Patna High Court
Jaikaran Singh vs Sita Ram Agarwalla And Ors. on 23 April, 1974
Equivalent citations: AIR1974PAT364, AIR 1974 PATNA 364
JUDGMENT S.K. Jha, J.
1. This is a defendant-tenant's, appeal against a judgment of affirmance, referred to this Bench by a learned Single Judge (S. Ali, J.) of this Court by an order dated the 8th of November, 1971.
2. The concurrent findings of fact which were not challenged in this appeal as they could not be are these. The plaintiff who, on his death was substituted by his heirs the present respondents, had let out the land in question from which they had sought to evict the defendant-appellant in this suit, on a monthly rental of Rs. 7/- which was subsequently raised to Rs. 9/- proving the relationship of landlord and tenant between the parties. Notice to quit under Section 106 of the Transfer of Property Act was duly served on the tenant-appellant determining the tenancy before the suit was instituted.
3. The respondents' case was that they were the owners of the lands described in Schedule A of the plaint and the subject-matter of the suit is the land described in Schedule B which is a part of Schedule A lands and appertains to plot No. 1440 bearing old Municipal holding No. 400. The Schedule B land was let out to the appellant for temporary residence on a monthly rent. The tenancy was to begin from the 2nd of each English Calendar month. One of the conditions of the tenancy was that the appellant shall not make any permanent structure. The appellant failed to pay rent from the 2nd of April, 1946 to the 1st of February, 1964. He had further made pucca constructions in breach of the terms of the tenancy. Notice to quit was thereafter served and on the appellant's failure to vacate, the present suit was instituted claiming eviction and the arrears of rent amounting to Rs. 198/-, which amount only was not time barred. The appellant's defence was that there was no relationship of landlord and tenant between the parties and he never paid any rent so that there could not be any question of any default in payment of rent or breach of the terms of the tenancy. The further defence was that the appellant had come to know that the respondents were tenants under erstwhile Dhalbhum Estate which in its turn had terminated the tenancy of the respondents and that after the vesting of the Dhalbhum Estate in the State of Bihar under the provisions of the Bihar Land Reforms Act, 1950, the respondents had no title to the suit lands. The courts below concurrently held that the respondents had fully proved their title and possession over Schedule A lands of which Schedule B land in question is merely a portion. The defence of the appellant that he was in possession of the land in his own right was rejected by both the courts below which came to the conclusion that the respondents had fully proved that the premises in question had been let out by them to the appellant on a monthly rental of Rs. 7/- which was subsequently raised to Rs. 9/- and that the appellant in spite of the non-payment of rent from the 2nd of April. 1946 was holding over as a tenant under the respondents, who had inducted the appellant on the land as a tenant and had put him in possession thereof.
4. These being the facts, the questions of law that were raised by Mr. Rai Paras Nath, learned counsel for the appellant were twofold:
(i) The appellant was entitled to raise the plea that the respondents' title as lessors had since after the commencement of tenancy terminated by operation of law by virtue of the provisions of the Bihar Land Reforms Act. 1950 whereby the entire Dhalbhum Estate must be deemed to have vested in the State of Bihar and that, therefore, the respondents even though they may be assumed to have the lessors' right at the inception of the tenancy, had lost their right as lessors. In other words, according to learned Counsel, it ought to have been held by both the courts below that the title of the respondents as lessors had since come to an end after the commencement and during the continuance of the tenancy and in such cases the doctrine of estoppel as engrafted in Section 116 of the Indian Evidence Act (hereinafter referred to as 'the Evidence Act') could not be attracted.
(ii) In any event, it should be held that the appellant had been evicted by the paramount title-holder, who in the present case was the State of Bihar, which must be deemed to have acquired the lessors' interest and to whom alone the appellant would now be liable to pay rent and who alone could sue to evict the appellant.
