Basil Scott, C.J.
1. For the purpose of this appeal the material facts as found in the lower appellate Court are as follows:
2. Chandu and Amrita were brothers.
3. In 1872 Chandu mortgaged inter alia the property in suit to Babaji Teli with possession.
4. In 1885 Chandu's son Dhondi through his next friend and uncle Amrita brought Suit No. 69 of 1885 at Indapur for redemption of the mortgage.
5. On the 6th March 1886 a decree was passed permitting redemption on payment of Rs. 240 within four years.
6. On the 31st March 1890 Amrita tendered that amount in Court and applied for possession from Babaji but the tender was rejected as out of time and the equity of redemption was foreclosed.
7. At this time Amrita was tenant of the land in suit under a rent-note granted by Babaji.
8. In 1892 Babaji brought a possessory suit for three acres of land forming a small portion of the Survey No. 27 which includes the land in suit but the suit was dismissed.
9. On the 5th April 1897 the defendant passed to Amrita a rent-note for the land in suit for a term of seven years. In 1900 Amrita having died Babaji brought a suit against the plaintiff, Amrita's widow and two tenants, viz., the defendant and one Bhau Nemaji, alleging ownership of plot No. 27 and demanding possession.
10. On the 25th July 1901, he obtained a decree for possession against all the defendants in that suit for the survery number claimed except the three acres as to which he had failed in 1892.
11. Up to this time the defendant had paid rent to Amrita or his widow, the plaintiff, but thenceforward he paid none.
12. About May 1902 Babaji died without having executed his decree for possession leaving a daughter, a widow and a brother named Rajaram.
13. On the 26th July 1904, being the day after the expiry of three years from the passing of the decree, the defendant purported to purchase from Rajaram the property in suit. This has been found to be a collusive and fraudulent transaction.
14. About the same time the plaintiff sued the defendant for possession in the Court of the Mamlatdar.
15. The defendant put in a defence in September 1904 that the rent-note became hollow from the date he delivered possession to Babaji in execution of the decree. The plaintiff failed to obtain possession in that suit; and has now filed this suit to obtain possession from the defendant as a tenant holding over after his lease has expired.
16. The lower Court held that no possession was ever obtained by Babaji under his decree and that the right to execute it was regarded as time-barred with the result that the plaintiff became owner of the land in suit by the effect of limitation. It also held that the defendant has been in possession of the land under the lease from Amrita and not as owner or tenant of Rajaram. It reversed the decree of the first Court and passed a decree for the plaintiff.
17. Before us in Special Appeal the points upon which the argument has chiefly turned are whether it was open to defendant to deny the plaintiff's title and whether if so, he had effectively denied it so as to establish that he was not in possession by the plaintiff's permission. The law of estoppel between landlord and tenant is declared by Section 116 of the Indian Evidence Act. By that section a tenant is only precluded during the continuance of the tenancy from denying that the landlord had at the beginning of the tenancy a title to the property the subject of the tenancy. As the term of the lease between the plaintiff and the defendant expired on the 5th of April 1904, while the plaintiff's suit was not filed till 1906, the defendant is not estopped from disputing the plaintiff's title in this suit nor would he be estopped during the term from contending that the plaintiff's title had expired on the passing of the decree in 1901, awarding possession to Babaji against her and her tenants. It is found by the lower Court that the defendant paid rent for four years only namely till 5th April 1901. His failure to pay rent thereafter would be the natural consequence of the decree in favour of Babaji which effectively put an end to the tenancy of Amrita or his widow and we find, that in September 1904 the defendant resisted possession by plaintiff on the ground that his lease from Amrita had become void and that he had surrendered possession to Babaji. This latter statement may have been false but the assertion amounts to a denial of plaintiff's title. It cannot be said that at any subsequent date the facts, held proved, show that defendant admitted the plaintiff's title.
18. It has, however, been argued that the plaintiff was constructively in possession through the defendant during the earlier years of the lease and, therefore, that possession can be relied on to sustain this suit. It is said that prior possession, however short, is sufficient prima facie title in ejectment against a wrong-doer. This is true, but mere possession is not sufficient where it is shown that the title is out of the plaintiff. See Doe dem. Carter v. Barnard (1849) 13 Q.B. 945. In the present case the decree in 1901 established that the title was in Babaji and not in the plaintiff.
19. It is, however, contended that as the execution of that decree is barred by the law of limitation the Court cannot recognise any title in Babaji or his heirs. This contention appears to be based not upon any express rule of law but upon the analogy of Section 28 of the Limitation Act which provides for the extinguishment of the right to property when the period limited for instituting a suit for possession has determined. Where, however, the right to property has been established by a decree for possession the barring of the right of execution does not, under the section or any other provision of the law that I am aware of, extinguish the right. The remedy may be gone but the right remains. The plaintiff's title was originally based upon the rent-note passed by Babaji to Amrita. During its continuance possession was never adverse to Babaji. I fail to see that plaintiff had any title capable of being revived.
