Sir John Beaumont.-

This is an appeal from a judgment and decree dated 21st April 1943, of the High Court of Judicature at Patna, which reversed a judgment and decree dated 27th May 1940, of the Subordinate Judge, Dhanbad, Bihar.

[2] The suit out of which this appeal arises was commenced on 11th January 1939, in the Court of the Subordinate Judge, Dhanbad, Bihar, by respondent 1, who will hereafter be referred to as "the plaintiff," against the appellant, who will hereafter be referred to as "defendant 1," and respondent 2, who will hereafter be referred to as "defendant 2." The plaintiff claimed a declaration of his title to the land in suit and a decree for possession against defendant 1, and other relief which is not material to the present appeal. The property in suit was a plot No. 2192, with buildings thereon, situate in the district of Manbhum, Pargana Jharia.

[3] J The claim of the plaintiff against defendant 1 was based on the contention that defendant 1 was his tenant and estopped from disputing his title to the land in suit. The learned Subordinate Judge, whilst not questioning the general proposition of law, embodied in India in S. 116. Evidence Act, which precludes a tenant of immovable property during the continuance of the tenancy from denying that his landlord had at the beginning of the tenancy a title to such property, considered that the estoppel had been terminated by the eviction of the plaintiff and defendant 1 by title paramount. In appeal, the High Court agreed that eviction by title paramount would terminate the estoppel, but considered that there had been no such eviction, and that defendant 1 was estopped from disputing the title of the plaintiff. Accordingly the High Court decreed the plaintiff's suit against defendant 1. It is apparent that the difference between the Courts in India arose upon the facts proved and the inferences to be drawn from them, and this is the matter which falls for determination in the present appeal.

[4] Prior to the commencement of the suit the plaintiff claimed to been titled to the property in suit which formed part of the Jharia Raj estate. Defendant 2 in Suit No. 43 of 1919, which originated in the Subordinate Court of Alipore and was finally decided in appeal by His Majesty in Council, had established his title as proprietor of the Jharia Raj estate including the property in suit. Notwithstanding this the plaintiff had got his name recorded as the owner in possession of the property, plot No. 2192, in the local Record of Rights on 26th January 1925.

[5] On 19th August 1925, defendant 2 filed Suit No. 57 of 1925 (hereinafter referred to as "the 1925 suit") in the Court of the Subordinate Judge of Dhanbad, Bihar, against the plaintiff and other parties praying for a declaration of his title to (inter alia) plot No. 2192, for vacant possession of such plot and other plots, and for cancellation of the entry of the plaintiff's name in the Record of Rights. On 14th September 1926, judgment was given in the 1925 suit, ex parte as against the plaintiff who did not appear at the hearing. The learned Judge made a declaration that defendant 2 was entitled to the property in suit and to get vacant possession of the same. Thereafter, the plaintiff applied under the provisions of the Code of Civil Procedure to set aside the ex parte decree made against him in the 1925 suit. This application was dismissed on 3rd May 1927, and an appeal from the order of dismissal was dismissed on 24th July 1928,

[6] On a date which has not been definitely determined but which was between the passing of the ex parte decree of 14th September 1926, and the dismissal of the application by the plaintiff to set aside such decree, the plaintiff granted to defendant 1 an oral monthly tenancy of the property in suit, plot No. 2192, at a rent of Rs. 30 per month.

[7] Some time in 1927, a receiver of the property was appointed by the High Court at Calcutta, and the receiver was substituted as a decree-holder for def