5. I am unable to accept any of the two contentions put forward by learned Counsel for the appellant. It is true that Section 116 of the Evidence Act rests on the Principle well established by many English cases, that a tenant who has been let into possession cannot deny his landlord's title however defective it may be so long as he was not openly restored to possession by surrender (cf. Bilas Kunwar v. Desrai Ranjit Singh, 42 Ind App 202 = (AIR 1915 PC 961). but in terms that section does not apply to prevent a tenant from pleading that the title of the original lessor has since come to an end (cf. Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, Ltd., 64 Ind App 311 at p. 319 = (AIR 1937 PC 251 at p. 255). It is, however, equally true that Sections 115 and 116 of the Evidence Act are not exhaustive and there may be rules of estoppel applicable in India other than what is contained in those statutory provisions. As observed by the Judicial Committee of the Privy Council in the case of Krishna Prasad Lal (supra at page 318 of 64 Ind App) = (at p. 255 of AIR), "the Section 116 does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant." So also while dealing with the scope of Section 115 of the Evidence Act, the Supreme Court held in the case of Union of India v. M/s. Anglo Afghan Agencies, AIR 1968 SC 718 that a man may be estopped not only from giving particular evidence, which could be governed by the provisions of the Evidence Act, but from doing any act or relying upon any particular argument or contention, which the rules of justice, equity and good conscience prevent him from using as against his opponent. I shall therefore, point out some of the well-established principles of estoppel between landlord and tenant based upon such principles of equity and good conscience although not falling strictly within the purview of Section 116 of the Evidence Act. And these principles, in my view, have always been held to be applicable even in India. The case of Burn & Co. v. Rusho Movee Dossee, (1870) 14 Suth WR 85 before the enactment of the Evidence Act is in point.
6. To begin with a quotation from Halsbury's Laws of England (3rd Edition by Lord Simonds) Vol. 15. Part 5, Section 1, paragraph 456 which deals with "Estoppel by entry into possession".
"Generally, a tenant is estopped from disputing the title at the time of the demise of the landlord by whom he has been let into possession; but this estoppel has no application even while the tenancy exists when the question of title arises between the parties, not in the relationship of landlord and tenant, but of vendor and purchaser. The doctrine of estoppel which operates between landlord and tenant applies to tenancies from year to year, at will, or on sufferance, as well as to leases for years; and anyone holding under a tenant, or defending as landlord in an action for ejectment, is bound by it......."
Paragraph 457 of the same volume deals with the circumstances in which a "Lessee may show that the lessor's title has determined" and it is laid down that--
"A tenant is not estopped either before or after the expiration of the term from showing that his lessor's title has determined. If, however, the tenant came into possession under the lessor, the better opinion would seem to be that he must surrender possession before he disputed the lessor's title or have been evicted by a person having title paramount; but it has been held that unless he claims to be entitled to the premisses in his own right, it is not necessary that he should actually go out of possession."
In Balls v. Westwood (1809) 2 Camp 11, Lord Ellenborough, C. J.. held that a person cannot show that his landlord's title has expired without solemnly renouncing possession and again in Re. Stringer's Estate Shaw v. Jonesford, (1877) 6 Ch D 1, the law regarding "estoppel by entry into possession" or "estoppel by contract" has been very lucidly explained by Sir George Jessel, M. R.. at pages 9-10 in these terms:
"I do understand the doctrine of numerous cases cited, which may be divided into two classes. The first is that where a man having no title obtains possession of land under demise by a man in possession, who assumes to give him a title as tenant, he cannot deny his landlord's title; as, for instance, if he takes for twenty-one years and he finds the landlord has only five years' title, he cannot after the five years set up against the landlord the jus tertii, though, of course the real owner can always recover against him. That is a perfectly intelligible doctrine. He took possession under a contract to pay the rent as long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits, and under whose title he took possession, has not a title. That is a well-established doctrine. That is estoppel by contract."
Although on the question of the construction of a will and a deed of gift the court of Appeal did not agree with the conclusion of the Master of the Rolls, so far as the plea of estoppel against a tenant is concerned, it is still regarded as high authority. As Lord Blackburn observed in William Clark v. Patrick Adie, (1877) 2 AC 423 (H. L.) at page 435--
"So long as the lease remains in force, and the tenant has not been evicted from the land, he is estopped from denying that his lessor had a title to that land. When the lease is at an end the man who was formerly the tenant but has now ceased to be so, may show that it was altogether a mistake to have taken that lease, and that 'the land really belonged to him; but during the continuance of the lease he cannot show anything of, the sort; it must be taken as against him that the lessor had a title to the land."
These principles of equity and good conscience in no way militate against the decisions of the Judicial Committee of the Privy Council in Bilas Kunwar's 42 Ind App 202 = (AIR 1915 PC 96) (Supra) and Krishna Prosad Lal Singha Dec's 64 Ind App 311 = (AIR 1937 PC 251) (Supra) cases. On the contrary, observations in the latter case do support the aforesaid principles enunciated by 'the English Courts.
