The main legal point established in the judgment is the significance of the covenant for quiet enjoyment under the Transfer of Property Act, including the protection it provides to the lessee against disturbance by the lessor and eviction by title paramount, as well as the implications of a breach of the covenant.

1. This is an appeal by the defendants to set aside the decree dated 31-10-1939 passed by the District Court, Nimar, in civil Appeal No. 5B of 1939. The appeal arises out of a suit for damages by the lessee for breach of the covenant for quiet enjoyment against the sons of the lessor.

2. In order to understand the points involved in this appeal it is necessary to set out briefly a few relevant facts.

3. Narayan, son of Rupchand, was an occupancy tenant of plot 58, area 11.88 acres, rental Rs. 39 in mauza Mahalgurada, tahsil Burhanpur, district Nimar. He surrendered this plot in favour of the lambardar Ramchandra, father of the defendants, for Rs. 1950 under a surrender deed dated 27-5-1929. The lambardar leased out the plot to the plaintiff, Gokuldas, on 28-5-1929, for Rs. 1960 under a lease deed dated 28-5-1929. The surrender deed and the lease deed were registered on the same date, viz., 28-5-1929.

4. Naonitdas and Brijlal filed civil Suit No. 191 of 1931 in the Court of the Sub-Judge, 2nd Class, Burhanpur, for possession of the field. The defendants in the case were Gokuldas and Ramchandra. The title of the plaintiffs in that suit was based on the following facts:

5. Narayan, son of Rupchand, was a co-sharer of a-/2/6 share of mauza Mahalgurada, and Asaram was a co-sharer of another-/2/10 share. They held Nos. 58 and 73/l respectively as their sir plots. This-/5/4 share was sold in a Collector's case on 22-3-1918 and purchased by Naonitdas, Brijlal and their cousin Haridas. The sale was confirmed on 24-4-1918 and a sale certificate was issued in favour of the auction purchasers on 15-6-1918. Haridas died subsequently and Naonitdas and Brijlal became owners by survivorship. Mutation was effected in their favour on 5-5-1919. Narayan and Asaram became the occupancy tenants of their plots 58 and 73/l respectively which they formerly held as sir. Naonitdas and Brijlal claimed that by reason of their purchase they became the landlords of Narayan and Asaram and that Ramchandra had no right to accept the surrender or to lease out plot 58 to Gokuldas and plot 73/1 to Asaram. They filed two suits, viz., (i) civil Suit No. 191 of 1931 against Gokuldas and Ramchandra for possession of plot 58 and (ii) Civil Suit No. 193 of 1931 against Asaram and Ramchandra for possession of plot 73/l. These two suits were consolidated.

6. The defendants Gokuldas and Ramcbandra pleaded that Narayan, son of Rupchand, became an ex-proprietary tenant of the entire proprietary body and that Ramchandra had power to accept the surrender from him and to lease out the field to Gokuldas.

7. The plaintiffs in their replication stated that the land was held in severalty by Narayan and that it belonged to the whole proprietary body.

8. The Court of the Sub-Judge, Second Class, Burhanpur, held that Narayan became the tenant of Naonitdas and Brijlal and not of the entire proprietary body, that Ramchandra was not entitled to accept the surrender or to lease out the land to Gokuldas and Asaram, and that the surrender and the lease were void ab initio, and decreed the claim on 23-11-1931. Gokuldas filed civil Appeal No. 6 of 1932 against Naonitdas and Brijlal. Ramchandra however was not a party to that appeal nor did he file a separate-appeal to set aside the decree of the lower Court. The decree of the trial Court was affirmed by the District Court on 18-3-1932, and by the Court of the Judicial Commissioner on 9-4-1935 in S.A. No. 283 of 1932. In execution of the warrant of possession Naonitdas and Brijlal obtained possession of plot 58 on 25-5-1935. Similarly, they obtained possession of plot 73/1 against Asaram and Ramchandra in execution of the decree in civil Suit No. 193 of 1931. The decree was affirmed by the District Court in civil Appeal No. 18 of 1932 and by the Judicial Commissioner's Court. We are, however, not concerned with plot 73/l in the present case.

9. The lessor Ramchandra is dead but the date of his death has not been stated in the case.

10. Gokulda