1. This is a plaintiffs' appeal for recovery of Mustajari rent to the extent of Rs. 3700 and odd in respect of a lease commencing on the 1st of July 1935 and ending on the 30th June 1936. The plaintiff, when he granted the lease, was a mortgagee. The lands appertained to an estate jn the district of Ganjam known as Sanokimedi Estate. Succession to this estate has been the subject of continuous and protracted litigation and which, if I can say so, has not yet been at its end. As the question of title to grant the lease has been raised by the tenants (respondents) who resisted the validity of the plaintiff's claim, certain facts, in relation to the succession of the estate and the litigation about that, have to be mentioned. The village, in respect of which Mustajari rent has been claimed admittedly lies within the ambits of that estate. One Braja Kishore was the admitted holder of this estate. He died in 1906. He was succeeded by a collateral agnate, by name, Purusottam who died in 1915 and was succeeded by Kunja Behari, his brother. During Kunjabehari's lifetime, one Nandmani, claiming to be the legitimate son Braja Kishore and in that capacity claiming to have a preferential title to succeed to the estate, started a litigation in Original Suit No. 48 of 1320 in the Civil Court of Berhampur for recovery of the estate as against Kunja Behari. His suit was decreed in December 1922. The trial Court's decree was reversed by the Madras High Court, but was restored by the Judicial Committee to November 1932. In the meantime Kunja Behari executed a usufructuary mortgage in respect of the disputed village in favour of the plaintiff or his predece'ssor-in-interest on 31st March 1922. Since then the plaintiff remained in possession till he was evicted by Nandamani. Subsequent to the termination of the lease aforesaid, Nandmaai executed the decree against Kunja Behari & got possession of the estate sometime in February 1933 except the ten villages mortgaged with the plaintiff including the disputed one. Nandmani had to take out another execution against the plaintiff and got possession of the aforesaid ten villages. In granting possession to Nandmani as against the plaintiff it was held that the plaintiff's acquisition of interest over the property was affected by principle of lis pendens and that as such his possession was no better than that of the judgment-debtor against whom the decree had been obtained. In the self-same execution case, Nandamani had claimed recovery of mesne profits from the plaintiff. This claim, however, was disallowed on the ground that in the Original Suit, as framed, there was no relief prayed for recovery of mesne profits. Nandmani, therefore, had to institute a suit for recovery of mesne profits for the period prior to his getting back possession from Court. With regard to the period, the plaintiff took up an appeal against the order of the Subordinate Judge granting recovery of possession and refusing to give mesne profits. Nandmani too went up in appeal against the part of the order refusing to grant mesne profits. While the appeal was pending before Hon'ble High Court Madras, there was an application for stay of delivery of possession to Nandmani in pursuance of the Subordinate Judge's order, under appeal. Stay was granted on condition that the present plaintiff would form out the lands as before in due course of husbandry but should deposit the collection in Court till the disposal of the appeals. Ultimately, the learned Subordinate Judge's order was confirmed. Subsequent thereto, as I have said, a suit for recovery of mesne profits was instituted and besides an application under Sections 144 and 151, Civil P. C., was preferred before the Subordinate Judge for mesne profits of such years as could come within the purview of doctrine of restitution as enacted in Section 144. The decree in the suit as well as the order in the miscellaneous proceeding formed the subject-matter of appeal before the Patna High Court. The proprietor of the estate, probably Nandamani, was allowed recovery of mesne profits on the basis of actual collection made by the plaintiff from the tenants of the disputed village and other villages which were the subject-matter of the usufructuary mortgage. We have looked to the order of the High Court from which it is clear that the plaintiff in his statement of collections showed the present claim-amount as an unrealised one. With regard to amounts actually realised, he was made liable less 10 per cent of collection charges. With regard to amounts' unrealised, he was not held bound to pay, the mesne profits having been assessed on the basis of actual realisation and not on the basis of what he should have realised had he acted as a prudent man with due diligence.
2. The plaintiff has now come against the then lessor for recovery of the balance of the rent agreed under the lease. He had been given a decree by the trial Court which had been reversed by the lower appellate Court. Hence this Second Appeal.
3. One of the grounds on which ha was not held entitled to recover was that the lease propounded by him offended against the provision of Section 107. T. P. Act. and hence could not be enforced. It has, however, been brought to our notice in course of the argument by Mr. K. Patnaik, the Learned Counsel for the appellant, that the lease deed does not suffer from the alleged defect and that its execution is just in accordance with the provisions of Section 107. This contention, therefore, should succeed but to no good result to the appellants.
