1. This is an appeal by the plaintiff Fakir Muhammad against the dismissal of his suit for arrears of rent against the defendants under the following circumstance. The three defendants, Bhaggu Khan, Abid Khan and Yakub Khan, are cultivating the plot in suit probably from the original occupancy tenant under a Sub-lease for five years the term of which had not expired. During the pendency of the sub-lease the occupancy tenant gave a lease of the same land to the plaintiff Fakir Muhammad. This lease was contrary to the provisions of Section 35 of the Tenancy Act and it is not now disputed that it was illegal. The plaintiff however, got one of the three sub-tenants, Abid Khan to execute a Kabuliyat in his favour. In this Court he relies on Section 116 of the Evidence Act and urges that Abid Khan having executed a Kabuliyat in his favour is precluded from denying his title and, therefore, even though the suit might be dismissed against the other defendants it should have been decreed against Abid Khan.
2. This argument is good so far as it goes but it does not entitle the appellant to succeed. Where a contract contains mutual obligations, a party who is unable to perform his part of the contract cannot exact performance from the other party. Admitting that a Kabuliyat is sufficient to constitute a contract of tenancy the point was left open in the Full Bench case of Sheo Karan Singh v. Maharaja Parbhu Narain Singh, 2 Ind. Cas. 211 : 31 A. 270 : 6 A.L.J. 167 : 5 M.L.T. 347 the lessor is deemed to contract that he will give the lessee possession as a lessee. This the plaintiff cannot do. Abid Khan remained bound jointly with the defendants to pay rent to the original tenant from whom they were jointly holding. The Kabrrtiyat was a mere paper transaction and intended to strengthen the plaintiff's hand in the dispute regarding the validity of the plaintiff's lease. The estoppel relied on by the plaintiff can only operate against his tenant and a tenancy implies that the tenant has been let into possession of the land by or on behalf of the landlord. Here the defendants have been in possession throughout as sub-tenants of the occupancy tenant. The law is thus stated in Mr. Ameer Ali's Commentary on Section 116 of the Evidence Act.
Where, however, the tenant being already in possession has made an attornment or acknowledgment of the tenancy he may show that he did so through ignorance, mistake or the like.
3. In this view, the mere execution of the Kabuliyat by a person already in possession as tenant of a third party does not operate as an estoppel in favour of the plaintiff.
4. I, therefore dismiss the appeal with costs.