1. This second appeal raises two questions of law. While one of them relates to the maintainability of this appeal the other turns upon the true interpretation of Section 116 of the Indian Evidence Act, As on the latter question, some conflict of authority is said to exist in the decisions in Venkatanarasimha Charyulu v. Gangaraju, 1941-1 Mad LJ 554 : (AIR 1941 Mad 607) (A), and Kuppukonan v. Thirugnana Sammandam, ILR 31 Mad 461 (B), which is followed in Muthusamy Aiyar v. Solai Konan, 26 Mad LJ 597 : (AIR 1915 Mad 48 (1) (C), this appeal has been on reference placed before us for disposal.
2. To appreciate the points involved, a brief statement of facts is necessary. Admittedly, the appellant took on lease the suit land measuring Ac. 12.00 from 1st respondent for one year on 1-8-1950 Ex. A-1 evidencing this transaction contains a clear admission that the lessor had full title to and was in possession and enjoyment of the land in question. It contains a stipulation to the effect that respondent No. 1 may take back possession of the land without need for a registered notice to the lessee at the end of the lease period i.e., 31-5-1961. There are further terms as to cultivation and payment of makta etc., which need not be detailed here.
As the defendant had cultivated dalwa on seedbed land in violation of the terms of the lease, plaintiff-1st respondent's case is that he leased out the land for the succeeding year to 2nd plaintiff (2nd respondent) and by a notice in writing demanded buck from the defendant possession of the land and also the dalwa makta (for the year) which was yet unpaid. The respondent then paid about half of the dalwa makta but denied in his reply notice the title of the plaintiff to the extent of half the suit land. This necessitated an action in ejectment and for recovery of arrears of makta.
The defendant in his defence to this suit set up right, title and interest of one Krishnamurthy, the paternal uncle of the plaintiff in the eastern half of the suit land and averred that the plaintiff had leased out the land not only in his own right but also on behalf of his paternal uncle, that on demand of the latter he, the defendant, paid half the makta of dalwa to him though prior to that he had paid the sarva makta to the plaintiff alone, that the payment to Krishnamurthy operated as full discharge of his liability, that the plaintiff and Krishnamurthy had on 2-5-1951 before the actual expiry of the previous lease period, leased out to him separately their specified half shares of the land for a further period of one year, that the lease in favour of 2nd plaintiff is a farce and that the plaintiff is entitled to no relief.
The plaintiff pleaded estoppel in the defence set up and denied that he had leased out the land for subsequent year to the defendant. The trial Judge on enquiry found that Krishnamurthy on partition in 1945 got only Ac. 3.00 of land but even that was allowed to be continued in possession of the plaintiff for a period of 12 years in discharge of his debt with the result that the plaintiff continued to be in exclusive possession of the suit land to the knowledge of the defendant and that he leased out the same to the defendant as before in his own right and not on behalf of Krishnamurthy to any extent and that the defendant's own averments in the lease deed and other documents belie his story.
He also held that the plea of the defendant was barred by the principle embodied in Section 116 of the Evidence Act. He further round that the contention that the plaintiff had executed lease of his share in the land in favour of the defendant for the subsequent year is untrue and that the payment, if any, to Krishnamurthy not being made at the instance of the plaintiff did not discharge the defendant's liability for the dalwa makta due from him. Thus he repelled the contentions of the defendant and granted a decree for the arrears of rent and also possession of Ac. 6.00 land which was still in possession of the defendant.
After this decree the defendant gave back possession of the land but preferred an appeal against the decree for arrears of rent. The learned Subordinate Judge dismissed the appeal on the ground that Section 116 of the Indian Evidence Act did apply to the case, that it was not open for the defendant to have denied the title in the suit unless and until he had surrendered his possession, that it was therefore not necessary for the trial Court to enquire into and decide the question of title and further that there was no discharge of liability by payment to Krishnamurthy.
