N.J. Wadia, J.
1. These appeals which have been heard together arise out of two Suits Nos. 84 and 85 of 1925 filed by the appellant against the respondents to recover possession of certain lands leased to them by him. The lands belonged originally to two brothers Gopal and Martand, sons of one Girmaji Yardi and distant cousins of the appellant. Suit No. 84 related to the lands which had originally belonged to Martand, and Suit No. 85 to those which had belonged to Gopal. The history of the lands in the two suits is different, and it is therefore necessary to state the facts with regard to each separately.
2. Martand had mortgaged his entire separated half share to his brother Gopal on October 27,1896, by a possessory mortgage. Within a month after this, on November 18,1896, he sold his rights in the lands to the appellant's brother Ganesh Raghunath Yardi by a sale-deed (Ex.84). In March 1901, Ganesh mortgaged the lands to respondent No. 1 and his brother Sadu and to Rakhma, the father of respondent No. 2, with possession, for Rs. 1,000. In 1910 he instituted Suit No. 378 of 1910 against the respondents to redeem the mortgage of March 1901. The appellant and his brother Govindrao were co-defendants in that suit. During the pendency of the suit Ganesh died and the appellant and his brother Govindrao were substituted as plaintiffs. On July 4, 1912, a decree was passed by which the plaintiffs in that suit (i.e, the present appellant and his brother) had to pay Rs. 625 and costs to the mortgagees (i.e., the present respondents) within six months, and the respondents were ordered to restore possession of the lands to the appellant and Govindrao. The decretal amount was paid off by the plaintiffs before the stipulated period and the defendants transferred possession by passing the rent-note (Ex. 25) to the plaintiff, i.e., the present appellant on December 16, 1912. That rent-note forms the basis of Suit No. 84.
3. Gopal died some time before 1900 and the lands belonging to him were, after his death, mortgaged with possession by his mother Laxmibai and his widow Sitabai to two persons Bhawani valad Punjaji Pachora and Vithu valad Raoji Lonare on January 16, 1900. In November of the same year Laxmibai and Sitabai sold the whole of Gopal's share to the appellant's brother Ganesh by a sale-deed (Ex. 81). Ganesh filed Suit No. 377 of 1910 against the heirs of the original mortgagees for redemption. He died during the pendency of the suit, and the appellant and his brother, who had been on the record as defendants, were substituted as plaintiffs. The suit ended in a compromise decree passed on June 5, 1912, by which the appellant and his brother Govindrao were ordered to pay to the mortgagees Rs. 1,275 and costs and future interest by yearly instalments of Rs. 150 each, and it was provided that the mortgagees were to remain in possession as tenants of the plaintiffs on a yearly rental of Rs. 150, and that the amount payable lo them by the plaintiffs under the decree should be satisfied out of the amount of the rent. On September 2,1913, the plaintiffs in that suit paid off the full amount due from them under the decree to the mortgagees, and the latter delivered possession of the lands to the plaintiffs.
4. On January 10, 1914, the plaintiff leased the lands for ten years to the present respondents by a rent-note (Ex. 22) which forms the basis of suit No. 85. Prior to this, however, in 1913, Laxmibai and Sitabai had brought Suit No. 430 of 1913 against the original mortgagees on a rent-note passed to them in 1910. There was a compromise decree on February 9, 1914, by which the two women were allowed to get possession, and on April 21, 1914, they are said to have obtained actual possession. On December 27, 1914, they leased these lands to a stranger for 11 months on a rent-note. The appellant, who had already leased the lands to the respondents on January 10, 1914, filed two miscellaneous applications (Nos. 56 and 57 of 1914) under Order XXI, Rule 100, Civil Procedure Code, against Laxmibai and Sitabai, complaining that he had been in possession through his tenant respondent No. 1, and that the possession of his tenant had been disturbed. The Court on January 22, 1915, ordered possession to be restored to the appellant, and it was actually restored on June 24, 1915, and respondent No. 1 passed a receipt for the lands on behalf of the appellant. The respondents contested both the suits on the ground that the lands had belonged really to Laxmibai and Sitabai, the mother and widow of Gopal, and that the respondents had been cultivating them from these two women for 25 to 30 years. They admitted having passed the suit rent-notes, but alleged that they had done so as a result of the fraudulent representation of the appellant that he was taking the rent-notes in the names of the real owners Laxmibai and Sitabai. They further alleged that the rights, if any, acquired by the appellant under the rent-notes had become extinguished by the decision in Suit No. 1142 of 1919, and that that decision operated as res judicata so far as these suits were concerned. They also alleged that after the expiry of the period of these rent-notes they had passed rent-notes for the suit lands to the real owners Laxmibai and Sitabai.
