1. This is an application in revision under Section 25, Small Cause Courts Act. The applicant here was the defendant in the Court below. It arises out of a suit for arrears of rent in respect of a bungalow situated within the cantonment area at Meerut. It appears that Pearey Lal, the plaintiff in the suit, is the executor of a will made by one Lala Har Prasad Barati Lal and in that capacity he was in charge of the bungalow in question which formed part of the estate of the testator. It is admitted that he used to give the bungalow out on rent to different tenants and that on 1st November 1937 he admitted the defendant applicant as a tenant of the bungalow. It appears however that the bungalow in question being situated within the cantonment area is held on a tenure called the cantonment tenure under which the Government is authorized to resume possession of the land and also of any house standing thereon by offering proper compensation to the owner. This is an allegation made on behalf of the defendant and also the Government in the present case. It is not for me to decide at this stage whether the position thus taken up by the defendant and the Government is or is not well founded in law. The fact however remains that the defendant; applicant resisted the suit for arrears of rent in respect of a period of four months - February to May 1938 - on the ground that the title of the plaintiff had passed to the Government on 1st February 1938 and hence the plaintiff had no right to realize any rent for the period in suit. It was further pleaded that the defendant had actually paid the rent for the period in suit to the Government. Simultaneously with this plea taken by the defendant in his written statement, an application under Order 1, Rule 10 was made on behalf of the Government praying that the Government should be made a party to the suit and the question of title between the Government and the plaintiff should be decided. The learned Small Cause Court Judge dismissed that application on the ground that in view of Section 116, Evidence Act, the defendant was estopped from pleading that the plaintiff had lost his title and it was unnecessary for the Court to bring the Government on record as a party against the plaintiff's consent. The suit accordingly proceeded to trial and has now been decreed. Hence the present application in revision.
2. The contention on behalf of the applicant is that the lower Court erred in law in holding that Section 116, Evidence Act, prevented the defendant from raising the plea that the plaintiff's title had passed away at some date subsequent to the commencement of the tenancy. On the other hand, it is contended by the opposite party that the defendant could not raise that plea while the tenancy continued and before he had openly surrendered possession to the plaintiff. On behalf of the opposite party reliance was placed principally upon a decision of their Lordships of the Privy Council in Bilas Kunwar v. Des Raj Ranjit Singh (1915) 2 A.I.R. P.C. 96. The passage upon which stress has been laid by the learned Counsel for the opposite party runs as follows:
The other point in the case is one of estoppel. The property was let by the plaintiff to the defendant Ranjit Singh; he was let into possession by the plaintiff's gardener Bhairon on her behalf and by her direction and he regularly paid rent to her and applied to her to do all the necessary repairs; he has never given up possession to her although he duly received notice to quit and he has denied her title. Section 116, Evidence Act, is perfectly dear on the point and 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.
3. It is contended that the principle thus laid down by their Lordships of the Privy Council applies not only to a case where the tenant denies the title of the landlord at the commencement of the tenancy but also where he denies the landlord's title at any time during the continuance of the tenancy though that denial may refer to certain facts subsequent to the commencement of the tenancy. It is to be noted that in the case before their Lordships the tenant's denial of his landlord's title was not related to any facts which had happened subsequent to the commencement of the tenancy. In fact it was contended by the tenant that his landlord had no title at all to the house in dispute. I am unable to accept the argument of the learned Counsel that the principle laid down by their Lordships of the Privy Council is applicable also to a denial by the tenant of his land, lord's title where that denial rests upon certain facts which happen subsequent to the commencement of the tenancy. I find no warrant for that in the language of Section 116, Evidence Act, which runs as follows:
No tenant of immovable 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....
4. The words to be particularly noted in the Section are 'at the beginning of the tenancy' and I see no justification for holding that even where the tenant's denial is related to facts which have happened subsequent to the commencement of the tenancy still the bar of estoppel comes into operation. The Privy Council case relied upon by learned Counsel for the opposite party was considered by a Division Bench of this Court in Ganpat Rai v. Multan (1916) 3 A.I.R. All. 121. The learned Judges of the Bench in spite of having the decisions of their Lordships of the Privy Council clearly before them proceeded to observe as follows:
It seems to us quite clear that once a parson is a tenant of another person he cannot be allowed to deny that the person whose tenant be was was the owner when the tenancy was created. He can no doubt admit that his landlord was the owner at the commencement of the tenancy and allege and prove by evidence that the landlord's estate has subsequently come to an end. But he cannot deny that at the commencement of the tenancy the person with whom he entered into contract was the owner of the property. The words 'at the beginning of the tenancy' are expressly inserted in the Section to show that the tenant is not prevented from showing that after the tenancy commenced the estate of the landlord devolved on some other person.
5. The same view of the true interpretation of Section 116, Evidence Act, was taken by a Division Bench of this Court in the earlier case in Nakchhedi Bhagat v. Nakchhedi Misir (1896) 18 All. 329. That was a case between a mortgagor and a mortgagee but the principle laid down there is clearly applicable to a case between a landlord and a tenant. The principle has been laid down in the following terms:
As a general rule neither a mortgagee nor a tenant can dispute his mortgagor's or landlord's title unless that title has determined. If the title of the mortgagor in the one case or of the landlord in the other has determined the mortgagee or the tenant can show that the title under which he entered has determined in fact and in law.
6. In the end I may point out that this view has been clearly upheld by their Lordahip3 of the Privy Council in the recent case in Krishna Prasad Lal Singh Seo v. Baraboni Coal Concern Ltd. , in which they have clearly explained the true meaning of Section 116, Evidence Act, and the extent of the rule of estoppel contained therein. At the end their Lordships observe:.nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end.
7. I therefore hold that it was open in the present case to the defendant applicant to plead that the title of the plaintiff had passed to the Government so that the plaintiff had no right to realize any rent for the period in suit. The learned Small Cause Court Judge was in my opinion wrong in rejecting the application made on behalf of the Government to be made a party in the case. It was obviously desirable and indeed proper and necessary that the question of title should have been decided after Government had been made a party to the suit, especially in view of the fact that the defendant had further pleaded that he had actually paid rent for the period of suit to Government. The result therefore is that I allow this application in revision, and setting aside the decree passed by the learned Small Cause Court Judge direct that the case shall go back to him for being disposed of in accordance with law after the Government has been made a party to the proceeding. If it is found that in consequence of an issue of title having been raised the Court has no jurisdiction it will proceed accordingly. The applicant shall have his costs in this Court from the opposite party.