4. The question is whether the plaintiff is competent and entitled to realise this amount from the defendant in respect of his liability arising either under the contract of lease or by virtue of his use and occupation of the disputed lands. It will appear that at the time this lease was granted, the plaintiff had hardly any title to do so as prior to that date it had been finally decided by their Lordships of the Judicial Committee that the plaintiff's mortgagor, Kunja Behari, had no title to the estate. It cannot be said that there can be no circumstances under which notwithstanding Kunjabehari's absence of title the mortgage in favour of the plaintiff could be held binding against Nandamani; but such a case had neither been made out in the Court below nor in this Court. For all practical purposes, therefore, we are constrained to hold that when the plaintiff granted this lease he was a trespasser. If the matter rested there the plaintiff can be at once non-suited. The plaintiff, however, raises a very serious contention which deserves careful consideration. The contention is that the defendant is estopped from denying the plaintiff's title to grant the lease and to recovery of rent. Mr. Patnaik wants to put it that the question whether the plaintiff has title as against Nandamani or his heirs or successors or assigns is completely foreign to the present litigation. It is difficult to accept this contention but I will not pause to consider it on the ground that the matter had already been adjudicated as between him and the real owner. The only question that may, if at all stand in good stead is that of estoppel. He relies upon the principle enunciated in Section 116 but extended in its application to facts not contemplated therein. According to Section 116, Evidence Act, the rule of estoppel is limited not only in extent but also in time. The time to which it is limited is the continuance Of the tenancy. If the section is taken to be exhaustive in enunciating the rule of estoppel as applicable to suits or disputes between the landlord and the tenant, the plaintiff's case is very certainly outside the rule but Mr. Patnaik urges that according to certain authorities, it is well established that the rule of estoppel applies after the tenancy terminates. Be-i'ore dealing with the authorities, cited by him, it has to be borne in mind that the plea that has now been raised by the defendant (tenant) in the suit for recovery of rent by way of enforcing the lease of the year 1935-36 is that whatever might have been the position of the plaintiff at the time he granted the lease he was since been found not to be entitled to the possession of the property. Besides, the plea also involves the question that before the lease was granted he had no title. It has always been held both in England as well as in India that questioning of the landlord's or lessor's title reference to the time prior to the commencement of the tenancy and subsequent thereto is not covered by the well-known principle of estoppel as between the landlord and the tenant.
5. Mr. Patnaik mainly relies upon the case of 'Sm. Charu Bala Basu v. German Gomez', AIR (21) 1934 Cal 499, and the passage therein on which he banks most confidently occurs at page 500 Clause (ii). The passage reads:
'It is clearly impossible to hold that immediately on the termination of the tenancy the tenant would be entitled to question his landlord's title.'
6. Some retrospect of the facts giving rise to litigation in that case has to be set out. The lands in dispute belonged to one Mr. John Louis in his landlords right. He had let the lands out to the defendant of that case for a period of 9 years which terminated in the year 1922. Thereafter there was further renewal of the lease for a period of another 9 years. During the term of this tenancy, John Louis assigned his landlord's interest to the plaintiff of that suit (a lady) in the year 1325. The tenant paid rent to the plaintiff for 3 years. The tenancy terminated in the year 1922. The plaintiff asked the defendant to quit possession and had a notice served upon him. In the suit in ejectment, the tenant pleaded that he had been acknowledged as tenant of the land by the superior landlord the howladars, and that the plaintiff had no title so as to entitle her to get possession after eviction of the tenant. The question arose whether this plea was tenable in view of the principle of estoppel that debar the tenant from raising the same. Their Lordships Mr. Justice Mallik and Mr. Justice Jack adverted to a decision of the Privy Council in the case of 'Bilas Kunwar v. Desraj Ranjit Singh', 42 Ind App 202 irom which the proposition mat was laid down was extracted in the following terms;
'Their Lordships of me Judicial Committee of the Privy Council said in mat case that Section 116, Evidence Act, is perfectly clear on this point and rests on the principle well established by many English cases that a tenant who had been let into possession cannot deny his landlord's title, however, defective it may be -so long as' he has not openly restored possession by surrender to his landlord.'
