JUDGMENT
H.L. Agrawal, J.
1. This second appeal by the plaintiff raises an interesting question of Law. In order to appreciate the said question, it is necessary to state the relevant facts of the case. On the 1st September, 1966, the plaintiff inducted the defendant as a tenant for a fixed term of eleven months with respect to two rooms of a house bearing Mpl. holding No. 338 in Ward No. IV of the Giridih Municipality on a monthly rental of Rs. 35 (vide Ext. 2). According to the plaintiff’s case, the defendant defaulted in payment of the rent from the month of May, 1967 and accordingly, he determined the tenancy by a notice under Section 106 of the Transfer of Property Act on the expiry of the month of September, 1967, and, thereafter, he instituted the present suit for the eviction of the defendant on the grounds of (1) expiry of the period of lease, (2) default in payment of rent and (3) personal necessity.
The defendant in his written statement admitted the execution of the aforesaid Kirayanama (Ext. 2) and taking possession of the premises in question on that basis and also to have paid the rents to the plaintiff till April, 1967. But, he took a defence that the said Kirayanama was itself a fraudulent document, and, when he became aware of this fact that the real owner was a different person, he started paying rent to him from the month of May, 1967. His further case was that he had already vacated the premises and given possession to the real owner who had let out the premises to one Md. Usman, his relation.
On an application of the plaintiff, an order under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (‘hereinafter referred to as ‘the Act’) was passed against the defendant directing him to deposit the arrears of rent as also the current and future
rents in favour of the plaintiff. The said order was also affirmed by this Court in Civil Revision No. 773 of 1968. The defendant, however, committed default in complying with the said order under Section 11-A of the Act, and, accordingly, his written statement was struck off. In spite of the rejection of the written statement, in view of the Full Bench decision of this Court in Mahabir Ram v. Shiva Shanker Prasad, 1968 BLJR 447 = (AIR 1968 Pat 415) (FB), the defendant was allowed to press the case of want of title of the plaintiff in respect of the suit premises.
2. On behalf of the plaintiff, it was contended in the courts below that in view of the provisions of Section 116 of the Evidence Act, the defer ant was estopped from denying the right of the plaintiff to institute the present suit for eviction. Both the courts below, however, have rejected this plea advanced on behalf of the plaintiff and have dismissed the suit on the finding that the Kirayanama itself was a fraudulent document, and, therefore, the transaction of letting out of the premises by the plaintiff to the defendant was vitiated and, accordingly, the principles of estoppel contained in Section 116 of the Evidence Act could not debar the defendant to raise this question. Accordingly the courts below proceeded to determine this question and held that the plaintiff was not the owner of the premises in question, and was not entitled to a decree.
3. In this Court, Mr. S. C. Ghose, appearing for the plaintiff-appellant, has seriously challenged the legality of the aforesaid findings. According to the learned counsel, the defendant having entered upon the premises by virtue of the tenancy in question so much so that he even paid the rent from the said date till April, 1967, was estopped from denying that the plaintiff was not his landlord at the beginning of the tenancy. Reliance was placed by him on a decision of the Judicial Committee in the case of Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. (AIR 1937 PC 251). In this case, it has been clearly laid down 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. It has been further laid down that what all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The contention of the learned counsel seems to me to be unassailable and must be accepted.
4. Mr. Asghar Hussain, appearing on behalf of the defendant, however, contended that after the determination of the tenancy by a notice under Section 106 of the Transfer of Property Act, the defendant ceased to be a tenant and to have any estate or interest in the premises occupied by him, and, as such, the infirmity, even if any, as contemplated under Section 116 of the Evidence Act, will cease to have any application on the institution of the suit. Learned counsel placed reliance in support of this proposition upon a decision of the Supreme Court in the case of J. C. Chatterjee v. Sri Kishan Tandon (AIR 1972 SC 2526). The argument of Mr. Asghar Hussain is fallacious on the face of it and must be rejected. Even, according to the contention of the learned counsel and the authority relied upon by him, the status of the defendant became that of a ‘statutory tenant’ after the determination of the tenancy in October, 1967. Before the said date, his position must be held to be that of a tenant. What a tenant is precluded from denying thus is the right of the plaintiff as such at the beginning of the tenancy, that is, his title to the property which was let out by him on the date when the tenancy began, that is, on the 1st September, 1966. Under the Kirayanama aforesaid, the defendant was certainly a tenant and, the theory of estoppel would have application with full force against him so far as the denial of the title of the plaintiff on the said date is concerned, which actually he purported to do in the suit. The authority cited, therefore, does not support the contention raised on behalf of the defendant. There is yet another answer to this plea of Mr. Asghar Hussain. Section 2 (1) of the Act defines a ‘tenant’ and Sub-clause (i) thereof includes a person continuing in possession after the termination of the tenancy in his favour. By this extended definition of a ‘tenant’ as occurring in the Act in question which will govern the case in hand, the principles aid down in the authority of the Supreme Court will, therefore, have no application to this case; and, in spite of the determination of the tenancy, the defendant continued to be a tenant and bound by the disability of estoppel contained in Section 116 of the Evidence Act.
5. For the foregoing reasons, in my opinion, therefore, the courts below have committed an apparent error of law in deciding the question of paramount title against the plaintiff on the facts of the present case. I would accordingly, allow the appeal, set aside the judgment and decree of the courts below and decree the suit of the plaintiff. As the question involved was a bare question of law. I will not saddle the respondent with the costs, of this Court.