3. With such concurrent judgments against him, tbe defendant has come up in Second Appeal to this Court. A preliminary objection has however been taken by the respondent as to the maintainability of this appeal, but this should not detain us longer. No doubt, the value of this appeal is less than its. 500/- and the appeal before us now is only against the arrears of rent but it is the nature of the suit and not of appeal that is material for purposes of Section 102, C. P. C. It is the character of the suit as it was originally framed and presented to the Court and not which it may assume in the course of or after the trial by virtue of the findings of the Court or in the appeal that may eventually be brought that determines the nature of the suit for purposes of Section 102, C.P.C.
We see that neither the suit nor the grounds taken in appeal fall within the prohibited sphere of Sections 100 - 102 C.P.C. The plea as to Lion-maintainability is therefore wholly devoid of force.
It is also argued that since the decree for arrears of rent appealed against is based on the same right as that for possession and that since the defendant did not appeal against the decree for possession in the lower appellate Court, but on the contrary delivered possession. of the property, thereby admitting the right of the plaintiff, he cannot now bring a second appeal to this Court. This plea is not well-founded. The Code is exhaustive of the rights of Second Appeal and unless a particular case falls within the prohibited domain, the right will remain unaffected.
Under Section 100 C.P.C. an appeal shall lie to this Court from every decree passed by the Subordinate Court in appeal provided the grounds all or any stated in that section exist and this jurisdiction of this Court knows no limitations save those as have been in terms imposed by the Code or by any law for the time being in force. In the absence of such limitations, it follows that this appeal is quite competent.
It is also clear that execution of a decree in part or in full, whether through Court or otherwise, does not affect the right of appeal nor the fact that only a separable portion of the decree was appealed against in the lower appellate Court can be a bar to an appeal to this Court. Inasmuch as this is an appeal against the decree passed by the lower appellate Court, it is competent under Section 100 C.P.C.
4. Now, we turn to the second question. On the facts found by the Courts below it cannot be assumed for a moment that the lease deed was executed at the instance or on behalf of or for the benefit of Krishnamurthy also. Clear recitals of the lease deed as referred to above are wholly against such contention.
The trial Court has found on the evidence adduced that the plaintiff-respondent had a right to and was in possession and enjoyment of the property, that he leased out the property to the defendant in his own right and that his exclusive right at the time bad been admitted also by the defendant who was let into possession by him. The lower appellate Court's conclusions in paragraph 8 of its judgments are almost to the same effect. The question for consideration is, whether under such circumstances the plaintiff is entitled to the protection of Section 116 of the Evidence Act so as to preclude the defendant from questioning his title at the time of the lease. Section 116 of the Indian Evidence Act reads thus : --
'No tenant of immoveable property, or person claiming through such tenant, 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 immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof Shall be permitted to deny that such person had a title to such possession at the time when such license was given.'
This provision embodies the principle of estoppel arising from the contract of tenancy. It is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any prebable defect in the title of his landlord.
Of course, if he were to deny his title, he could do so after he gives up the possession having thus restored status quo ante. This doctrine is directed mainly against frauds. The section in clear terms provides that the tenant during the continuance of his tenancy is precluded from denying that his landlord had no title at the time of creation of tenancy.
So also a person who got into possession under the title or permission of the person in possession cannot be permitted to say that at the time he was let into possession the person permitting him had no title to such possession. It may be noticed that for the application of this principle, all that is necessary to be established is that there was a contract of tenancy and that the tenant took possession of the land under the title or with the permission of the landlord or person then in possession. Possession and permission being established estoppel would bind the tenant during the continuance of the tenancy and until he does not surrender his possession. The effect of estoppel will be that he cannot deny the title at the time of creation of tenancy of his landlord or the right of the occupant who gave him possession. Evidently both the landlord and the persons in possession at the time of the contract are within the protection of this provision.
A person in possession within the meaning of the section need not be a full owner; he may be a mortgagee, a lessee or any other person having right to or is in actual possession. However defective the title of such a person or even the landlord may be at that time, the person inducted under the term of the contract cannot he permitted to rely on this defect to his advantage or to perpetuate his possession or to act in detriment to the landlord's right.