7. The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his, landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted. In all the cases where it has been laid down that the principle does not apply to prevent a tenant from pleading that the title of the original lessor has since come to an end, the question for determination was the true import and extent of the provisions of Section 116 of the Evidence Act. A Division Bench judgment of this Court in the case of Gajadhar Lodha v. Khas Mahatadih Colliery Co.. AIR 1959 Pat 562 reinforces my view in so far as that was a case in which this Court extended the doctrine of estoppel to a case not strictly Covered by Section 116 of the Evidence Act. In my view, the consensus of judicial opinion, both of the Courts of India as well as those of English Courts, is that before surrendering or solemnly renouncing possession the tenant shall not be permitted to set up a title in a third person, or jus tertii. By so doing he would be challenging the title of the lessor on the date of the demise to settle for such time as the tenancy had not been determined. As the tenant in such cases has been inducted on the leasehold premises by the lessor on the strength of such a title enabling him to enter into a contract of tenancy, the tenant shall not be permitted to challenge such title before surrendering possession. In that sense, the principle underlying Section 116 of the Evidence Act may, also be said to be attracted. It has, therefore, been repeatedly held that possession must be surrendered before any such defect in the lessor's title is allowed to be proved.
8. The position in law is no different even after the notice to quit determining the tenancy has been served. For, it is of the very essence of "estoppel by entry into possession". Even at the expiration of the term whether it terminates by notice or by efflux of time, the lessee is bound to put the lessor in vacant possession, vide Henderson v. Squire, (1869) 4 QB 170 and Marsden v Edward Heyes Ltd., (1927) 2 KB 1. This is the principle engrafted in Section 10.8 (q) of the Transfer of Property Act. This proposition further finds support from the decision of this Court in the case of Gaiadhar Lodha AIR 1959 Pat 562 (Supra). To hold otherwise would be encouraging the object of a tenant-defendant to take advantage of his own wrong in not having given up possession when he ought to have done so. As Brett, M. R., in the case of Knight v. Clarke, (1885) 15 QBD 294 at P. 297 observed:
"The defendant (Clarke) cannot by reason merely of the delay refuse to give the possession of which he was bound to have given at the time when the plaintiffs demanded it of him."
9. The aforesaid principle of surrendering or solemnly renouncing possession, is, however, subject to certain exceptions. By and large, the exceptions to this rule are (i) where a plaintiff or a defendant does not seek either to evict or to defend his title as a landlord on the strength of a tenancy, but on the strength of his title and the erstwhile tenant having acquired an indefeasible right in himself is opposing the stand on the strength of a title in himself say for instance, as a vendee. (The case of Md. Hussain v. Abdul Gafoor. AIR 1945 Mad 321 is a case of this nature), (ii) where the tenant has been evicted by a person holding a title paramount, and (iii) where under a threat or compulsion of being evicted by the true owner or by a person claiming better title than the landlord, the lessee attorns to such third person with notice to his original lessor. In either of these cases the actual physical possession need not be given up, for the possession, in such circumstances, under the lease will be deemed to have been surrendered and a new title created either as an owner or as a new lessee under the true owner or the paramount title-holder. Even mere payment of rent to a third party would not be enough to determine the tenancy by attornment to that party so as to give a protection to the tenant from the legal requirement of surrendering possession to his original landlord. This aspect of the law has been very elaborately discussed and succinctly put in the case of Jogendra Lal Sarkar v. Mahesh Chandra Sadhu (47 Cal LJ 387 at p. 393) = (AIR 1929 Cal 22 at P. 24) thus--
"Now 'a tenancy' determines either by having run its prescribed course or by act of parties whilst it is running or by act of law. Instances of a determination of the first kind are where a lease is made for a certain period and that period expires or where an event happens in itself uncertain (e.g., the death of the lessee or some other person), upon the happening of which the term is expressly limited. A determination' of the second kind is brought about by one of the following acts: determination of the will (in tenancies at will), disclaimer and notice to quit (in yearly or other periodical tenancies), surrender, merger, and forfeiture (in tenancies generally). A determination of the third kind i.e., by act of law only, results from the operation of the statute of Limitation, (Foa on Landlord and Tenant 6th Edition, page 649). An attornment to a third party is a disclaimer (Ibid p. 653); but 'attornmenf in the sense in which the word is used and understood in English Law is not a mere agreement in favour of a third party to pay rent, but has been defined as 'the act of the tenant's putting one person in the place of another as his landlord": Cornish v. Searell, (1828) 8 B. and C. 471 (476) per Holroyed. J."
