchased it from Rajak Mohd. and these title documents were filed on record. He also submitted that the property is also mentioned in the record of Municipal Council. He further submitted that the trial Court has to determine a relationship of landlord and tenant and in case defendant denies the relationship of landlord and tenant then a presumption under Section 116 of Evidence Act can be drawn by the Court. He further submitted that even law over the point is well settled that if the title documents are in favour of plaintiff even then a decree for eviction can be passed. He further submitted that there is no perversity or illegality in the order passed by the Appellate Court. 4. Heard learned counsel for the parties and perused the record and also considered judgment as referred by learned counsel for the appellant. 5. While considering the appeal for admission on 01.05.2000, following substantial questions were framed by this Court:- “(i) whether for obtaining a decree under Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, it is condition precedent to establish relationship of landlord and tenant and thereafter any of the ground enumerated in clause (a) to (1) of sub section (1) of Section 13 of the said Act? (ii) whether Section 28 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 which provides that the provisions of this Act shall be in additional to and not derogatory of any other law on the subject for the time being in force in whole [2025:RJ-JP:23247] (4 of 9) [CSA-157/2000] or part of Rajashtan has any bearing with reference to Section 13 of the said Act?” 6. Since these issues are interconnected and related to each other, therefore, we are deciding both the issues together. 7. The plaintiff has filed a Civil Suit on 15.05.1984 stating that defendant is a tenant on suit property mentioned in para-1 and defendant paid rent upto 31.10.1981. The plaintiff on ground of default in payment of rent for more than 6 months, bona fide need and necessity and availability of alternative accommodation with defendant filed suit for eviction. The defendant has denied relationship of landlord and tenant and even challenged the title of plaintiff. The defendant has pleaded that the suit property belong to his mother-in-law and for last 20 years he is residing as owner. On basis of pleadings of the parties, 7 issues were framed. The plaintiff has examined 6 witness and exhibited 8 documents whereas defendant has examined 3 witnesses and exhibited 3 documents. Learned trial Court has opined that there is no relationship of landlord and tenant and plaintiff is not entitled to succeed in suit. The Appellate Court while allowing the appeal and setting aside the decree of trial Court has found that the plaintiff has been able to establish that he is the owner and defendant has denied the title so he is liable for eviction. 8. The evidence on record including both documentary and oral were considered by both the Courts below but there is a difference of interpretation and consideration. PW-1 in his evidence asserted the averment made in plaint and exhibited the documents alongwith justification for eviction. During cross-examination, he [2025:RJ-JP:23247] (5 of 9) [CSA-157/2000] admitted that He was not present when the property was rented to defendant by his father. PW-1 has tendered and exhibited Ex.3 and Ex.8 as sale deed of disputed property along with notice and assessment by Municipal Council. The admission also indicate that after 1947 his father has not resided in suit property. DW-1 in his deposition has stated that he is residing in suit property since 1965 and he exhibited certain documents to show that he is residing in disputed house. It is also evident from the evidence of DW-1 that no title document is filed to establish that the suit property belongs to his parents-in-law or lastly his mother-in-law. The specific defence of defendant is that suit property belongs to his mother-in-law and he is residing in suit property since her lifetime. The claim of defendant is only on basis of occupation of the house since 1965, as a resident. He has neither filed any title document nor any averment about incident of first occupation. 9. Here in this case, the evidence of both the parties clearly suggest that the title documents about ownership were filed only by plaintiff and not by defendant. The defendant has denied relationship of landlord and tenant and also the title of plaintiff but defendant has not submitted any title document to counter the claim of plaintiff. It is evident on record that the title documents were filed only by plaintiff. If the trial Court has decided the issue on basis of preponderance of probability then it forget to consider the documentary evidence submitted by plaintiff. 