K. Govindarajan, J.
1. The unsuccessful plaintiff before the Courts below has filed this second appeal.
2. The plaintiff filed a suit in O.S.No. 5983 of 1982 on the file of the City Civil Court, Madras for recovery of possession of the suit property bearing door No. 90, new door No. 46, Kodambakkam High Road, Madras-17 from the defendants on receiving a sum of Rs. 3,000 as compensation for the superstructure standing on the suit property and for arrears of rent and damages.
3. According to the plaintiff, one Saradambal purchased under Ex.A-1, dated 27.7.1944, a plot of land measuring 7 grounds, 2382 sq.ft., but the actual measurement is 8 grounds, 936 sq.ft. According to the plaintiff, in 1957 the said Saradambal leased out a portion of the land measuring one ground and 890 sq.ft. in the suit property, for carrying on firewood depot business to one Kannammal, who is the mother of the 1st defendant and wife of the 2nd defendant. The said Kannammal died in 1975. But the rent was sent by the 2nd defendant to Saradambal. The said Saradambal issued a notice under Ex.A-2, dated 24.2.1976 asking the 2nd defendant on what basis the 2nd defendant has been sending the rent. A reply was sent under Ex.A-4, dated 17.4.1976 stating that pursuant to the wishes of Kannammal, the 1st defendant’s brothers have settled the firewood depot business and the superstructure on the land leased out by Saradambal in favour of the 1st defendant and he is the owner of the business and superstructure and that he is entitled to leasehold interest in the said land. Under Ex.A-5, the property purchased under Ex.A-1 has been settled in favour of the plaintiff-trust by the said Saradambal. The plaintiff sold 7 grounds and 46 sq.ft. under Ex.A-21 in favour of 27 persons retaining one ground and 890 sq.ft. leased out to Kannammal. The 3rd defendant filed another suit in O.S.No. 4742 of 1981 seeking declaration of his title on the basis that he had perfected title over the land leased out to Kannammal, by adverse possession and the said suit was dismissed as withdrawn on 14.12.1985. The 3rd defendant had come forward with the said suit on the basis that he had been inducted into possession of the land by Kannammal. The plaintiff sent a notice under Ex.A-23, dated 12.3.1982 calling upon the defendants to surrender vacant possession of the land. But the defendants by way of reply had disputed the title of Saradambal and consequently that of the plaintiff. Hence the plaintiff filed the present suit.
4. Defendants 1 and 2 filed common written statement. According to them, there is no relationship of landlord and tenant between the plaintiff and its predecessors on the one hand and the defendants and their predecessors on the other in the facts and circumstances mentioned in the written statement. In paragraph 4 therein it is admitted that the plaintiff’s predecessor Saradambal granted a plot of land to Kannammal, the predecessor of defendants 1 and 2, on oral lease. But, it is stated that such a lease granted on a wholly wrong and false representation that she was the owner of the land of which she was purporting to grant lease. It is also stated that such a lease was only invalid and void and not binding on the said Kannammal and the defendants 1 and 2. It is further stated that the right of Saradambal has come to an end and extinguished on the abolition of Shrotrium of Puliyur Village by issuing notification under the Tamil Nadu Act 26 of 1948. Their further case is that Saradambal purchased only 7 grounds and 2382 sq.ft. and not 8 grounds, 986 sq.ft. They have also stated that the defendants are not liable to pay any arrears of rent and damages for use and occupation. Referring to the value of the superstructure, it is stated that the real market value of the superstructure is at least Rs. 10,000.
5. The 3rd defendant filed a written statement stating that the plaintiff was never in possession and enjoyment of the suit property. He was managing the firewood depot only in the capacity of manager. It is also stated that the plaintiff is not entitled to either rent or damages as claimed.
6. The trial Court accepted the case of the defendants and found that though the defendants 1 and 2 are not the tenant in view of the Act 26 of 1948, as the tenancy had been extinguished and so the plaintiff is not entitled to recover possession of the suit property from the defendants, and consequently the other reliefs also had been rejected. The plaintiff filed appeal in A.S.No. 211 of 1986 on the file of the City Civil Court, Madras. Though the lower appellate Court found that the defendants have been in possession of the suit property as tenants, in view of the Act 26 of 1948, the plaintiff is not entitled to recover possession. It is also found that the defendants have not come forward with any application under Section 9 of the City Tenants Protection Act. Hence, this second appeal.
