Denial of title of landlord.

ORDER :- Annamalai Chettiar, the plaintiff in Small Cause Suits Nos. 274, 275 and 276 of 1967 is the revision petitioner and he is aggrieved that the District Munsif of Pudukottai had dismissed all the three suits filed by him for recovery of rent from each of the respondent-defendants.

2. It is not disputed that the respondents were tenants under the Petitioner and were giving melwaram to him at the rate of 40:60 and one bundle of straw out of every five bundles till the year 1966 and that they have ceased paying the rent on the ground that the village Melur wherein the suit lands are situated and which is a minor inam had been abolished by Madras Act 30 of 1963 and the consequent notification made on 22-1-1966, that, thereafter, the rights and obligations of the petitioner-plaintiff as inamdar had been completely extinguished and that he is not therefore, entitled thereafter to the melwaram from the respondents.

3. The learned District Munsif had upheld the contention of the respondents and had accordingly dismissed the suits.

4. I am clear that the learned District Munsif had acted improperly in trying the suit, the disposal of which, I will presently show, depends upon the proof or disproof of title to immovable property and that the proper course was to have returned the plaint for representation to the original side. Of course, he is not alone to blame. The defendant has not taken any such plea in his written statement, and the learned counsel for the petitioner and the respondents have frankly conceded that the question of estoppel ought to have been also raised and disposed of during the trial itself.

5. Both the learned counsel agree that, if the respondents are estopped from denying the title of the petitioner to the suit properties, it would have been perfectly open to the learned trial Judge to have decreed the suits for recovery of rents, as it is not disputed that the respondents were cultivating the lands as lessees under the petitioner till the introduction of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act (30 of 1963) and the consequent notification on 22-1-1966.

6. I permitted the learned Counsel to argue the question of estoppel, while the learned counsel for the petitioner contends that the respondents are estopped by virtue of provisions of Section 116 of the Indian Evidence Act from disputing the title of the petitioner to the suit lands, the respondents' learned counsel states that the law of estoppel embodied in Section 116 of the Indian Evidence Act does not apply to the present cases, as respondents are not disputing the fact that the petitioner had title to the suit properties at the commencement of the tenancy and that they are entitled to show that, subsequent to the tenancy agreements, the petitioner's title to the suit properties had become completely extinguished by Act 30 of 1963 and the consequent notification in 1966 and that, consequently, his right to claim melwaram from the respondents from the date of the Act and the date of the notification has been completely extinguished and that the tenancies have been put an end to by the same Act and notification.

7. In Mt. Bilas Kunwar v. Desraj Raniit Singh, AIR 1915 PC 96 the Privy Council has laid down that a tenant, who has been let into possession, cannot deny the landlord's title, however defective it may be, so long as he has not openly restored possession by surrendering to his landlord. In Muthu Naiyan v. Sinna Sama Vaiyan, (1905) ILR 28 Mad 526, this Court has laid down that a tenant is estopped from denying the title of the landlord without first surrendering possession.

8. Section 116 of the Evidence Act clearly says that the tenant is estopped from denying, during the continuation of the tenancy, that the landlord had title at the commencement of the tenancy. Possession and permission being established, estoppel would bind the tenant during the continuation of the tenancy and until he surrenders his possession. T