S.K. Ray, J.
1. This second appeal arises out of a suit for eviction of defendants 1 and 2 from the suit house where they had been inducted as tenants for realisation of arrears of rent amounting to Rs. 240/- for the period of 24-6-1963 till 26-8-1964 for declaration of plaintiff's right, title and interest in respect thereof and for a further declaration that the defendants 1 and 2 have acquired no interest in the suit house under a registered sale deed executed in their favour by defendant 3 and any interest, if any acquired thereunder is ineffective against the plaintiff's interest.
2. The land on which the suit house stands belongs to P. W. D. Defendants 3 and 4 Who are brothers obtained lease of the land and constructed the suit house thereon and remained in possession thereof as owners. Subsequently defendant No. 3 alienated his moiety interest in the suit house to defendant 4, on 5-7-1959, who, in consequence thereof, became the full owner thereof. The defendant 4 in his turn sold the suit house to defendant 5. On 14-7-1959, and the latter sold it to the plaintiff on 9-2-1962, Thereafter on 24-5-1962 the plaintiff inducted defendants 1 and 2 as tenants in respect of the two rooms of the suit house. Defendants 1 and 2, in evidence of such tenancy, executed a rent deed which has been proved in this case as Ex. 5. Defendant 1 paid rent till 25-5-1963 and thereafter defaulted. Plaintiff served a registered notice for arrears of rent and for relinquishing possession, but it was not complied with. Hence the present suit. This, in short, is the plaintiff's case.
3. Of all the defendants, only defendants 1 and 2 contested the suit. They denied the relationship of the landlord and tenant between them and the plaintiff and alleged that Ex. 5 is forged document and has not been executed by the defendant 1. They contend that the house belonged to defendant 3 and defendant 1 was a tenant under him in respect thereof. During the continuance of his tenancy, defendant 1 acquired paramount title to the suit house by purchasing it from defendant 3 under a registered sale deed, Ex. E, for a consideration of Rs. 200/-. Another defence plea was that assuming everything in favour of the plaintiff his suit for eviction must fail due to want of notice under Section 106. T. P. Act terminating the tenancy.
4. This litigation had a chequered career. First, the trial Court decreed the suit on a finding that there was relationship of landlord and tenant between the plaintiff and defendants 1 and 2. He arrived at this finding primarily on the basis of Ex. 5, the rent deed, which was found to be genuine document duly executed by defendant 1. He also found that the plaintiff having purchased the suit house earlier than the alleged purchase of defendants 1 and 2 had acquired indefeasible title to it. He was further of opinion that since the relationship of landlord and tenant was denied by defendants 1 and 2 they forfeited their right of notice of termination of tenancy. Ultimately, he declared plaintiff's title and possession of the suit house and directed defendants to pay arrears of house rent and deliver vacant possession.
5. On appeal by the defendants, the lower appellate Court held that the defendants, by their act of denial of the title of the plaintiff incurred forfeiture of their tenancy under Section 111, Clause G (2) of the T. P. Act and disentitled themselves to any statutory notice to quit. He negatived the finding of title in favour of the plaintiff because his purchase was not a registered one.but nevertheless he said that if the defendants are Droved to have been inducted into the suit house by the plaintiff they would be estopped from challenging the plaintiff's title as landlord, however, defective it may be under Section 116 of Evidence Act. Coming to the question of induction of the defendants as tenants he said that since Ex. 5 is the foundation of such a claim and since that document has been impeached by the defendants as a forged and fabricated one, it should be sent to an Expert for his opinion. Accordingly he remanded the suit to the trial Court for dealing afresh with the question of induction of defendants 1 and 2 as tenants by the plaintiff after obtaining the opinion of a handwriting Expert on the genuineness or otherwise of Ex. 5. He however, made it clear that his findings and conclusions on other points must stand.
6. After remand. Ex. 5 was examined by the handwriting expert, who submitted his report. The trial Court dismissed the suit as he was of opinion that Ex. 5 was not genuine document and had not been executed by defendants 1 and 2 and on that ground the plaintiff was held to have failed to prove the relationship of landlord and tenant between him and the defendants 1 and 2. He also negatived the plaintiff's case of acquisition of title over the disputed house'.
7. The plaintiff appealed. The lower appellate Court held that Ex. 5 is genuine document and executed by defendant 1 and that the plaintiff was able to prove the relationship of landlord and tenant between him and defendants 1 and 2. He therefore, allowed the appeal and granted a decree for realisation of arrears of rent and future rent at the rate of Rs. 15/- Per month till he got possession of the suit house. The defendants were directed to vacate the house within a month from the date of the judgment.
8. Against this decision of the lower appellate Court the present second appeal has been preferred by defendants 1 and 2.
