1. The suit out of which this appeal arises was one for ejectment of a tenant from a house and for arrears of rent. The house belonged to two brothers Debi Prasad and Lalta Prasad. In execution of a decree obtained by one Incha Ram against Debi Prasad, he caused the whole bouse to be attached as the property of Debi Prasad. During the pendency of the attachment a suit was brought by Lalta Prasad for partition of the house, and he made Debi Prasad and Incha Ram parties to that suit. He obtained a preliminary decree from the High Court for partition subject to certain conditions, but before the decree of the High Court was made the property was sold by auction and was purchased by Ram Chand, the predecessor in title of the plaintiffs. 'We may mention that Mathra Prasad, appellant, was a tenant in the house having been put into it by Debi Prasad and Lalta Prasad. After the auction sale, however, on the 4th of May 1914 Mathra Prasad executed a sarkhat (that is, an agreement to hold the house as tenant) in favour of Bam Chand, and in that document he distinctly stated that he took the house from Ram Chand on a rent of Rs. 3 per mensem, and that if Ram Chand wanted to have the house vacated, he (Mathra Prased) would vacate it on receipt of a month's notice. The present suit was brought to eject Mathra Prasad from the house, after serving him with the requisite notice, and for arrears of rent. He resisted the suit on the ground that the house belonged not only to Debi Prasad in whose shoes Ram Chand stood but also to Lalta Prasad and that, therefore, the plaintiffs were not entitled to eject him from the house. This contention was overruled by the Courts below and the learned Judge of this Court has upheld the decree of the lower Appellate Court.
2. We think that the plaintiffs' claim has been rightly decreed, Mathra Prasad having executed a sarkhat in favour of the plaintiffs' predecessor Ram Chand and having agreed to hold the house from him and to vacate it on receipt of notice from him to do so, he is estopped from denying the plaintiffs' title to get the house vacated. This case seems to be similar to that of a tenant who has taken a lease from one of two co owners of certain property and agreed to surrender the property if called upon to do so by the person who granted the lease. In such a case it is not open to the tenant to dispute his land lord's title. We were referred to the case of Lal Mahomed v. Kallanus 11 C. 519 ; 5 Ind. Dec. (N.S.) 1104. The circumstances of that case were different. Furthermore, it was considered by the Calcutta High Court in the later case of Kelu Das v. Surendra Nath Sinha (7 C.W.N. 596) and the view taken in it does not seem to have been accepted. In our opinion apart from the fact that there was nothing on the record to show that the partition decree made in favour of Lalta Prasad had become final, the defendant is precluded now from disputing the plaintiff's title. We dismiss the appeal with costs.