The rule of approbation and reprobation requires estoppel for its application. An admission is not conclusive but is decisive unless successfully withdrawn or proved erroneous. The relationship of landlord and tenant comes into existence as a result of an agreement, express or implied. Non-payment of rent negatives the existence of such relationship.

D.K.Mahajan, J.

1. This order will dispose of Regular Second Appeals Nos. 117 to 124 of 1966. The respondents are the same in all the cases, the appellants are different persons.

2. The appellants in the year 1962 filed separate suits against the respondents for a declaration that they were the owners of the land in dispute by adverse possession. These suits were contested by the present respondents. They raised the plea that the plaintiffs in those suits were tenants and, therefore, their possession was permissive and there was no question of their becoming the owners by adverse possession. The suits ultimately failed on the ground that the plaintiffs had failed to prove that they had become owners by adverse possession of the land in dispute. It may be mentioned that there was no issue framed in these suits as to whether the plaintiffs were tenants of the defendants, the present respondents.

3. The present suits out of which these eight Second Appeals have arisen were filed by the then defendants in the earlier suits for possession of the land on the ground that the defendants were trespassers and not entitled to hold possession of the land. The defendants raised the plea that they were the tenants of the land in dispute and in any case, the plaintiffs were estopped from contending that the defendants were not tenants of the land in dispute. It may also be mentioned that the defendants raised the plea that the plaintiffs were not the owners of the land in dispute and they claimed title to the land by adverse possession. On the pleadings of the parties, the following five issues were framed by the trial Court:-

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1. Are the plaintiffs not the owners of the suit land?

2. Whether the defence taken by the defendant regarding adverse possession and their being tenants and plaintiffs being owners is not res judicata?

3. Issue No. 1 is found in favour of the defendants, hence the defendants become owner of the suit land by adverse possession.

4. If issue No. 2 is found in favour of the defendant, are they tenants of the suit land?

5. Is the suit barred by time?

All the issues were found against the defendants and the plaintiffs suit for possession was decreed. An appeal by the defendants in each of the suits has also met with no success. The lower appellate Court has affirmed the decision of the trial Court. The defendants have come up in Second Appeal to this Court.

4. The first contention of Mr. Nehra, learned counsel for the appellants is that the plaintiffs are debarred from contending that the defendants are not the tenants of the plaintiffs. According to the learned counsel, the rule of approbation and reprobation fully applies to the facts of the present case by reasons of the present plaintiffs having defeated the earlier suits of the defendants on the plea that the defendants were tenants of the land in dispute. For his contention, the learned counsel relies upon the following decisions:-

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Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593; Samudra Vijayam Chettiar v. Srinivasa Alwar, AIR 1956 Mad 801; Kuppanna Gounder v. Perurna Gounder, AIR 1961 Mad 511(FB); Pishori Lal v. Pooran Chand, ILR (1964) 2 Punj. 5.

After hearing the learned counsel for the appellants, I am clearly of the view that there is no merit whatever in this contention. As a matter of fact the decision of the Supreme Court really goes dead against the contention of the learned counsel. While dealing with the facts of that particular case, their Lordships of the Supreme Court observed as follows:-

- "The plaintiff obtained no advantage against the appellants by pleading in O. S. No. 92 of 1938-39 that the proceedings in O. S. No. 100 of 1919-20 were collusive; nor did they acting on those pleadings acquire rights to the suit properties. Nor is there any question of election, because the only relief which the plaintiff claimed in O. S. No. 92 of 1938-39 and which he now claims is that he is entitled to the suit properties. Only, the ground on which th