It is argued that the plaintiff being not the owner of the entire land but only about half of it he will be deemed to be a benamidar in relation to the other half and such a benamidar is not within the protection of Section 116. This contention is untenable both on the facts and on law. Admittedly, Krisnamurthy was not a contracting party. There is nothing to suggest that the contract was entered into at the instance or for the benefit of Krishnamurthy so that it may be argued even for a moment that the plaintiff was merely a name-lender and the contract was in fact on behalf of Krishnamurthy or for his benefit to any extent.
On the contrary, it has been found that Krishnamurthy was not in actual possession of any portion of the land and the plaintiff was in occupation of the entire land. The recitals of the lease deed clearly show that the appellant had at the time of the tenancy full title to and was in actual possession and enjoyment of the land. The case therefore falls within both the clauses of Section 116 inasmuch as the plaintiff is both a contracting landlord and also the person in possession who has inducted the defendant into possession.
Relying on ILR 31 Mad 461 (B) and 26 Mad LJ 597 : (AIR 1915 Mad 48 (1)) (C), the learned counsel has argued that the, plaintiff should be regarded as the benamidar and the payment of makta to Krishnamurthy should operate as discharge of his liability. We do not think that the cases cited have any application to the present case.
In ILR 31 Mad 461 (B), the husband of the landlord had entered into a contract not in his own eight but on behalf of his wife which he admitted in the case. In 26 Mad LJ 597 : (AIR 1915 Mad 48 (1)) (C), it was found that the agreement was entered into at the instance or on behalf of Kamakshamma.
Thus both are cases where the contracts have been entered into on behalf of the real owners though under a borrowed name. In such cases it was held the teal landlords who are in law the contracting parties are within the protection of Section 116. ILR 31 Mad 461 (B), has been discussed and distinguished in 1941-1 Mad LJ 554 : (AIR 1941 Mad 607) (A). The learned Judge in that case at page 556 made the following observations : --
' ..... But it seems to me that a distinction must be made between a case where a person claiming to be the owner of a certain property leases It to a tenant but takes the lease deed in the name of his benamidar and the case where a benamidar happening to be in possession of the property on behalf of the real owner grants a lease of it without disclosing his benami character. In the former case it may be correct to say that the tenant's estoppel operates in favour of the real lessor and not the benamidar who was not a party to the transaction, The decision in ILR 31 Mad 461 (B) was apparently a case of that kind. But in the second case referred to above, the benamidar clearly comes within the protection of Section 116, as he was the person who in fact leased the property and placed the tenant in possession. If the proposition laid down in ILR 31 Mad 461 (B), was intended to apply also to this class of cases, I would respectfully dissent from it.'
With respect, these observations of the learned Judge enunciate the correct principle of law as embodied in Section 116 and we find ourselves in full agreement with him. Thus on facts as detailed above, we are not prepared to hold that the plaintiff was a mere benamidar. In law even assuming that Krishnamurthy had title to any extent in the suit property, the contract being one between the plaintiff and the defendant and actual possession being given by the plaintiff to the defendant in his own right, the plaintiff and not Krishnamurthy must be regarded as the landlord for purposes of Section 116 of the Evidence Act.
It is then argued that the protection, if any, under Section 116 has come to an end by reason of the registered notice to quit given to the defendant; but, as we have already observed above, the bar of estoppel continues till the defendant has given up his possession for the mischief contemplated by Section 118 cannot he avoided until the tenant actually goes out of occupation and there is a great preponderance of judicial opinion in favour of this view.
It was also argued that the plaintiff must be regarded as the agent of Krishnamurthy so far as his share in the land is concerned and that since the principle applicable to contracts made by an undisclosed agent applies also to contracts of tenancy, the payment to such a principal must discharge the liability of the lessee also. Apart from the fact that such an argument is inconsistent with the rule of estoppel laid down in Section 116 of the Evidence Act as has also been observed in 1941-1 Mad LJ 554 : (AIR 1941 Mad 607) (A), there is no foundation for the very contention that the plaintiff acted as an agent of Krishnamurthy. In our opinion, there are no meritsIn this appeal. It is therefore dismissed with costs.