5. The trial Court found that the respondents had failed to prove that the appellant had obtained the rent-notes from them by fraud. It also held that the appellant was not barred from suing on the rent-notes by the decision in suit No. 1142 of 1919, and the appeal arising out of it, that the suits were not barred as res judicata, and that the respondents were stopped under Section 116, Evidence Act, from denying the appellant's title. It therefore decreed the plaintiff's suits. In appeal the First Class Subordinate Judge of Nasik with appellate powers held that the respondents had not been let into possession of the lands by the appellant under the two rent-notes (Exs. 22 and 25), that these rent-notes had really been taken by the appellant for Laxmibi and Sitabai, that respondents were not estopped from denying the appellant's title and setting up that of Laxmibai and Sitabai and that the appellant's title had been extinguished by the decree in Suit No. 1142 of 1919. He, therefore, reversed the decrees of the trial Court and dismissed the plaintiffs suits. The respondents failed completely to substantiate the allegation of fraud and misrepresentation made by them. That allegation is absolutely inconsistent with the conduct of respondent No. 1 in connection with the proceedings arising out of applications Nos. 56 and 57 of 1914 made by the appellant against Laxmibai and Sitabai. In those applications the appellant had claimed that he was the owner of the lands and in possession of them through his tenant. Respondent No. 1 Ghama was examined in connection with the applications on January 9,1915 (Ex. 99) and stated that the lands were at the time in possession of the appellant and that he was cultivating them as the appellant's tenant. It is clear that if respondent No. 1 had passed the rent-notes to the appellant under the impression that he was passing them in favour of Laxmibi and Sitabai, he would never have supported the appellant in these applications against Laxmibai and Sitabai, nor would he have made the statements referred to above expressly admitting that the appellant was his landlord.
6. The trial Court found that no fraud had been proved, and that the respondents had passed the rent-notes to the appellant under the bona fide belief that he was the owner. The Appellate Court agreed that the action of the plaintiff was not fraudulent in obtaining the rent-notes in his own name, but it found that a different kind of fraud had been committed. It held that the action of the plaintiff and defendants was fraudulent in executing the rent-note of January 10, 1914, in the name of the plaintiff, who was evidently a benamidar of the two ladies, even when they (i.e., the plaintiff and defendants) knew that the real beneficial owners, viz., the two ladies, had already got possession of the lands and had leased them to the representatives of the mortgagors. This was a kind of fraud which the defendants themselves had never alleged. According to the Appellate Court, the defendants-respondents were themselves parties to the fraud.
7. It has been held by the Privy Council in Abdool Hoosein Zenail Abadin v. Turner 14 I.A. 111 : 11 B. 620 : 5 Sar. 25 : 11 Ind. Jur. 352 that a charge of fraud must be substantially proved as laid, and that when one kind of fraud has been charged, another kind of fraud cannot, on failure of proof, be substituted for it. In the present case not merely was the fraud, which the Appellate Court has held proved, not alleged by the respondents in their pleadings, but it was one which, even if it had been alleged in their pleadings, they could have taken advantage of. They could not set up a fraud to which they had themselves been parties in order to defeat the plaintiff's claim: Sidlingappa v. Hirasa 31 B. 405 : 9 Bom. L.R. 542. There is, however, no evidence to support the Appellate Court's finding that there was any collusion between the appellant and the respondents to practise a fraud on Laximibai and Sitabai.
8. There is evidence to show that the respondents were let into possession of the lands in both the suits by the appellant. With regard to the lands which had belonged originally to Gopal, the respondents had not been in possession prior to the date of their lease, i.e., January 10, 1914. The lands had been in the possession of the mortgagees, Bhawani walad Punjaji Puchora and Vithu V. Raoji Lonare, from January 1900. Laxmibai and Sitabai had obtained possession of the lands from them in suits Nos. 430 and 431 of 1913 and had leased them to a stranger. The respondents' connection with the lands began with the lease granted to them by the appellant. It appears that they had been put in possession by him; Their possession was disturbed by Laxmibai and Sitabai and the appellant had to apply to the Court under Order XXI. Rule 100 in miscellaneous applications Nos 56 and 57 of 1914. He obtained possession, the lands being actually handed over to respondent No. 1 as his tenant: Laxmibai and Sitabai filed suit No. 65 of 1915 against the appellant and respondent No. 1 to get the orders passed in miscellaneous applications Nos. 56 and 57 of 1914 set aside, but the suit was dismissed. During the course of these proceeding respondent No. 1 was examined as a witness and he stated on January 9, 1915, that the lands were at the time in the possession of the appellant, and that he, as a tenant of the appellant, was in possession of them on his behalf. There can be no room for doubt, therefore, that with regard to these lands the respondents were let into possession by the appellant, and the Appellate Court's finding on this point that
the defendant thus got possession of the lands in suit No. 85 of 1915 through Court on June 24, 1915, under the kabaja pavati, Ex. 31 and 32 in suit No. 95 of 1915, and not on January 10, 1914, under the rent-note,
is difficult to understand. The possession was restored by the Court on June 24, 1915, because it found that the appellant's tenant had been in possession under the rent-note of January 10, 1914, and that possession had been wrongly disturbed.
