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When can a tenant challenge the title of landlord or his assignee

In Apollo Zipper India Limited vs W. Newman And Co. Ltd., the Supreme Court reiterated the settled  principal that in an eviction suit filed by the landlord against the tenant under the Rent Laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.

In other words, the burden of proving the ownership in an eviction suit is not the same like a title suit. (See Sheela & Ors. vs. Firm Prahlad Rai Prem Prakash, 2002 (3) SCC 375, Para 10 at page 383 and also Boorugu Mahadev & Sons & Anr. vs. Sirigiri Narasing Rao & Ors. 2016 (3) SCC 343, Para 18 at page 349 ).

Similarly, the law relating to derivative title to the landlord and when the tenant challenges it during subsistence of his tenancy in relation to the demised property is also fairly well settled. Though by virtue of Section 116 of the Evidence Act, the tenant is estopped from challenging the title of his landlord, yet the tenant is entitled to challenge the derivative title of an assignee 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]

It is equally well-settled law with regard to attornment that it does not create any new tenancy but once the factum of attornment is proved then by virtue of such attornment, the old tenancy continues. (See Uppalapati Veera Venkata Satyanarayanaraju & Anr. Vs. Josyula Hanumayamma & Anr. AIR 1967 SC 174 ).

First, when the appellant sent a quit notice dated 17.05.2012 to the respondent under Section 106 of the TP Act determining the tenancy and calling upon the respondent to pay the arrears of rent and vacate the suit premises, despite receipt of the quit notice, they did not reply to it.

In our view, the respondent ought to have replied to the notice at the first available opportunity, which they failed to do so. It amounts to waiver on their part to challenge the invalidity or infirmity of the quit notice including the ownership issue raised therein.

In the case of Parwati Bai vs. Radhika, AIR 2003 SC 3995, the question arose as to whether the tenancy was terminated in accordance with the provisions of Section 106 of the TP Act. The defendant despite receiving the notice from the plaintiff did not reply to it.

This Court held that if the defendant does not raise any objection to the validity of quit notice at the first available opportunity, the objection will be deemed to have been waived.


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