7. The substantial question of law that arises in this case is whether the respondents/ defendants are estopped from denying the title of the appellant/ plaintiff in view of the prohibition under Section 116 of the Indian Evidence Act, 1872.
8. Since I am inclined to decide the issue raised on the basis of Section 116 of the Evidence Act, I am not going into the other issue, namely, whether the appellant/ plaintiff had lost its title to the suit property pursuant to the Act 26 of 1948.
9. As submitted by the learned Counsel appearing for the appellant, the tenancy in favour of Kannammal has been admitted by the respondents/ defendants. In the written statement filed by defendants 1 and 2 it is stated as follows:
It is no doubt true that the plaintiff’s predecessor Saradambal granted under an oral lease a plot of land to Smt. Kannammal, the predecessor of these defendants 1 and 2.
Even in the evidence of the 2nd defendant as D.W.1, he has admitted the same, which is as follows:
Even in the cross-examination, it is stated as follows:
To show that no other person claimed rent to the suit property, the learned Counsel for the appellant has referred to the evidence of D.W.1 which runs as follows:
10. But, how the respondents/ defendants have come forward with the plea that Saradambal was never the owner of the suit land, and the defendants 1 and 2 under the bona fide impression that Saradambal was the owner of the suit property were paying the rent and writing letters as if there was a lease in favour of Saradambal. It is also the case of the defendants that in view of the Act 26 of 1948, the right, title and interest of Saradambal had become extinguished and neither Saradambal nor the plaintiff is entitled to make claim against the defendants. Only on the basis of the said reason, the defendants 1 and 2 have come forward with the plea that there is no relationship of landlord and tenant between the plaintiff and its predecessor on the one hand, and the defendants and their predecessors on the other. It is not their case that there was no tenancy at all and so there was no such relationship. On the other hand the respondents/ defendants claim that Saradambal has no title to the suit property in view of the Act 26 of 1948, and so the said Saradambal and the plaintiff cannot enforce such right on the basis of the lease in favour of the said Kannammal, the predecessor of the defendants 1 and 2, for want of title in the suit property.
11. From the abovesaid admission made by the respondents/ defendants, it has to be taken that they have been in possession of the suit property only on the basis of the lease, and the said lease has not been terminated. On the basis of the abovesaid facts, now it has to be decided whether the respondents/ defendants resist the claim of the appellant/ plaintiff by disputing the title of the said Saradambal and the plaintiff in the suit property.
12. Section 116 of the Indian Evidence Act, which has been solely relied on by the learned Counsel appearing for the appellant, runs as follows:
116, Estoppel of tenant and of licence of person in possession: No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
An analysis of the abovesaid provision would show that a tenant is absolutely forbidden from denying that his landlord at the beginning of the tenancy, had title to the immovable property. It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that the particular landlord had at that date a title to the property. There is no exception even for cases where the lease itself discloses the defect of title.
13. The Division Bench of this Court while considering the scope of Section 116 of the Evidence Act in the decision in Guruswami v. Ranganathan , has held as follows:
(6) Section 116 of the Evidence Act enacts that, “no tenant of immovable property, or persons claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property.
The Section applies to a tenant let into possession and also to persons claiming through such a tenant; in other words his representatives. Though the Section does not refer to the landlord and his representatives, it undoubtedly applies even between representatives of the landlord and the tenant, or his representatives. The estoppel is confined to the title of the landlord at the beginning of the tenancy, so that even if the dispute is between the landlord and the tenant or his representative, the estoppel is restricted to the title at the inception of the tenancy and therefore it does not expressly include the landlord’s representatives. But it is now established that estoppel does not extend to the derivative title of the persons claiming through the landlord. Vide: Krishna Prasad Lal v. Baraboni Coal Concern Ltd. (1937)2 M.L.J. 286 : A.I.R. 1937 P.C. 251, that is to say, that if A is the original landlord and B claims reversion either as the heir or as the donee or as the adopted son of A, it is open to the tenant to deny the derivative title, that is, he can dispute that the person claiming to be the heir is not the heir or the donee or the adopted son. But if once the derivative title is established, the tenant cannot, even between himself and a person who claims the reversion, deny the title of the original landlord at the commencement of the tenancy. This Section restricts the estoppel to the period during which the tenancy continues. But it is now well settled that the duration of the estoppel continues so long as the tenant has not openly restored possession by surrender to his landlord. Vide: Mt. Bilas Kunvar v. Rangit Singh A.I.R. 1915 P.C. 96 and – Bhalganti Bewan v. Himmat Bodyguard A.I.R. 1917 Cal. 496. The reason for this as pointed out by Jessel, M.R. in – Shaw v. Ford (1877)6 Ch.D. 1 at 9 and 10 is that a person who took possession under a contract to pay rent as long as he held possession at the end of the term to the landlord should not be allowed to say that the man whose title he had admitted under whose title he took possession has not a title. The basis of the estoppel is the contract. If for example, a tenant obtains a lease for a period of 21 years but subsequently finds that the landlord had only five years’ title, it is not open to him after the expiry of the period of five years to set up against the landlord ‘jus tertii’.