9. With regard to the land of Martand's share the respondents had been in possession as mortgagees from Ganesh from 1901. In 1912, in suit No. 378 of 1910 they were ordered to hand over possession to the appellant on the latter paying to them a sum of Rs. 625 which was found due. This amount was paid and the respondents, instead of handing over actual possession, passed to the appellant the rent-note in suit (Ex. 25) taking the land on lease from him for ten years.
10. For the purposes of Section 116, Evidence Act, it is not necessary that the tenant should have been actually put into possession by the landlord. It is sufficient if, being already in possession, he passes a rent-note to the landlord acknowledging that a new tenancy has arisen. In Shankar Nana Patil v. Jagannath Mathuralal 111 Ind. Cas. 911 : 30 Bom. L.R. 741; A.I.R. 1928 Bom. 265, it was held by a Division Bench 'of this Court that once the relation of landlord and tenant was established between the parties, the tenant was estopped from denying the landlord's title under Section 116, Evidence Act. It was not necessary that the tenant should be put into possession by the landlord for the estoppel to arise. Where a tenant was already in possession before a new tenancy began, the pertinent question to ask under Section 116 was not whether the tenant had been let into possession by the landlord, but whether the new tenancy had arisen. This view was followed in Nagindas Sankalchand v. Bapalal Purshottam 125 Ind. Cas. 695 : 54 B. 487 : 32 Bom. L.R. 692 : I R. (1830) Bom. 359 : A.I.R. 1930 Bom. 395.
11. The conduct of the parties in connection with miscellaneous applications Nos. 56 and 57 of 1914, and in suit No. 65 of 1915 which arose out of them, renders it impossible to hold that the appellant could have taken the rent-notes as a benamidar for Laxmibai and Sitabai or that the respondents could have been under that impression. Both the appellant and the respondents strenuously contested the claim of Laxmibai and Sitabai in 1915, very soon after the respondents' tenancy had commenced, and asserted the appellant's ownership over the lands. In both the applications the appellant said that he was the owner of the lands and in possession of them as owner through his tenant. Respondent No. 1 made a similar statement. It has been argued by Mr. Desai for the respondents that the proceedings in these two applications and in suit No. 65 of 1915 were concerned only with the question of the present possession of the lands and did not relate to the question of title. This, however, is not correct. From the applications and the order passed on them, and from the plaint in suit No. 65 of 1915, it is clear that what the parties were fighting about was the question of the title to the lands and not merely the question of present possession. It was held in Unni Moidin v. Pocker 60 Ind. Cas. 109 : 44 M. 227; (1920) M.W.N. 698 : 12 L.W. 598 : 39 M.L.J. 626 : 28 M.L.T. 342, that the scope of a suit under Order XXI, Rule 103, Civil Procedure Code, filed to contest an order made under either Rule 98, or Rule 99 or Rule 101, is not the determination of the mere question of possession of the parties concerned but the establishment of the right or title by which the plaintiff claims the present possession of the property. It is true that these proceedings and the suit related only to the lands of Gopal's share and bad nothing to do with the lands in suit No. 84: but the respondents were holding the lands in both the suits at the time from the appellant, and it cannot be believed that when they contested so strenuously the claims of Laxmibai and Sitabai to the one set of lands, and denied that she was the real owner, they could have accepted her claim with regard to the other set of lands. In both the suits, therefore, the defendants (i.e., the respondents) must be held to have been let into possession by the appellant and to have passed the suit rent-notes to him knowing that they were being passed in the appellant's own name, and believing that he was the real owner.
