1. Suit for declaration of title and possession — Tenancy created after ex parte decree — Execution of decree by title paramount — Subsequent lease by true owner. (Para 2 , 4 , 5 , 6 , 7 )
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1948 Supreme(SC) 84
Privy Council At Pat.
Sir John Beaumont, Sir Madhavan Nair, Reid, Morton of Henryton, Justice Lords Uthwatt, JJ.
Adyanath Ghatak -Appellant
Versus
Krishna Prasad Singh and another -Resopndent
Privy Council Appeal No. 74 of 1946
Decided On : 07-12-1948
Advocates Appeared:
Douglas Grant and Co., Hy. S.L. Polak and Co., Dingle Foot, C.S. Rewcastle, Charles Bagram
Douglas Grant and Co., Hy. S.L. Polak and Co., Dingle Foot, C.S. Rewcastle, Charles Bagram
Eviction by title paramount, including symbolical possession, terminates a tenant's estoppel under Section 116 of the Evidence Act. Subsequent payments to the former landlord do not create a new tenancy if the occupant holds possession as a licensee or lessee of the true owner.
Headnote:(A) Evidence Act - Section 116 - Estoppel of tenant - A tenant of immovable property is precluded during the continuance of the tenancy from denying that the landlord had, at the beginning of the tenancy, a title to such property. (Para 3)
(B) Code of Civil Procedure - Order 21, Rule 86 - Symbolical possession - Delivery of symbolical possession by a court bailiff effectively terminates the possession of the judgment-debtor and their tenants, constituting eviction by title paramount. (Para 8)
(C) Termination of Estoppel - Eviction by title paramount terminates the estoppel created by a landlord-tenant relationship. Subsequent payments made to the former landlord do not necessarily create a new tenancy if the occupant is in possession as a licensee or lessee of the true owner and the payments are not intended as rent. (Para 10)
Facts of the case:
The plaintiff claimed title to a plot of land and sought possession from the appellant, alleging the appellant was his tenant and thus estopped from denying his title. However, a third party had previously established title to the property through a court decree. The plaintiff had granted an oral tenancy to the appellant. Subsequently, a receiver for the true owner obtained symbolical possession of the property via a writ of execution. The appellant continued to occupy the property and made monthly payments to the plaintiff, though he claimed these were not rent but payments made out of fear. The true owner eventually granted a permanent lease to the appellant.
Findings of Court:
The court found that the original tenancy was determined upon the delivery of symbolical possession by the court bailiff. The subsequent payments made to the plaintiff were not rent, and the appellant occupied the property as a licensee of the true owner until the grant of a permanent lease. Consequently, the appellant was not estopped from disputing the plaintiff's title. The plaintiff's claim to remove building materials was also rejected as it should have been raised in the earlier title suit.
Issues: Whether the delivery of symbolical possession by a receiver for the true owner constituted eviction by title paramount, thereby terminating the tenant's estoppel under Section 116 of the Evidence Act, and whether subsequent payments to the former landlord created a new tenancy.
Ratio Decidendi: Eviction by title paramount, including the delivery of symbolical possession under Order 21, Rule 86 of the Code of Civil Procedure, terminates the estoppel of a tenant. If the occupant obtains permission to remain from the true owner, subsequent payments to the former landlord do not create a new tenancy if they are not intended as rent.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether eviction by title paramount terminated the tenant's estoppel from denying the landlord's title — Whether subsequent payments to the former landlord constituted rent. (Para 3 , 9 )
3. Eviction by title paramount terminates the estoppel under Section 116 of the Evidence Act, meaning the former landlord can no longer assert a tenancy. (Para 3 )
4. Appeal allowed — High Court decree set aside — Subordinate Judge's decree restored. (Para 12 )
5. Does eviction by title paramount terminate the estoppel of a tenant?
Yes. When a tenant is evicted by a party with title paramount, the tenancy is determined, and the tenant is no longer estopped from disputing the title of the former landlord. (Para 3 )
6. Can a party claim to remove building materials after a decree for possession of the entire plot is executed?
No, if the right was not claimed in the original suit and the decree for possession covered both land and buildings without distinction, the claim to remove materials lapses. (Para 11 )
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