And again--
"Though the tenancy may be continuing it is quite open to the tenant to plead and show that his liability to pay the rent has wholly or partially or for a time ceased. Such a plea does not amount to disputing the landlord's title but is really one of confession and avoidance. One such plea is that of non-liability to pay the rent on the ground that the lessor's title has been defeated by a title paramount or in other words that there has been eviction by title paramount. In the case of a complete eviction it is not quite easy to see the distinction as the question of continuance of tenancy and the question of eviction by title paramount terminating the liability to pay the rent would go hand in hand."
10. It would thus be seen that eviction by title paramount may be a meritorious defence for the tenant to set up against the plea of eviction by the original lessor, vide Jogendra Lal Sarkar's case 47 Cal LJ 387 = (AIR 1929 Cal 22) (Supra) and K.S.M. Guru Swami Nadar v. N.G. Ranganathan, AIR 1954 Mad 402. This defence obviously must be established by the party setting it up. What then is the true connotation of the term "eviction by title paramount". Foa on Landlord and Tenant 6th Edition at pages 194-195 says that it is not necessary that the tenant should go out of possession, and if upon a claim being made by a person with title paramount he consents to an attornment to such person to change the title under which he holds or enters into a new arrangement for holding under him, this will be equivalent to an eviction and a fresh taking. It will thus be seen that a forcible expulsion of the tenant is not an invariable concomitant of eviction by title paramount. The title paramount over that of the lessor destroys the effect of the grant made by that lessor, thereby destroying as a neces3ary corollary the corresponding liability for payment of rent. If the eviction has been from the demised premises by a party having a title better than or superior to the landlord and the tenant had either quitted against, his will or has attorned under a threat of expulsion with intimation to the original lessor, then the eviction by title paramount is complete. For such a defence to be substantiated necessary facts must be pleaded. In the present case, as a matter of fact, the plea of eviction by title paramount was not even taken in the written statement nor was any issue framed upon it. It was merely submitted by learned Counsel for the appellant that since the entire Dhalbhum Estate must be deemed to have vested in the State of Bihar, as a consequence of a notification issued under Section 3 or 3-A of the Bihar Land Reforms Act. 1950, it should be presumed that the respondents title qua landlord had been extinguished and that the appellant should be held to have been evicted by title paramount by the State of Bihar. It has never been the case of the appellant that he had ever been threatened either expressly or even tacitly by the State of Bihar to be evicted from the leasehold premises in question. Nor has it been averred and proved that there has been any attornment by payment of rent to the State of Bihar. The plea of eviction by title paramount in answer to the doctrine of estoppel in favour of the respondents must, therefore, fail. Learned Counsel for the appellant had placed great reliance on a judgment of Mulla, J., in the case of Rev. Luckman Chaplain v Pearey Lal. AIR 1939 All 670 for the proposition that where the tenant's denial of his landlord's title was related to facts which had happened subsequent to the commencement of the tenancy the bar of estoppel did not come into operation. I am afraid, the true purport of this decision has not been fully appreciated by learned Counsel. The learned Judge in that case was actually considering a plea of eviction by title paramount as would appear from the following observations at page 672:
"It was obviously desirable and indeed proper and necessary that the question of title should have been decided after Government had been made a party to the suit, especially in view of the fact that the defendant had further pleaded that he had actually paid rent for the period of suit to Government."
The plea which was being canvassed before the Allahabad High Court in that case was that since the property had vested in the Government and the Government being authorised to resume possession of the demised premises and that the defendant-tenant had actually paid the rent for the period in suit to the Government, which, was also the case of the Government in the court below, it was wrong on the part of the trial Court to have rejected the application for addition of the Government as a party merely on the ground of estoppel and in that context the learned Judge had also observed at the outset at page 671--
"It is not for me to decide at this stage whether the position thus taken up by the defendant and the Government is or is not well-founded in law."
