1. This appeal under the Letters Patent arises out of a judgment delivered by Singh J. in Second Appeal No. 636 of 1964 dated August 12, 1968 whereby a suit for possession of an abadi site situate in village Durg was dismissed.
2. The material facts, which are no longer in dispute, are these, Ghanshyamsingh (plaintiff 3), who was the proprietor of village Durg, leased out to the defendants, by a document Ex. P-15 dated July 10, 1947, the disputed abadi site for building their house in return for Rs 2.50 as monthly rent on condition that they would deliver vacant possession of the site on fifteen days notice. Thereupon, the defendants built on the site a house which they continue to occupy. Subsequently, by a registered document Exhibit P-16 dated May 24, 1948, Ghanshyamsingh transferred to his wife Smt. Jaidevi, without any consideration, all the house sites in the abadi of village Durg on terms and conditions therein stated. On the death of Smt. Jaidevi on March 7, 1950, Raghvendra Singh and Jitendrasingh (plaintiffs 1 and 2) succeeded to her interest by virtue of a will made by her. After the requisite notice, they brought the suit, out of which this appeal arises, for vacant possession of the abadi site. The Court of first instance dismissed the suit on the view that the document dated May 24, 1948 did not affect the rights created by the lease Ex. P-15 dated July 10, 1947. The lower appeal Court found that the defendants had executed the aforesaid lease and Ghanshyamsingh had executed the document dated May 24, 1948 by which he transferred all the house sites of village Durg to his wife Smt. Jaidevi. According to the lower appeal Court, the defendants became tenants of the transferee by operation of law as well as by subsequently paving rent to her. On the basis of these conclusions, the claim for possession was decreed. The learned Single Judge took a different view on the ground that Smt. Jaidevi was, by virtue of the document Ex. P-16 dated May 24, 1948, a transferee of proprietary rights in respect of the abadi land of village Durg and that, on the vesting of the proprietary rights in the State, she or her successors in interest ceased to be entitled to recover possession of any abadi site of the village in occupation of another person.
3. Having heard the counsel, we have reached the conclusion that, on the facts found, the decision of the learned Single Judge should be affirmed, though for different reasons. It is true that in the case of Mahadeo v. State of Bombay, AIR 1959 SC 735, their Lordships observed that there was a transfer of items of proprietary rights when agreements like those reproduced in paragraph 12 of the judgment in that case were made by proprietors in regard to Tendu leaves But their Lordships also observed in paragraph 29 of the judgment as follows:
'Even assuming that the documents in question do not amount to grant of any proprietary right by the proprietors to the petitioners, the latter can have only the benefit of their respective contracts or licenses. In either case, the State has not, by the Act, acquired or taken possession of such contracts or licenses and consequently, there has been no infringement of the petitioners' fundamental right which alone can support a petition under Article 32 of the Constitution.'
It is not necessary for us to go to the extent of holding that the transferee of an abadi site from the proprietor is a transferee of a proprietary right. It would, we think, be enough to consider this case in the light of the provisions of Clause (a) of Section 4 (1) and Clause (a) of Section 5 of the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951, hereinafter called for brevity the Abolition Act-Under Clause (a) of Section 4 (1) of the Abolition Act, all abadi sites 'save as otherwise provided' in that Act vest in the State. The saving provision is contained in Clause (a) of Section 5 of this Act which reads:
'(a) all open enclosures used for agricultural or domestic purposes and in continuous possession for twelve years immediately before 1948-49; all open house-sites purchased for consideration; all buildings; places of worship, wells situated in and trees standing on lands included in such enclosures or house-sites or land appertaining to such buildings or places of ownership within the limits of a village-site belonging to or held by the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or other person, as the case may be; and the land thereof with the areas appurtenant thereto shall be settled with him by the State Government on such terms and conditions as it may determine.'
The plaintiffs did not aver that the site of which they claimed vacant possession was used by them for agricultural or domestic purposes and was in the continuous possession of themselves and their predecessor for twelve years immediately before 1948-49. It was not disputed that the site was not purchased by Smt. Jaidevi for consideration. Therefore, the plaintiffs are not entitled to the benefit of this saving provision even as 'any other person.' On the other hand, the building standing on the abadi site belongs to the defendants and, under this Clause, they are entitled to the building and the land appertaining to it.