12. The question then arises whether the respondent can deny the appellant's title, or whether they are prevented from doing so under Section 116, Evidence Act. It has been contended for the respondents that in Suit No. 1142 of 1919 it was held that the sale-deeds (Exs. 81 and 84) passed by Martand, Laxmibai and Sitabai to Ganesh in 1896 and 1900, on which the appellant's title is based, were bogus, and passed merely to save the property from creditors. The suit was decided in 1920 and in appeal the decision of the lower Court was confirmed in August 1923. It has been argued that as a result of the finding in that suit the appellant was held to be only a benamidar and had lost his title to the lands as against the two women, and that subsequent to the expiry of the leases now sued on, the respondents had attorned to the real owners and taken the suit lands on lease from them. The question of the appellant's title to these lands was, therefore, res judicata as between him and the two women, and as the respondents now claim through the two women, it was res judicata between the appellant and the respondents also. It is, therefore, contended that as the appellant's title had been extinguished by that decision the respondents were not estopped from denving it. Mr. Desai for the respondents has relied on the rulings in Shravan Shahasing Patil v. Fattu 98 lad. Cas. 911 : 28 Bom.L.R. 1357, Purshottam Yeshwant v. Vishnu Garathe Dalvi 105 lad. Cas. 859 : 29 Bom.L.R. 1332, and Chandri v. Daji Bhau 24 B. 504 : 2 Bom.L.R. 491, as showing that where on the expiration of a tenancy, the tenant continues in possession without executing a fresh rent-note to the landlord, or without paying rent, the possession by the tenant becomes adverse to the landlord. But it is a well-established principle 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. In Vasudev Daji v. Babaji Ranu 8 B.H.C.R. 175, it was held that if the existence of a tenancy be established by the fact of the tenant's payment of rent to his landlord or otherwise, the tenant cannot ordinarily dispute the title of his landlord in a suit brought against him for recovery of possession. He must first give up possession and then, if he has any title aliunde, that title may be tried in a suit of ejectment against the landlord. It was held in. Bilas Kunwar v. Desraj Ranjit Singh 30 Ind. Cas. 299 : 37 A. 557 : 19 C.W.N. 1207 : 29 M.L.L.J. 335 : 2 L.W. 830 : 18 M.L.T. 248 : 991 17 Bom. L.R. 1006, 22 Cri.L.J. 516; (1915) M.W.N. 757;42 I.A.202 (P.C.), 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. In Ekoba v. Dayaram 55 Ind. Cas. 353 : 22 Bom. L.R. 82, in which the decision in Bilas Kunwar v. Desraj Ranjit Singh 30 Ind. Cas. 299 : 37 A. 557 : 19 C.W.N. 1207 : 29 M.L.L.J. 335 : 2 L.W. 830 : 18 M.L.T. 248 : 1991 17 Bom. L.R. 1006, 22 Cri.L.J. 516; (1915) M.W.N. 757;42 I.A.202, was followed, Macleod, C.J. held that a tenant who wishes to dispute his landlord's title must not only see that the tenancy has come to an end, but that the possession which was in him as a tenant has been surrendered. A tenant who holds over and remains in possession cannot be allowed to use that possession as a lever to support a case in which he denies the landlord's title.
13. It is contended for the respondents, however that Section 116, Evidence Act, does not prevent them from showing that subsequent to the commencement of the tenancy, the title of the landlord has been extinguished. In support of this contention reliance is placed on the ruling in Nakchedi Bhagat v. Nakchedi Misir 18 A. 329, where it was held that the rule of law which prohibits a mortgagee or tenant from disputing his mortgagor's or landlord's title does not bar the mortgagee or tenant from showing that the title of his mortgagor or landlord under which he entered has determined.
14. According to the respondents the appellant's title to the suit lands was extinguished by the decision in Suit Mo. 1142 of 1919. To settle this point it is necessary to see what Suit No. 1142 of 1919 really decided. The suit had been filed by the appellant against one Anant Raoji Kavale to recover certain lands other than the suit lands which Kavale had purchased from Laxmibai and Sitabai to whom they had been sold by Ganesh's widow Sarasvatibai. Laxmibai and Sitabai were parties to the suit as defendants but did not contest it either at the trial or in appeal. It was held by both the Courts that the sale-deeds passed to Ganesh by Martand, Laxmibai and Sitabai, were bogus and intended only to save the property from creditors. There was no specific issue on the point, but it may be conceded that the nature of the sale-deeds was in issue in substance in that suit. That suit was not, however, concerned with the lands which are the subject matter of the present suits. What the learned Judge in Suit No. 1142 of 1919 decided was that the sale-deeds to Ganesh in 1896 and 1900 were bogus and intended only to defraud creditors, and that the real ownership of the lands remained with Laxmibai and Sitabai. This finding, however, would not necessarily prove that the appellant's title to the lands involved in the present suits has been extinguished. The sale deeds were passed 20 to 24 years before suit No. 1142 of 1919. The appellant's title to these lands was not the subject-matter of that suit and it is possible that he may have acquired title to the suit lands subsequent to the years 1896 and 1900 by adverse possession or in other ways.