20. For these reasons I hold that the defendant is not estopped from disputing the plaintiff's title and that he has disputed it successfully. We reverse the decree of the lower appellate Court and restore that of the first Court with costs throughout on the plaintiff.
21. This was a suit for the recovery of land on the footing that the defendant was a tenant holding over after the expiration of his lease. The plaintiff is the widow of one Amrita, who had a brother named Chandu Chandu's son was Dhondi.
22. The essential facts on which this appeal falls to be decided are these. In 1872 Chandu mortgaged the property in suit to one Babaji with possession. In 1886 Dhondi obtained a decree for redemption, but as the payment ordered was not made within the time allowed, the right of redemption was foreclosed, and Amrita became a tenant of Babaji's in respect of the land. In 1892 Babaji brought a possessory suit to recover three acres of the survey number in question, but this suit was dismissed. On 5th April 1897 the lease now in suit was executed by the defendant to Amrita for a term of seven years. In 1900 Suit No. 161 was instituted by Babaji against the present plaintiff, the present defendant and another for the recovery of the survey number on the ground that he had been dispossessed by the defendant in 1898; in this suit a decree was passed on 25th July 1901 awarding possession to Babaji of the whole survey number minus the three acres in respect of if which he had failed in his possessory suit. In 1902 Babaji died leaving a brother Rajaram, from whom on 26th July 1904 the defendant purported to purchase the land in suit. The date of this alleged sale, which is found to have been collusive and fraudulent, is one day after the execution of Babaji's decree of July 1901 had become barred by limitation.
23. The Court of first instance dismissed the plaintiff's suit, but the lower appellate Court has reversed that decree being of opinion that, as Babaji never obtained possession under his decree, the plaintiff had made out her title to the land under the law of limitation.
24. The question which has formed the principal subject of argument before us s whether in the circumstances of the case there is an estoppel in favour of the plaintiff on the ground that the defendant was let in as tenant by the plaintiff's husband in 1897. The law on this branch of estoppel is contained in Section 116 of the Evidence Act, which in express terms limits the unassailability of the landlord's title to the continuance of the tenancy' and during that continuance all that the tenant is not permitted to deny is that his landlord had a good title 'at the beginning of the tenancy.' These words leave it open to the tenant to show that his landlord's title has expired and in this respect the Evidence Act has followed what has long been the law in England: see,for instance Delaney v. Fox (1857) 2 C.B.N.S. 768 and Neave v. Moss (1823) 1 Bing. 360. And that this is the clear meaning of the section has been accepted in India: Ammu v. Ramakrishna Sastri 2 M. 226 and Subbaraya v. Krishnappa 12 M. 422. In this case, therefore, there can be no estoppel in the plaintiff's favour for her suit was filed about two years after the expiration of the term fixed in the defendant's lease. Moreover, the defendant is not concerned to deny the plaintiff's husband's title at the beginning of the tenancy; he seeks only to show that that title subsequently expired. He is competent to take that defence, and, therefore, the only question is whether he has substantiated it. That question is answered by the decree of July 1901, in which it was decided that the land belonged to Babaji and that he was entitled to possession. That decree is still standing and the effect of it is to extinguish the plaintiff's title from July 1901, from which date the relation of landlord and tenant ceased to exist between the plaintiff and the defendant. No rent was paid by the defendant after 1901, and in his defence to the plaintiff's possessory suit the defendant on 20th September 1904 formally repudiated the plaintiff's title and set up the decree of 1901 and his purchase from Rajaram. It is true that in 1904 the execution of Babaji's decree became time-barred, but it is not shown how that circumstance could operate to revive title in the plaintiff, and Section 28 of the Limitation Act, which alone was cited, has no such effect.
25. Then reliance was placed by Mr. Khare on the plaintiff's possession through her tenant prior to the decree of 1901. But this is a suit in ejectment, and this prior possession cannot now avail the plaintiff. As Sir Lawrence Jenkins, C.J. said in Harikhandu v. Dhondi Natha 8 Bom. L.R. 96 a plaintiff suing in ejectment must, in order to succeed, either prove title or 'show a better right in himself to possession than is in the defendant.' Here, as I have shown, the plaintiff is unable to prove title owing to the decree in the Suit No. 161. That decree, therefore, is a complete answer to the fact of her earlier possession, which is no more than prima facie and rebuttable evidence of title. On this point, reference may also be made to Doe dem. Carter v. Barnard (1849) 13 Q, B, 945 where the plaintiff's lessor had shown a prior possession in herself extending to thirteen years. But in giving judgment the Court after citing certain authorities said: 'These cases would have warranted us in saying that the lessor of the plaintiff had established her case if she had shown nothing but her possession for thirteen years. The ground, however, of so saying would not be that possession alone is sufficient in ejectment (as it is in trespass) to maintain the action; but that such possession is prima facie evidence of title, and, no other interest appearing in proof, evidence of seisin in fee.' Here the effect of the evidence as to early possession is displaced by the decree of 1901, and the suit in ejectment is consequently not maintainable. I agree, therefore, that the appeal should be allowed.