Norman Macleod, Kt., C.J.
1. The plaintiff sued to recover possession of the suit property as owner with mesne profits at Rs. 60 a year and costs of the suit, alleging that the suit property originally belonged to one Vithoba valad Maharoo his uncle. Vithu died in 1882 leaving a widow Dagoobai. In 1903 she gifted the plaint property to the defendant. The widow died in 1906, and thereafter the plaintiff executed a rent-note in favour of the defendant. The defendant afterwards brought a suit for possession under a rent-note and a decree was passed. But it is admitted for the purposes of this suit that the defendant did not get possession under his decree, and the property is now in the possession of the plaintiff's son. Both Courts have held that in the circumstances of the case the plaintiff is estopped from bringing this suit. There can be no doubt, that as long as (the tenancy continued under the rent-note passed by the plaintiff o the defendant, the plaintiff was debarred from disputing the defendant's title. But it has been argued before us for the appellant, that that bar was removed, as soon as a decree was passed for possession in favour of the defendant. If that argument were correct, it would follow that a party who remains in possession of the property rented could bring a suit disputing his landlord's title, in spite of the fact that the landlord had not got possession after the period of the tenancy had come to an end. In Musammat Bilas Kunwar v. Desraj Ranjit Singh : (1915)17BOMLR1006 it was laid down by their Lordships of the Privy Council that Section 116 of the Indian Evidence Act rests on the principle well established by many English cases that a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. That decision is sufficient to destroy the argument which has been raised before us by the appellant's counsel. ,
2. Now that the position of the plaintiff has been realised, an offer has been made, that he should surrender possession to the defendant, and that then the case should be remanded to the lower Court if or trial of the issue whether the plaintiff had given his consent to the alienation by the widow. That suggestion might have been adopted if the defendant had consented to the course proposed, but without that consent, we do not think we should allow that indulgence to the plaintiff after four years, and after having the case tried in three Courts. The finding is that ho cannot succeed on the plaint as framed. He offered to do what he ought to have done before the suit was filed, that is to say, give possession to the defendant, the possession which was decreed in the defendant's suit. If we allowed that indulgence, we think that would open the door to similar action in other cases. It is necessary to lay down perfectly clearly, that a tenant who wishes to dispute his landlord's title, must not only see that the tenancy has come to an lend, but that the possession which was in him as a tenant has been I surrendered, We cannot allow a tenant to hold over and remain in possession, and then use that possession as a lever to support a case in which he denies the landlord's title. I think the appeal E must be dismissed with costs. Ma
3. I agree. The only reason why I add a few words of my own is that it may be thought that we are going outside the meaning of the words of Section 116 of the Indian Evidence Act. There is no doubt in this case that the plaintiff became a tenant of the defendant, and was placed in possession of the premises leased by the landlord. That is found as a fact. At a later period the tenant denied the landlord's title. The landlord was compelled to bring a suit against him and he obtained a decree for possession. It may be said, therefore, that the tenancy then came to an end, and that Section 116, as its words describe, only applies during the continuance of the tenancy. However, we have a very clearly expressed opinion of their Lordships of the Privy Council in the case of Musammat Bilas Kunwar v. Desraj Ranjit Singh : (1915)17BOMLR1006 . There can be no question but that we must accept and follow the principle laid down by their Lordships of the Privy Council. It matters very little whether we regard that judgment as giving an extended meaning to the words 'during the continuance of the tenancy' used in Section 116 of the Indian Evidence Act, or whether we merely regard the decision of their Lordships as an application of a principle somewhat wider than that which is given expression to, or limited by, the precise words of Section 116. In either event we are bound to do what we are doing. If the Privy Council have extended the meaning of certain words in that section, we must do the same. If on the other hand they have merely applied; a principle which has a wider application than is given to it by the mere words of Section 116, again we must do the same. If I am permitted a preference, I should say that the Privy Council did not extend the meaning of the words, but acted on a principle that is perfectly sound and is well-recognised in equity. We cannot properly depart from that principle, although it has received a somewhat restricted application in Section 116 of the Indian Evidence Act. I, therefore, agree that the appeal must be dismissed with costs.