1. The appellant filed a suit for the recovery of 'Wara' produce or its value for the agricultural year 1946-47. it is alleged that the defendants were cultivating the schedule laud for about five years prior to suit and failed to deliver the landlord's share of the produce due in January 1947. The defendants denied the lease during the suit year and pleaded that one Gangamma, in pursuance of a decree against the plaintiff and his brother, brought the schedule property to sale and purchased the same; she also took possession of the property through Court; they plead that they have delivered the produce to the vendee of Gangamma and the liability is thus discharged.
2. The original lease of the suit land by the plaintiff has been established. The lease appears to be oral continuing from year to year and the agricultural year begins on 1st April of every year and ends on 31st March of the subsequent year. The courts below have found on facts that Gangamma who obtained a maintenance decree against the plaintiff and his brother in O.S.No. 307 of 37-38 on the file of the Munsiff of Tumkur, purchased the properties belonging to the plaintiff's family the suit land being one of the items charged for maintenance. The purchaser also obtained delivery of possession of the property in Misc. Case No. 176 of 1945-46 on 28th March 1946. These findings are not challenged in this Curt. The trial Court held that the plaintiff is estopped from claiming the rent and dismissed the suit which finding was also confirmed by the first appellate Court. This second appeal is against the appellate decree.
3. Sri T. Madhava Rao contended that the tenants are estopped from denying the title of the landlord, during the continuance of the tenancy. According to Section 116, Evidence Act, no tenant of the immoveable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immoveable property. The rule embodied in the section, no doubt, precludes the tenant from denying title at the tie of the creation of the tenancy but admits of the qualification that subsequent to the creation of tenancy the tenant is not debarred from contending that the land-lords's title is subsequently lost or defeated.
'Nor does the principle apply to prevent a tenant from pleading that the title of the original owner has come to an end'
as observed in Krishna Prasad v. Baraboni Coal Concern Ltd. . The tenancy may, amongst other reasons, be terminated by act of parties or by operation of law. Woodfall in his book 'Landlord and Tenant' states at p. 341 :
'Eviction of title paramount means eviction by a title superior to the title both of the lessor and lessee, against which neither is enabled to make a defence' and 'Eviction by a title paramount is a defence by the lessor for subsequent rent.'
4. The next point raised by the learned counsel for the appellant is that the original lease is still in force inasmuch as there is no surrender by the tenants as they never have been actually evicted from the demised land. Actual physical ouster by title paramount is not necessary to prove eviction. If there is clear proof of the person claiming paramount title, it constitutes cessation of title in the lessor (vide Ram Ranjan Roy v. Jayanti Lal, A.I.R. (13) 1926 Cal. 906 : (96 I.C. 11). As laid down in Jogendralal v. Mahesh Chandra : AIR1929Cal22 , if the lessee consents to an attornment to such person to change the title under which he holds or enters into new arrangement for holding under him, it will be equivalent to an eviction and fresh taking. In the case of eviction by title paramount, actual surrender of possession to the intermediate owner is also unnecessary.
'The surrender is an act of law and takes place independently of, and even in spite of the intention of the parties': (Woodfall's Landlord and Tenant, p. 900),
Under Section 108(c), T.P. Act, the lessor shall be deemed to contract with the lessee that he may hold the property without interruption. In Ram Chandra v. Pramatha Nath, A.I.R. (9) 19222 Cal. 237 : (63 I.C. 754), it is held that the landlord's undertaking for quiet enjoyment by the tenant is implied from the relationship of landlord and tenant from disturbance of strangers claiming title paramount. In the present case a third party dispossessed both the lessor and the lessee by purchase in execution of a decree by title paramount, and the landlord cannot obviously claim the rent without restoring possession, since every lease is deemed to convey a covenant for quiet enjoyment. Subsequent to the eviction by title paramount the tenants have, in this case, entered into an arrangement and paid rents which is in the circumstances a prima facie evidence of attornment.
5. In this view of the case, I am of opinion that the title of the plaintiff has been extinguished and there is surrender of the lessee by operation of law and appellant-lessor is not entitled to claim rent subsequent to the period of eviction by title paramount. The decision of the Courts below though based on different reasons must be affirmed.
6. This appeal, therefore, fails and is dismissed.
7. Appeal dismissed.