1. The defendant appellant is the tenant of a flat in a house in the city of Allahabad. The plaintiff-respondent, Shaikh Kallu, instituted a suit against him for ejectment and for recovery of rent for four months and a half from the 1st of March to the 15th of July 1909 on the allegation that the defendant-appellant had been served with a notice to vacate the flat and to pay the rent due from him and that he had failed to vacate the flat or pay the rent. The defendant-appellant resisted the suit on various grounds. He stated in his defence that he had taken the flat on hire from one Ghulam Mustafa, who had died leaving two sons, two daughters and a widow and that the plaintiff-respondent had no right to sue inasmuch as no valid deed of sale had been executed in his favour by Ghulam Mustafa or all the heirs of Ghulam Mustafa. The defendant-appellant also contested the validity of the notice. The first Court found that the house in a part of which the defendant-appellant lived was purchased by Ikramuddin and Shahabuddin, the two sons of Ghulam Mustafa, who, subsequently, sold it to the plaintiff-respondent, but as one of the two sons of Ghulam Mustafa was a minor, Ghulam Mustafa continued to look after the house. In fact he re-built it. In the opinion of the first Court, the real proprietors of the house were Ikramuddin and Shahabuddin and not their father and they had made a valid transfer in favour of the plaintiff-respondent. But as the latter had not given a valid notice according to law to the defendant-appellant to vacate the flat, the claim for ejectment could not be granted and was accordingly dismissed. The claim for arrears of rent was, however, decreed.
2. The defendant-appellant preferred an appeal to the Court of the District Judge. The learned Judge disagreed with the first Court as to the ownership of the house. He came to the conclusion that Ghulam Mustafa was the real owner of the house and that the sale-deed in the names of his two sons was benami. But as the defendant-appellant had, subsequent to the death of Ghulam Mustafa and after the sale to the plaintiff-respondent, paid rent to the latter, the decree in respect of the rent claim was affirmed. The defendant-appellant has preferred a second appeal to this Court and challenges the decree of the learned Judge on several grounds. The main contention for the defendant-appellant is that, in the face of the finding of lower Appellate Court that the vendors of the plaintiff-respondent were not the sole proprietors of the house, the present claim is not maintainable. It is said that Shaikh Kallu has purchased only the rights of the two sons of Ghulam Mustafa and that as the daughters and the widow of the latter have also a share in the house, Shaikh Kallu alone cannot recover rent from the defendant-appellant. The finding of the learned Judge that the defendant-appellant is estopped from disputing the title of the plaintiff-respondent by reason of having paid rent for a few months to him is questioned. It is argued that the mere payment of rent by a tenant does not estop him from challenging the title of the man, who has not created the tenancy or let the tenant into possession but to whom rent has been paid. The defendant-appellant, who is also a learned Vakil of this Court, brought many books, some of which he cited in the course of his long argument in support of his contention that he is not estopped from denying the title of the plaintiff-respondent. The general rule as to estoppel between landlord and tenant has been stated in a Calcutta case thus: 'It is one of the first principles of the law of estoppel, as applied to the relations between landlord and tenant, that the latter is estopped from denying the title of the former. The rule, however, only applies to the title of the landlord, who lets the tenant in. If the tenant did not obtain possession from a person who was only recognised as landlord either by express agreement, or by attornment, or formal acknowledgment by payment of rent, he may always show that his conduct was due to mistake or ignorance of facts relating to the title, misrepresentation or fraud.' Vide Ketu Das v. Surendra Nath Sinha 7 C.W.N. 596. In the present case, the defendant-appellant did not rent the flat from the plaintiff-respondent nor got possession from him, but he acknowledged the title of the latter as landlord by paying him rent for several months. The defendant appellant can challenge the title of the plaintiff-respondent, but only on the ground that the payment of rent by him was due to mistake or ignorance of facts relating to the title of the plaintiff-respondent or misrepresentation or for fraud on the part of the latter. In his written statement, the defendant-appellant denied the title of the plaintiff-respondent to recover the entire rent due but he did not give any explanation of his own conduct as to the payment of rent. He did not say that rent had been paid for several months under mistake, misrepresentation or fraud or ignorance of facts relating to the title of the plaintiff-respondent. In his argument before the lower Appellate Court, the defendant-appellant, on the basis of his own statement as a witness in the case, contended that he had paid rent to the plaintiff-respondent under protest and on the understanding that if a dispute arose in future on the claim of the widow and the daughters of Ghulam Mustafa, the plaintiff-respondent would indemnify the defendant-appellant. But the learned Judge disbelieved that evidence and held that rent had been paid by the defendant-appellant under no such protest or understanding. That is a finding of fact and cannot be questioned in second appeal. The question, therefore, for consideration is whether the defendant-appellant, without pleading and without proving mistake, fraud or misrepresentation in the payment of rent to the plaintiff-respondent, can question the latter's title to recover rent. I do not think he can do so. In a case mentioned in Caspersz at page 92, it was held that where a tenant defendant had paid rent and the payment had gone unexplained, he was precluded from disputing the plaintiff's title to recover rent. It is also contended by the appellant that if a decree is passed against him in the present suit, he will still be liable to the widow and the daughters of Ghulam Mustafa for their share of the rent. The apprehension is, in my opinion, unfounded. After the written statement had been filed, the defendant-appellant asked the Court of first instance to bring the widow and the two daughters of Ghulam Mustafa on the record and they were brought on the record: vide application dated the 9th of February 1910 and the plaint. But it seems that the three ladies were not properly served, and no one put in an appearance for them, nor did the defendant-appellant take any further steps to have them served according to law. On appeal to the District Judge, the defendant-appellant again impleaded them as respondents. They were duly served, but did not appear. All the parties interested were thus before the lower Appellate Court. There is no danger of the defendant-appellant having to pay the ladies' share of the rent twice, The appeal fails and is dismissed with costs.