4. The learned counsel for the plaintiffs, however, relied upon the lower appeal Court's conclusion that the defendants had paid rent of the plot to Smt. Jaidevi on August 9, 1948 as evidenced by the counterfoil Ex. P-17 and were, therefore, estopped from denying her title by force of the provisions of Section 116 of the Evidence Act. Having carefully considered the arguments, we are of the view that Section 116 ibid does not help the plaintiffs to sustain their claim. Referring to that section, the Judicial Committee observed in Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd., AIR 1937 PC 251 at pp. 254-255, as follows :--
'The section does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant. It deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation. Whether during the currency of a term the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term is estopped from disputing the claim which he has once admitted are important questions, but they are instances of cases which are outside Section 116 altogether: and it may well be that as in English law the estoppel in such cases proceeds upon somewhat different grounds and is not wholly identical in character and in completeness with the case covered by the section. The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise--which is the case before the Board on this appeal -- the section applies against the lessee, any assignee of the term and any sublessee or licensee. What all such persons are precluded from deriving is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there mav be other grounds of estoppel, e. g., by attornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who 'let the tenant in' as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end.'
Here there is no question of denying the title of Ghanshyamsingh on the date when he created the lease, namely, July 10, 1947. But in view of the transfer made by him in favour of his wife Smt. Jaidevi, his capacity to make that transfer could be questioned by the lessee and Section 116 would not prevent him from taking up that position. So, Spencer Bower stated in his treatise on Estoppel by Representation:
'Where a tenant, by such acts and conduct as have been already indicated, has conclusively acknowledged his landlord's title, he is estopped from afterwards disputing, as against such landlord, the subsistence and validity of an estate in him sufficient to warrant the demise. But this is the limit of his disability; he is not further or otherwise estopped, because it is only a denial so limited which can result in that necessary contradiction or inconsistency between the original and the new position which, as has been already explained, is a condition of any valid estoppel by representation. Thus a tenant can dispute any estate, title, or interest alleged by the landlord to be vested in him, if, in so doing, he does not expressly or impliedly deny that the landlord has an estate, title, or interest of some kind which is adequate to justify the grant of the lease.'
(1923 Edition, page 254-5),
In Halsbury's Laws of England, Vol. 15, paragraph 459, the law is thus stated:
'In the case of assignee of the lessor, though he is to all intents and purposes in the same situation as the lessor and takes the benefit of, and is bound by, a lease by estoppel, the lessee is not estopped from showing that the lessor had no such title as he could pass to the assignee, or that the person claiming to be the assignee is not in fact the true assignee.'
In this case, in the view we are taking, we are relieved of the obligation of dealing with that aspect of the question and what we have to consider is the case of estoppel resulting from the fact found by the first appeal Court that the defendants had on August 19, 1948 paid rent to Smt. Jaidevi and had thereby attorned to her- It should be stated here that it was not found by that Court that any rent was paid to her on any other occasion. When a sitting tenant attorns to the transferees by paying rent to them, there does arise an estoppel, though it might proceed upon a different ground. So, in AIR 1937 PC 251 (supra), the Judicial Committee observed:
'Whether during the currency of a term the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term Is estopped from disputing the claim which he has once admitted are important questions, but they are instances of cases which are outside Section 116 altogether; and It may well be that as in English law the estoppel in such cases proceeds upon somewhat different grounds and is not wholly identical in character and in completeness with the case covered by the section.'
But, even if we assume that the principle of Section 116 of the Act is applicable to such a case also, the attornment in this case was made on August 9, 1948 and it was thereafter that the abadi sites vested In the State by virtue of the provisions of the Abolition Act which came into force on March 31, 1951. As pointed out by the Judicial Committee in AIR 1937 PC 251 (supra), the principle of Section 116 does not apply to prevent a tenant from pleading that the title of the original lessor has since come to an end. In this view, therefore, the conclusion reached by the learned Single Judge must be affirmed.
5. The appeal fails and is dismissed. Costs through shall follow that event. Hearing fee Rs. 100/-.