Of course, the real owner can always step in and recover possession of the property. But so far, as the tenant is concerned he cannot defeat the right of the landlord as the possession of the tenant is rested on a contract whereunder he admitted the title of the landlord and obtained possession of the property. The extension, therefore, of the duration of estoppel is founded on a denial of the title at the commencement of the tenancy. From this, the exception follows, that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title-holder. Sir George Rankin in Krishna Prasad Lal v. Baraboni Coal Concern Ltd. (1937)2 M.L.J. 286 : A.I.R. 1937 P.C. 251, examined the scope of estoppel under Section 116 of the Evidence Act and observed that it does not deal or profess to deal with all kinds of estoppels, which may arise between a landlord and his tenant, that it is confined only to one cordial and simple estoppel.
The Section postulates, to quote the learned Judge at p.255.
that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that, that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise which is the case before the Board on the appeal – the Section applies against the lessee, any assignee of the term and any sub-lessee or lessee. What all such persons are precluded from denying that the lessor had a title at the date of the lease and there is no exception even for the case where the lessee shall discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent etc. In this sense, it is true enough that the principle only applies to the title of the landlord who let the tenant in as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end.
14. A tenant cannot deny the landlord’s title, however defective it may be, as long as he is in possession of the property as a tenant. The Apex Court while dealing with the scope of Section 116 of the Evidence Act in the decision in Veerraju v. Venkanna , has taken abovesaid view, which reads as follows:
13. Having regard to Section 116 of the Indian Evidence Act, 1672, during the continuance of the tenancy, a tenant will not be permitted to deny the title of the deity at the beginning of the tenancy. In Bilas Kunwar v. Desraj Ranjit Singh, I.L.R. 37 All. 557 at 567 : A.I.R. 1915 P.C. 96 at 98, the Privy Council observed:
A tenant who has been let into possession cannot deny his landlord’s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord.
14. It is also well settled that during the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord’s title by mere assertion of such a right to the knowledge of the landlord. See: Mohammed Mumtaz Ali Khan v. Mohan Singh, 50 I.A. 202 : A.I.R. 1923 P.C. 118, Madhavrao Waman Saundalgekar v. Raghunath Ventatesh Deshpande, 50 I.A. 255 : A.I.R. 1923 P.C. 205, A.S.N. Nainnapillai v. T.A.R.A. Rm. Ramanathan Chettiar, 51 I.A. 83 : A.I.R. 1924 P.C. 65. In the last case, Sir John Edge said:
No tenant of lands in India can obtain any right to a permanent tenancy by prescription in them against his landlord from whom he holds the lands.
15. Even in the decision in Sri Ram Pasricha v. Jagannath , the Apex Court has held as follows:
15….The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such.
16. Even in the decision in Joginder Singh v. Joginder , the Apex Court has taken similar view, which reads as follows:
6……This is a settled view that having regard to the provisions of Section 116 of the Evidence Act no tenant of immovable property or person claiming through such tenant shall during the continuance of the tenancy, be permitted to deny the title of the owner of such property. In this connection it would be relevant to make a reference to the decision of this Court in Veerraju v. Venkanna wherein this Court, with reference to the decision of Privy Council in Mt. Bilas Kunvar v. Rangit Singh A.I.R. 1915 P.C. 96 at 98, took the view as under:
A tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord.
