ORDER

1. Leave granted.

2. The facts briefly are that the respondents herein filed OS No. 2379 of 1990 in the Court of 5th Assistant Civil Judge, City Civil Court, Hyderabad against the appellants no. 1 to 4 for ejectment and resumption of possession of the suit land. The case of the respondents in the plaint was that the appellants had taken lease of the suit land from their common ancestor late Shri Dwaraka Pershad who had purchased the suit land from Nawab Raisyar Bahadur. The further case of the respondents in the plaint was that as the appellants failed to pay any rent from 1986 and renewed the lease after 1986, the respondents gave a notice to the appellants on 30.11.1989 to vacate the suit land. The appellants filed written statement pleading, inter alia, that the suit land actually belonged to the appellants and the lease deed had been executed and the rent had been paid to the respondents by mistake of fact. The learned Civil Judge decreed the suit for eviction after recording a finding, inter alia, that the appellants have not been able to prove the title to the land. The appellants filed First Appeal before the 3rd Additional Chief Judge, City Civil Court, Hyderabad which was numbered as AS No. 294 of 2005. The First Appellate Court held that the appellants were estopped from setting up title in them so long as they have not surrendered possession of the land to the lessees, namely, the respondents and further held that the appellants have not been able to establish their title to the suit land.

3. Aggrieved, the appellants filed Second Appeal SA No. 270 of 2009 before the High Court and by the impugned order, the High Court has dismissed the Second Appeal after holding that the appellants cannot be permitted to deny the title of the respondents under the provisions of 116 of the Indian Evidence Act and also holding that the appellants have not been able to adduce any evidence to prove that the suit land belonged to the appellants. The High Court also held in the impugned order that in a writ petition WP No. 9717 of 1993 filed before the High Court one Mohammed Khasim and Ameena Begum had challenged the entries with regard to Survey No. 58 (Old) of Bahloolkhanguda Survey No. 127 (new) and the High Court had observed that Rayees Yar Jung was the owner and sales made by Rayees Yar Jung were therefore, valid. The High Court further observed that the order passed by the High Court in writ petition no. 9717 of 1993 was challenged before this Court by the Government but this Court had dismissed the appeal and therefore, the appellants were estopped from taking a different stand with regard to the ownership of the land. With the aforesaid findings, the High Court dismissed the Second Appeal of the appellants.

4. Mr. P.S. Narasimha, learned senior counsel appearing for the appellants cited a full Bench Judgment of the Madras High Court in Venkata Chetty Vs. Aiyanna Gounden AIR 1917 Madras 789 and particularly the observations of Abdul Rahim, officiating C.J., to the effect that a tenant who was not let into possession by the person seeking to eject him is not estopped from denying the plaintiff's title and he may also show that the title is in some third person or himself. He also relied on the observations of Sheshagiri Aiyar, J. in the aforesasid case that under the Indian Contract Act, it can be shown that any contract into which a party has entered into is vitiated by mistake and the principle of estoppel should not be held to override these provisions of law of contract. He argued relying on the aforesaid observations in the judgment of the Madras High Court that the appellants, therefore, were entitled to plead in the written statement that the execution of the lease acknowledging title of the respondents was a mistake of fact and that the appellants were actually the owners of the suit land.

5. We have considered the submissions of Mr. P.S. Narasimha and we find that although plea was raised by the appellants in thei