10. No doubt about it that in a suit for eviction between landlord and tenant, if tenant has denied title of landlord, then the Court has to determine relationship of landlord and tenant. Here the [2025:RJ-JP:23247] (6 of 9) [CSA-157/2000] claim of plaintiff is oral tenancy and not more than said claim. The admission of PW-1 also indicate that he has not served any notice to the defendant to demand any rent. The legal position in this regard has to be considered in the light of provision under Section 116 of Indian Evidence Act and it is based on doctrine of estoppel. This Section refers to estoppel of tenant and of licencee of persons in possession and it specifically provides that a tenant is not at liberty to deny title of landlord. In case of Sriram Pasricha Vs. Jagannath & Ors. : (1976) 4 SCC 184, Hon’ble Supreme Court has held that in a suit for eviction by landlord, the tenant is stopped from questioning the title of the landlord in view of Section 116 of the Indian Evidence Act. 11. In case of Ambika Savaria & Ors. Vs. Sanjay Sharma & Ors. : Civil Appeal No.7360/2016 Hon’ble Supreme Court while considering judgment in case of Anar Devi vs Nathu Ram : (1994) 4 SCC 250 has referred provision of Section 116 of Indian Evidence Act and also considered an observation that a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord’s title. Considering the judgment of Sriram Pasricha Vs. Jagannath & Ors. (supra) and other English Law has held that the defendant is not at liberty to deny the title of plaintiff and if there is no doubt on ownership of the house then it is not open to defendant to question the ownership of plaintiff. 12. Having considered the legality and legal question, particularly, that the defendant-appellant has failed to adduce any [2025:RJ-JP:23247] (7 of 9) [CSA-157/2000] evidence about the parallel title of the suit property as he claimed that disputed house belongs to his mother-in-law and he is residing in the house since lifetime of his mother in law. 13. Here in this case, there is no title document whatsoever in favour of defendant, therefore, the trial Court has committed serious error while considering that the title of plaintiff was under cloud and the plaintiff is not the owner of the suit property. 14. In case of Pushpa Sharma Vs. Gopal Lal (supra), a Full Bench of this Court has held that as a general rule when a suit is filed on basis of tenancy and relationship of landlord and tenant, then such suit should be decided on basis of tenancy alone and not be converted into a title suit. However, if defendant himself set up a title adverse to the plaintiff and does not raise any objection on basis of title leads evidence with full knowledge and the trial Court gives an adverse finding then the defendant cannot be permitted to advance the plea in the Appellate or Revisional Court. 15. In the instant case, the defendant has not only challenged the title of plaintiff but also denied the ownership of plaintiff. The defendant has claimed his own ownership and title over the suit property. The trial Court has framed issue No.6 and decided it as a first issue. The findings on issue No.6 recorded by the trial Court clearly reflect that the trial Court has considered this issue in relation to landlord and tenant but a joint reading of findings on issue No.1 and 6 clearly shows that the trial Court has dealt issue of title between the parties and drawn an erroneous conclusion only on basis of the wrong assumptions. [2025:RJ-JP:23247] (8 of 9) [CSA-157/2000] 16. The Appellate Court after considering the material on record drawn a conclusion contrary to the trial Court and further opined that the trial Court has misunderstood the provision of law and ultimately allowed the appeal and decided in favour of plaintiff. The record clearly suggests that the defendant is in possession but without any title document. It is also established that the plaintiff has led evidence to show that suit property was purchased by his forefathers and moreover there is a municipal record about the property. Therefore, there is no doubt about the title in favour of plaintiff. The defendant has failed to show his nature of possession, particularly, when he is claiming through his mother- in-law. In every event, the defendant is not at liberty to deny the title and ownership of plaintiff. Therefore, the Appellate Court has not committed any error on basis of material on record. There is no prejudice which could be caused to the defendant, if a title issue was decided and an eviction order was passed. 17. Having considered the material on record, I am of considered view that the Appellate Court has not committed any error while reversing the judgment of trial Court as the findings of trial Court is contrary to legal position and also against the record of the case. Therefore, the substantial question of law No.1 and 2 answered in negative and against the appellant-defendant. 18. In view of discussion made hereinabove, the instant second appeal sans merits and liable to be dismissed. 19. Therefore, the instant second appeal preferred aggrieved from judgment dated 07.03.2000 in Civil Regular Appeal No.127/1990 is hereby dismissed. [2025:RJ-JP:23247] (9 of 9) [CSA-157/2000] 20. Miscellaneous Application, if any, also stands disposed of. 21. No order as to costs. (ASHOK KUMAR JAIN),J MR/85-supp