17. While considering the right of the tenant to deny the title of the subsequent purchaser of the property, the learned Judge of the Karnataka High Court in the decision in R.G. Hiremath v. T. Krishnappa A.I.R. 1978 Karn. 13, has held as follows:
3….It is not in dispute that the petitioners came to occupy the buildings as tenants and it is also not in dispute that they paid rents first to Ramachandragiri and after his death, to his wife Kamalinibai continuously for a period of 20 years. They, however, refused to recognise the respondent as owner despite the registered sale deed in his favour. In these circumstances I am quite unable to understand the legitimacy of their stand. When they did not dispute the right of Kamalinibai to receive the rent in respect of the same buildings, the relationship that existed as between the petitioners and Kamalinibai continued under the same terms and conditions, after the respondent purchased the buildings. The petitioners are, therefore, estopped from questioning the title of the respondent under Section 116 of the Evidence Act. If any decision is needed on this question, see: Sri Ram Pasricha v. Jagannath in which it was also observed that under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant.
18. From the abovesaid decisions, it is clear that if the tenancy is admitted, the tenant has been estopped from denying the landlord’s title, however defective it may be. Moreover, the question of title to grant lease is relevant. Such estoppel contemplated under Section 116 had exceptions. It is open to the tenant even without surrendering possession to allege that since the date of tenancy title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property under a threat of eviction, he had attorned to the paramount title holder. Except for this reason, the tenant is estopped from denying title of the landlord.
19. Relying on the decision in Annamalai Chettiar v. Molaiyan , the learned Counsel appearing for the respondents have submitted that the restriction contemplated under Section 116 of the Evidence Act is only to the denial of title at the commencement of the tenancy and such estoppel would apply to the contention that the landlord had no title before the tenancy commences or that the title of the landlord has since come to an end. In the said decision, the lease was given before 1996. But the land was taken over under the Act 30 of 1963 by issuing notification dated 22.1.1966. While construing the said fact, the learned Judge has found that there cannot be any estoppel under Section 116 of the Evidence Act to contend so by the tenant that the landlord had lost his title even before commencement of the lease, though the said observation was not necessary to decide the facts of the case. In the present case, the notification admittedly was issued before the commencement of tenancy and so the learned Counsel appearing for the respondents have contended that there cannot be any estoppel for the tenant to dispute the title of the landlord which had extinguished in view of the Act 26 of 1948. I am not able to accept the said submission. As held by the Division Bench of this Court and the Apex Court in the decisions cited supra, the title of the landlord is irrelevant between the lessor and lessee. If the lessee is in continuous possession on the basis of the lease, he cannot dispute the title of the lessor however defective it may be. Moreover, it is well settled, such plea that the landlord had lost his title to the property even before commencement of lease, can be raised only in a case where the tenant was not put into possession, though the parties entered into tenancy agreement. Since the observation of the learned Judge in the said decision in , (cited supra) is contrary to the decision of the Division Bench decision and that of the Apex Court, I am not relying on the same.
20. The learned Counsel appearing for the respondents have submitted that pursuant to the Act 26 of 1948, they are entitled to patta in view of the fact that they are the owners of the building. In support of their submission, they have relied on the decision in Vellappa Gounder v. Thirugnanasambandam Chettiar . In the said decision, the learned Judges while considering the scope of the provisions of the Act 30 of 1963 have held that it would be open to persons who are owning the superstructure to apply to the Government in whom the site is vested, by virtue of Section 3(b) of the Act for grant of a ground rent patta outside the provisions of the Act. But the admitted fact in this case is that the respondents did not exercise such a right, and as on date, they are not having any patta in their favour. Had they obtained patta, they would have become paramount title-holders, and they can raise an objection against the claim of the appellant/ plaintiff, and Section 116 of the Evidence Act will not stand in the way. But, such a right is not available now to the respondents/ defendants.
21. Without applying the abovesaid settled principles of law, the Courts below have found that the appellant/ plaintiff should have come with the prayer for declaration also, and, since no such prayer is sought for, the present suit cannot be sustained. Such a finding cannot be sustained in law in view of the abovesaid decisions of various Courts.
22. The Courts below simply rejected the case of the plaintiff on the basis that the suit property is vested in the Government in view of the Act 26 of 1948. But, the said question does not arise as the respondents/ defendants are estopped from raising such objection, in view of Section 116 of the Evidence Act.
23. Even regarding the objection raised by the respondents/ defendants that the appellant/ plaintiff is not entitled to more extent than as mentioned in the sale deed Ex.A-1, which has been accepted by the Courts below cannot be sustained, in view of the above discussions on the basis of Section 116 of the Evidence Act.
24. For all the reasons stated above, the judgments and decrees of the Courts below are set aside. Consequently, this second appeal is allowed. No costs.