9. It is not disputed in this Second Appeal that the tenancy was created in the year 1962 (25-4-19621 when the plaintiff inducted the defendants 1 and 2 as tenants into the suit house. The finding that Ex. 5 is a genuine document and was duly executed by defendant 1 is also no longer open to challenge at this stage. Defendants-appellants have proved that they purchased the suit house by registered sale deed dated 4-9-1963 from defendant 3 and it is not disputed by the plaintiff that defendant 3 was originally a joint owner of the suit house along with defendant 4 possessing -/8/- interest therein. In the background of these facts it is contended that the doctrine of estoppel envisaged in Section 116 of the Evidence Act would no longer operate and the tenants having acquired paramount title to the suit house during the subsistence of their tenancy it can be set up in defence against eviction sought for by the plaintiff,
10. The law is well settled that a tenant, who has been let into possession cannot deny his landlord's title at the commencement of tenancy, however defective it may be so long as he has not openly restored possession by surrender to his landlord. (See Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96; Atyam Veeraju v. Pechetti Venkatanna, AIR 1966 SC 629). Section 116 of the Evidence Act embodies this doctrine of estoppel but it is not exhaustive of all cases of estoppel between landlord and tenant. This rule of estoppel applies against lessees assignee of term, sublessees or licensees, only in relation to the title of the landlord who let the tenant in as distinct from the person claiming to be reversioner. There are however exceptions to this rule of estoppel. Some of them have been noticed by the Privy Council in the case of Kurnar Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern, Ltd.. AIR 1937 PC 251. The relevant passage dealing with the scope of Section 116 of the Evidence Act and exceptions thereto may now be extracted.
'The section does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which 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 he 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 sub-lessee or licensee. What all such persons are precluded from denying 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 derivation title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel e. g. by attornment, ecceptance 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'.
The same view has been acknowledged and followed in the case of M. Hamid Ahmed v. Guhamani Behera. 35 Cut LT 580, as will appear from the following passage quoted therefrom:
'Neither Section 116 of the Evidence Act nor any analogous principle of estop-pel stands in the way of the tenant to take up the plea that subsequent to the commencement of the tenancy there has been extinction of the title of the landlord.
The expression 'during the continuance of the tenancy' in pith and substance means, so long as the tenant has not surrendered possession of the tenancy into which he was inducted. Doubtless that is the construction consistently given to that expression. But such a theory has no application to a case where there has been extinction of the title of the landlord subsequent to the commencement of the tenancy. The proposition laid down by the Privy Council directly militates against such a concept. If the tenant must surrender possession before resorting to the plea of extinction of title subsequent to the commencement of the tenancy there would be no meaning for their Lordships to say that the theory of estoppel has no application to such case'.
Reliance was placed in this connection on Privy Council decision referred to above and also on an earlier Division Bench decision of this Court in the case of Udayapratap Singh v. Krushna Padhano, AIR 1952 Orissa 95.
In the case of Dah Chand v. Dadam-chand. AIR 1963 Raj 209, the exception to the rule in Section 116, Evidence Act has also been noticed as will appear from the following passage:
'Section 116 of the Evidence Act, 1872, prohibits the tenant of immovable property from, denying the title of his landlord to such immovable property at the beginning of the tenancy. That section imposes no bar on tenant where he seeks to question the title of his landlord on the ground that after the tenancy had begun, it had come to an end on account of certain events which had happened subsequent to the establishment of the tenancy. It must follow as a corollary that where the tenant does succeed in showing thai the landlord's title has in fact come to an end the plaintiff's suit for recovery of rent based on the relationship of landlord and tenant is bound to be dismissed'.
11. Thus, it is clear from the aforesaid authorities that a tenant may resist eviction sought to be enforced by his landlord in a suit instituted for the purpose by raising a plea that his landlord's title has come to an end or been extinguished subsequent to the commencement of his tenancy, notwithstanding Section 116, Evidence Act. The extinction of the landlord's title may come about either by voluntary or involuntary transfer of the title of the landlord or by operation of any law for the time being in force. It is obvious that there will be no difference in the legal effect of the extinguishment of the landlord's title even though such title vests in the tenant by the very mode which puts an end to it in the landlord.
12. In the instant case, the plaintiff has brought into issue, by his pleading, not only his landlord's title to evict his tenant but also the question of paramount title to the suit house because he has also sought for a declaration of his right, title and interest in the suit house. All necessary parties for adjudication of paramount title to the suit house are on record. The defendants-appellants plead acquisition of paramount title to the suit house subsequent to their alleged tenancy, which includes the plea of extinguishment of plaintiff's title since the commencement of their tenancy and such a plea comes within the exception to rule of estoppel in Section 116 of the Evidence Act. That apart the question of paramount title having been specifically put in issue, it must be determined in this suit and the defendants-appellants should not be driven to a separate suit. Further, it will be found that the plaintiff claims arrears of rent for the period 24-6-1963 to 26-8-1964 and the appellant's case is that they purchased the suit house on 4-9-1963. So the plea of extinction of landlord's title cannot be available to them before 4-9-1963. They would therefore, be liable to pay rent till 4-9-1963 despite their plea of extinction of landlord's title taken in this suit, because the plaintiff obviously, cannot be debarred from recovering arrears of rent from 24-6-1963 to 4-9-1963 a period anterior to the alleged extinguishment of his title, even though the defendants establish it. His claim for arrears of rent subsequent to that period will depend upon whether the plea of exinction of title is established or not.
13. In the circumstances, I would set aside the decision of the lower appellate Court and direct him to rehear the appeal and dispose of all issues specially the issue regarding title to the property which involves the plea of extinction of landlord's title subsequent to the commencement of tenancy. It is, however, made clear that his finding on other issues already arrived at must stand, namely that it must be accepted that Ex. 5 is a genuine document and has been duly executed by defendant No. 1 and that defendants 1 and 2 were inducted as tenants into the suit house by the plaintiff on 25-4-1962. The lower appellate Court is, therefore, to dispose of the appeal, on remand, in accordance with law and the observations made above which indicate the residual scope of the appeal and the fresh issues which fall to be considered.
14. The appeal is allowed and remanded. Costs will abide the result.