11. In the present case, it was also faintly suggested by learned Counsel for the appellant that in view of Section 4(ee) of the Bihar Land Reforms Act, 1950, the State of Bihar should be made a party and then the matter decided in its presence. A similar argument was advanced before this Court in the case of Ramkumar Das v. Rajwanti Loharin, in Second Appeal No. 1141 of 1961 (Pat), which was decided by a learned Single Judge (Ahmad, J.) of this Court on 11-9-1963. In the suit giving rise to that appeal the plaintiff was the same Ramkumar Das who was the plaintiff in the suit giving rise to the present appeal. He has subsequently, on his death, been substituted by Ms heirs during the pendency of the appeal before the first appellate court and who are the respondents here. The interest pleaded by the plaintiff in that case was identical with that in the present case. The ground of eviction was the same. Only the tenants-defendants were others and the demised premises covered another parcel of land. The argument put forward on behalf of the tenants, who were respondents in that second appeal was rejected in these terms which view I respectfully endorse:
"In the present case, the Government of Bihar has not been made a party to the suit; nor has at any stage any application been made for impleading the State of Bihar a party to the litigation. No doubt, in this Court, Mr. Sinha in the course of his argument has drawn my attention to provision of law as laid down in Section 4(ee) of the Bihar Land Reforms Act, 1950: but, that, in my opinion, has application only in the matter of a suit, appeal or proceeding which was then pending on the date of the commencement of the Bihar Land Reforms (Amendment) Act, 1953, and related to an estate or tenure which had vested under Section 3 or 3A of the said Act. Here, these conditions are not fulfilled. Secondly if no notice be issued, as I think, it should not be issued under Section 4(ee) of the Bihar Land Reforms Act. 1950, the decision arrived at in the present case will, at best, not bind the State of Bihar. Therefore, I think, it is too late now at this stage to accept the submission made by Mr. Sinha that a notice under Section 4 (ee) of the Bihar Land Reforms Act. 1950, should now be issued to the Government and the case be heard after service of that notice on the State of Bihar. Therefore, I think, in the absence of the State of Bihar, it is not open to the client of Mr. Sinha to contend that the interest of the plaintiff under the lease made in his favour in the year 1941 was automatically annulled as a result of the vesting of the estate of Dhalbhum Rai on the 12th November, 1951. Lastly, the word 'incumb-rance' as used in Section 4 of the Land Reforms Act, when read in its context, refers only to the burden on what vests thereunder, namely, the estate or tenure as such and not the lease created by the proprietor or tenure-holder thereof in respect of any specific land falling thereunder. That being so, I think, the finding given by the lower appellate court that as a reult of subsequent events the plaintiff lost the title during the pendency of the tenancy has to be set aside; and further it has to be held that on the facts of the present case, the defendants have failed to establish that the title which the plaintiff had on the date of the lease in the year 1941 was subsequently lost by him as a result of the aforesaid vesting."
12. Before finally resting the case, it is necessary for me to dispose of the only one remaining matter, namely, applications filed in this Court by the appellant under Order 41, Rule 27 of the Code of Civil Procedure for admitting into additional evidence certain documents. Though numerous such applications have been filed in this case, learned Counsel for the appellant pressed only two such petitions, one dated the 16th of March, 1973, filed on the 19th of April, 1973 and another dated the 27th of September. 1973. These applications were filed after this appeal was referred by the learned Single Judge to a Division Bench. The documents which are sought to be brought into additional evidence purport to be notice and order under Section 4 (s) of the Bihar Land Reforms Act. 1950 issued and passed by the Revenue Authorities against some of the respondents as also an appellate order affirming the same. The appellate order is dated the 3rd of July, 1973. The appellant was never a party either to the proceeding under Section 4 (g) or to the appeal arising therefrom. This appeal was referred to the Division Bench as already stated on the 8th of November, 1971. This second appeal was filed in this Court on the 20th of August, 1969 and after its admission the appellant got an order from this Court staying the execution of the decree for eviction. In these circumstances, apart from the fact that the documents to which the appellant is not a party at all, they nave no bearing on the question at issue. Nor, do I think I shall be justified in allowing the prayer, of the appellant at this late stage for taking into additional evidence any such document, only more so, as I do not think any document is required by this Court to enable it to pronounce its judgment. There is not even any other substantial cause which can persuade me to admit such additional evidence. Far from that, both justice and law are in favour of the respondents; for it is clear that the real object of the appellant in seeking to adduce additional evidence is to take undue advantage both of his own wrong in not having given up possession in favour of the respondents when in law he was bound to do so and of the order of stay passed by this Court, which in turn will attract the principle of actus curiae neminem gravabit (acts of Court prejudice none). I have not the slightest hesitation, therefore, in holding that the applications filed under Order 41, Rule 27 of the Code of Civil Procedure must be rejected.
13. In the result, therefore, I find no substance in any of the points raised on behalf of the appellant. The judgments and decrees passed by the courts below are hereby affirmed and the appeal dismissed with costs.
S.N.P. Singh, Ag. C.J.
I agree.