15. With regard to Gopal's land, in Suit No. 85 he had openly denied the title of Laxmibai and Sitabai in 1915 by his application under Order XXI, Rule 100, Civil Procedure Code. His claim had been upheld, and under Order XXI, Rule 103, Laxmibai and Sitabai had to establish their right within one year. They filed Suit No. 65 of 1915 to do so, but for some reason the suit was withdrawn and allowed to be dismissed. It is doubtful whether they could now establish their title to these lands against the appellant. Even with regard to the land in Suit No. 84 the appellant may be able to establish a valid title against them. His title to these lands was not in issue in Suit No. 1142 of 1919, and could not be and was not decided in that suit. The rulings in Ananta Balacharya v. Damodar Makund 13 B. 25, and Kedar Nath Singh v. Sheo Shankar 76 Ind. Cas. 370 : 45 A. 515 : 21 A.L.J. 421; A.I.R. 1933 All. 613, which have been relied on for the respondents do not really help them. In Ananta Balacharya v. Damodar Makund 13 B. 25, the question in issue in the later suit was whether a partition had taken place between two brothers, and it was held that the decision in an earlier suit between those brothers that a partition had taken place rendered the question in issue in the later suit res judicata. In Kedar Nath Singh v. Sheo Shankar 76 Ind. Cas. 370 : 45 A. 515 : 21 A.L.J. 421; A.I.R. 1933 All. 613, it was held that where a claim to a certain property was based entirely on a sale-deed and the question of the validity of the sale-deed had arisen directly in a previous suit between the same parties, relating to another property also included in the deed which could not be determined without a decision as to the validity of the sale-deed, the decision in the previous suit must be held to bebinding as between the parties.
16. In the present suits the question of the appellant's title to these particular lands which might be based on other grounds besides the sale-deeds of 1896 and 1900, was not directly or substantially in issue in Suit No. 1142 of 1919. The trial Court thought it possible that the plaintiff may lay claim to the suit lands on the strength of adverse possession against Laxmibai and Sitabai and that this question was a moot point which may be agitated by the plaintiff if a claim were made against him by the two women that this question had been left untouched by the decision in Suit No. 1142 of 1919 and it could not, therefore, be said that the plaintiff's claims in respect of these lands were barred as res judicata. This view appears to me to be perfectly correct. The appellant's rights in respect of these lands as against Laxmibai and Sitabai have yet to be decided. His claims in the present suits to be the real owner of these lands is not barred as res judicata nor can it be said that his title to these lands has been extinguished. It has been proved that the respondents executed the suit rent-notes to the appellant, they acknowledged his title in 1915; they have admittedly paid rent to him, and they cannot, therefore, be allowed to dispute his title. Mr. Desai for the respondents has relied on the ruling in Kuppu Konan v. Thirugnana Sammandam Pillai 31 M. 461, to show that where a deed is executed by a tenant in favour of a person benami for another, the real owner and not the benamidar, is the landlord whose title the tenant is estopped from denying unders. 116, Evidence Act. In a suit by such benamidar for rent, the tenant can deny his right to sue on the ground that he is not the person entitled. It may be noted that in the case cited the plaintiff had admitted that he was a benamidar.
17. In the present case the conduct of the parties in Miscellaneous Applications Nos. 56 and 57 of 1914 and Suit No. 65 of 1915 renders it impossible to hold that in the suit rent-notes the appellant was toly a benamidar for Laxmibai and Sitabai or that the respondents had believed that he was a benamidar. On the contrary the evidence shows that they dealt with him as the real owner and asserted his title as such against Laxmibai and Sitabai. In Prabhat Chandra Chatterji v. Bijoy Chand Mahatap : AIR1924Cal84 , it was held that where the defendant had executed a kabuliyat and obtained possession of certain lands as tenant on the strength of the kabuliyat, he was estopped from denying the title or seisin of his grantor in a suit for rent on the ground that he was merely a benamidar of some other person. On these grounds I allow the appeals and reverse the decisions of the lower Appellate Court and restore those of the trial Court. The appellant is entitled to his costs in this Court and in the lower Appellate Court from the respondents.