A tenant can plead the extinction of the landlord's title subsequent to the commencement of tenancy as an exception to the rule of estoppel under Section 116 of the Evidence Act.

S. K. RAY, J.

( 1 ) THIS second appeal arises out of a suit for eviction of defendants 1 and 2 from the suit house where they had been inducted as tenants for realisation of arrears of rent amounting to Rs. 240/- for the period of 24-6-1963 till 26-8-1964 for declaration of plaintiff's right, title and interest in respect thereof and for a further declaration that the defendants 1 and 2 have acquired no interest in the suit house under a registered sale deed executed in their favour by defendant 3 and any pasinghu Routra and Anr. vs. Purna Chandra Misra and Ors. (19. 06. 1972 - ORIHC) Page 2 of 6 interest, if any acquired thereunder is ineffective against the plaintiff's interest.

( 2 ) THE land on which the suit house stands belongs to P. W. D. Defendants 3 and 4 who are brothers obtained lease of the land and constructed the suit house thereon and remained in possession thereof as owners. Subsequently defendant no. 3 alienated his moiety interest in the suit house to defendant 4, on 5-7-1959, who, in consequence thereof, became the full owner thereof. The defendant 4 in his turn sold the suit house to defendant 5. On 14-7-1959, and the latter sold it to the plaintiff on 9-2-1962, Thereafter on 24-5-1962 the plaintiff inducted defendants 1 and 2 as tenants in respect of the two rooms of the suit house. Defendants 1 and 2, in evidence of such tenancy, executed a rent deed which has been proved in this case as Ex. 5. Defendant 1 paid rent till 25-5-1963 and thereafter defaulted. Plaintiff served a registered notice for arrears of rent and for relinquishing possession, but it was not complied with. Hence the present suit. This, in short, is the plaintiff's case.

( 3 ) OF all the defendants, only defendants 1 and 2 contested the suit. They denied the relationship of the landlord and tenant between them and the plaintiff and alleged that Ex. 5 is forged document and has not been executed by the defendant 1. They contend that the house belonged to defendant 3 and defendant 1 was a tenant under him in respect thereof. During the continuance of his tenancy, defendant 1 acquired paramount title to the suit house by purchasing it from defendant 3 under a registered sale deed, Ex. E, for a consideration of Rs. 200/ -. Another defence plea was that assuming everything in favour of the plaintiff his suit for eviction must fail due to want of notice under Section 106. T. P. Act terminating the tenancy.

( 4 ) THIS litigation had a chequered career. First, the trial Court decreed the suit on a finding that there was relationship of landlord and tenant between the plaintiff and defendants 1 and 2. He arrived at this finding primarily on the basis of Ex. 5, the rent deed, which was found to be genuine document duly executed by defendant 1. He also found that the plaintiff having purchased the suit house earlier than the alleged purchase of defendants 1 and 2 had acquired indefeasible title to it. He was further of opinion that since the relationship of landlord and tenant was denied by defendants 1 and 2 they forfeited their right of notice of termination of tenancy. Ultimately, he declared plaintiff's title and possession of the suit house and directed defendants to pay arrears of house rent and deliver vacant possession.

( 5 ) ON appeal by the defendants, the lower appellate Court held that the defendants, by their act of denial of the title of the plaintiff incurred forfeiture of their tenancy under Section 111, Clause G (2) of the T. P. Act and disentitled themselves to any statutory notice to quit. He negatived the finding of title in favour of the plaintiff because his purchase was not a registered one. but nevertheless he said that if the defendants are Droved to have been inducted into the suit house by the plaintiff they would be estopped from challenging the pasinghu Routra and Anr. vs. Purna Chandra Misra and Ors. (19. 06. 1972 - ORIHC) Page 3 of 6 plaintiff's title as landlord, however, defective it may be under Section 116 of