Their Lordships then proceeded to consider whether the tenant-aefenaant in that case had openly restored possession to the landlord, and then came to the conclusion, that notwithstanding his claim that he had while continuing in the same possession which had been given to him under the tenancy in dispute, executed a Kabunyat in favour of and had been recognised as a tenant by the superior landlord he must be held not to have restored possession openly and by surrender to his landlord. Thus their Lordships heid that the defendant's piea tor exoneration from the bondage of the rule of estoppel did not come within the ambits of the proposition laid down by their Lordships of the Privy Council. This seems to be the 'ratio decidendi' of the decision of their Lordships of the Calcutta High Court in the aforesaid case. The learned counsel, however, relies upon the passage which I have already quoted. With regard to this passage, I can say that its might have been a bit more widely expressed but the passage does not stand by itself. It is traced to the previous decision of the Calcutta High Court in the case of 'M. Mujibar'Rahaman v. Isub Surati', AIR (15) 1928 Cal 546. There the contention was that the tenancy having been terminated by proper notice to quit, Section 116, Evidence Act, had no application to the case. After accepting this contention, their Lordships said:
'That is quite true, but it has been established by a long series of decisions that that Section 116, Evidence Act, does not contain the whole law of estoppel. It has been held in this Court that the tenant's estoppel operated even after the termination of the tenancy. That was held in the case of 'Bhaiganti Bewa v. Himmat Bidyakar', relying upon the observation of Chief Justice Tindal in 'Doe Dem Joseph Manton v. Austin', (1832) 9 Bing 41.'
Here too there is not much discussion to throw any light on the pronouncement of law, that is, because the reference has been made to a previous case of the Court. That) case is reported in '24 Cal L J 103'. In that case, there is, in fact, an annotation of the words 'during the continuance' of the tenancy occurring in Section 116 and they have said though not in identical terms in which I am going to express it that the said term would mean during the continuance of the possession that was received by or under the tenancy in question. The actual passage in which the operative part of the law pronounced by their Lordships occurs at page 108 is:
'Now, in my judgment, the plaintiff was entitled to obtain a decree for possession of the land, because the learned Subordinate Judge had found in favour of the plaintiff in respect of the tenancy of 1910, and, in view of that finding, in my judgment, the defendant was not entitled to set up his title against that of the plaintiff without in the first instance going out of possession and restoring possession which the plaintiff had delivered to him by means of the tenancy of 1910.'
In this judgment, there is reference to the leading case of 'Doe Dem Joseph Manton v. Austin', in which Tinctai C. J. is reported to have said;
'The principle is that the tenant shall not contest his landlord's title; on the contrary, it is his duty to defend it. If he objects to such title, let him go out of possession.'
7. It cannot be wrong to premise that while trying to codify this principle as enunciated by Tindal C. J., the term 'during the continuance' of the tenancy has been used. The real significance of this term means so long as the tenant is continuing in enjoyment of the benefits of the tenancy, He shall not be allowed to deny or challenge the author of the said tenancy. The principle, as expanded, has, however, been said in numerous decisions to be a general principle of estoppel as between landlord and tenant and is one outside the purview of Section 116, Evidence Act. It may be, therefore, too late in the day to say that such decisions are based upon an interpretation and adaptation, to a particular circumstance of a case, of Section 116 of the Indian Evidence Act. Free of authorities, I should say it is neither an adaptation nor expansion but merely an interpretation of the section. There is, therefore, no doubt that the present tenancy haying ceased to exist long ago and the tenant before us not having been continuing in possession on the strength or in pursuance of the tenancy, he is not debarred from raising the question of competence as well as the validity of title of the lessor. Once the bar of estoppel is removed the plaintiff is faced with the fact that he had no title to grant the lease.
8. The entire question can be decided by citing the instance of a hypothetical event. Suppose, Nandamani -- or his successors-in-interest institute a suit to recover a sum from this tenant as compensation for use and occupation of his lands without his leave and license, the question that presents itself for solution Is whether he is entitled to succeed. This hypothesis admits of one solution only, namely, that he should. To this also, Mr. Patnaik, in his usual fairness, does not advance any demur. If side by side we accept the plaintiff's case and enforce his propounded lease against the tenant and if the tenant is debarred by rule of estoppel from disputing the plaintiff's title, we must have to grant a decree to the plaintiff. In this contingency, the tenant will have to pay twice, that is to say, pur view with regard to the rule of estoppel in its application to the facts of this particular case will land us in an absurd and inequitable position. Another aspect of the matter also cannot be lost sight of, namely, that the plaintiff in accounting for the amounts for which is liability for mesne profits was fixed, he did not take up the responsibility or burden of realising. On the contrary, he got himself released from the liability on advancing the plea that he should not be held liable for the amounts unrealised or promises unfulfilled on account of his lack of diligence. In this plea of his, it is implicit that the real owner should not be debarred from enforcing the remedy available to him for making good the loss that he thereby sustains. On the contrary, he should be now estopped from insisting upon enforcement of claim by reprobating his conduct in the proceedings for ascertainment of mesne profits.
9. In the result, the plaintiff's suit must fail. The judgment and decree of the Court of Appeal below are upheld. His appeal is dismissed with
10. I agree with my Lord the Chief Justice.