1. The disputed land was an abadi land of the landlords Manoranjan Deb and Manmathnath Deb who were brothers. Plaintiff's case is that on 5-5-44 Manmathnath Deb settled 1.98 acres of land including the disputed land in Sthitiban right on the plaintiff deity with her daughter-in-law Sm. Nandarani Debi as the marfatdar. Plaintiff constructed the suit house and has been paying rent to the landlord, and after vesting to the Anchal Defendant took the disputed house on monthly rent. One of the houses had two rooms and defendant was paying Rs. 3 as rent for that house. He was paying rent of Rs. 2/8/- for the second house having three rooms. Defendant defaulted in payment of rent from Chaitra 1930 Sal. The suit is for declaration of title and recovery of Rs. 187 as arrear of rent.
The defence case is that he never took the disputed houses from the plaintiff on rent. Plaintiff's title to the disputed land and house was challenged. Defendant's positive case is that the two landlords were separate before the abolition of the estate and plaintiff cannot acquire a valid title without getting lease from both the landlords and without a registered document. According to the defendant, his father and thereafter he himself had taken the lease of the houses when those were kutcha at Order 50 P and Rs. 2/8/- respectively, the first one for the residence and the second one holding a shop. Later on, the defendant wanted to set up a huller machine in one of the rooms of the second house. He approached the landlords who allowed him to cement the floor agreeing to enhance the rent of the first house from Rs. -/8/- to Rs. 3. The rent of the second house continued at Rs. 2/8/- per month.
2. The learned trial court recorded the following findings:
(a) The amalnama executed in favour of the plaintiff by one of me co-snarer landlord did not create any tenancy in favour of the plaintiff which was not for agricultural purposes.
(b) The amalnama and the rent receipts taken together show that the tenancy was created by the landlords.
(c) Plaintiff's case that he constructed the houses after taking delivery of possession of the land is not acceptable. Defendant used to reside in the very houses prior to the execution of the amalnama. Defendant himself remodelled the kutcha house.
(d) Defendant admitted the title of the plaintiff as landlord in respect of the suit house.
3. The learned lower appellate court held as follows:
(a) The lease was for agricultural purposes and the plaintiff acquired valid title by execution of the unregistered amalnama which is admissible for the collateral purpose of showing possession and by acceptance of rent.
(b) Plaintiff re-modelled the disputed house.
(c) By acceptance of rent, defendant is estopped from challenging the title of the plaintiff as landlord.
Thus, though the learned lower appellate court differed from some of the findings of the trial court, it dismissed the appeal agreeing with the trial court's decree in favour of the plaintiff.
4. Two questions mainly cropped up for consideration of the courts below:
(1) Did the plaintiff acquire a valid title by the amalnama executed in his favour by one of the co-sharer landlords in respect of piece of an abadi and on which some kutcha houses stood?
(2) Did the defendant accept the plaintiff as the landlord on payment of rent? If so, is the defendant estopped from challenging plaintiff's title as landlord?
5. There is no dispute that defendant is in arrears of rent for the amount claimed. The question is whether the amount is payable to the plaintiff.
6. Mr. Misra stated that the question of acquisition of title by the plaintiff on the strength of the amalnama and payment of rent to the landlord and thereafter to the Anchal may be kept open in this suit. In view of such a prayer for the plaintiff, the finding of the District Judge that plaintiff had title to the disputed land, the lease being for agricultural purposes, must be vacated. It is to be made clear that this question regarding acquisition of title by the plaintiff is left open.
7. The only other question for consideration is whether defendant paid rent to the plaintiff being attorned to the deity as a tenant. Thedefendant's case is that there was not relationship between the plaintiff and himself andthat the rent receipts filed in the case were inrespect of payment made to the original landlords which are being utilised by the marfatdarwho is the daughter-in-law of one of the landlords.
8. Mr. Sinha placed reliance under Section 116 of the Evidence Act and contended that as the defendant was not inducted into possession of the disputed house by the plaintiff, he is not estopped from challenging the plaintiffs title. That section lays down as follows:
'116. No tenant of immoveable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immoveable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given.'
He cited Lal Mahomed v. Kallanus, (1885) ILR 11 Cal 619 and Rahimannessa v. Mahadeb, (1910) 12 Cal LJ 428 in support of an argument that the words 'at the beginning of the tenancy' in the section only apply to cases in which tenants are put into possession of the tenancy by the person to whom they have attorned, and not to cases in which the tenants have previously been in possession. These decisions have not been subsequently accepted as laying down the correct law. See AIR 1933 PC 29 and AIR 1937 PC 251. The current of thought is in favour of the view that though a person was in possession before execution of the lease or the creation of the new tenancy he is estopped from challenging the title of the landlord unless he can prove that he executed the lease or agreed to the new tenancy by attornment or otherwise under a fraud, misrepresentation or mistake. He cannot also set up any title in favour of a third person until and unless he gives up his possession.
In Krishna Prosad Lal v. Baraboni Coal Concern Ltd., AIR 1937 PC 251 Sir George Rankin laid down in unmistakable terms that Section 116 of the Evidence Act does not profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant. Under the section, the various categories of persons mentioned are precluded from denying that the lessor had a title at the date of the lease and there is no exception even in respect of a case where the lease itself discloses the defect of title. His Lordship 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.'
If the defendant was attorned as a tenant to the plaintiff and defendant paid rent to the plaintiff, in law, defendant is estopped from challenging the title of the plaintiff as landlord without first giving up possession of the disputed house. Mr. Sinha's contention that estoppel has not application to the present case is untenable.
9. Mr. Sinha then contended that the learned lower appellate court committed a substantial defect in the procedure provided by theCode, inasmuch as, it did not take into consideration all the relevant evidence on record to determine the main question whether the defendant was attorned to the plaintiff as a tenant and had paid rent in recognition of the relationship as landlord and tenant; that this defect had produced an error in the decision of the lower appellate court upon merits and as such the finding of fact is not binding on this argument. The learned District Judge has disposed of this aspect of the case with me following observations only:
'Ex. 3 series are the counterfoils of rent receipts which are coming from the custody of the plaintiff would show that not only the defendant-appellant but also his gomasta or clerk has in some of the counterfoils of rent receipts signed at the time of making payment of rent on hire of the two houses. The defendant-appellant, therefore, having admitted the plaintiff-respondent to be the landlord in respect of the two rooms or the two houses on the suit land is estopped from challenging the title of the plaintiff.'
The second sentence is the conclusion and the first sentence is the reason for such conclusion. It cannot, therefore, be denied that the relevant evidence on the point has not been taken into consideration in arriving at the finding of fact. The judgment of the trial court has discussed this matter and the learned lower appellate court should have applied his mind fully to this important question. It is to be noted that the plaintiff's positive case in the plaint was that the two houses had been given to the defendant by the plaintiff at the rate of Rs. 3 and Rs. 2/8/- per month respectively.
The rent receipts (Ex. A series) corresponding to the counterfoils (Ex. 3 series) show that the rent was being paid at the rate of Rs. -/8/- and Rs. 2/8/- for the two houses. The learned District Judge should have taken notice of this fact and reconciled the position before recording a finding in favour of the plaintiff that defendant was attorned as a tenant to the plaintiff and paid rent. The learned judge similarly should have considered that the marfatdar of the deity is the daughter-in-law of one of the co-sharer landlords. The agents or gomastas of the landlord were working as gomastas of the plaintiff.
The learned District Judge should have examined with reference to the entire evidence on record whether the defence pleas that the rent receipts granted by the original landlords are being utilised by the plaintiff to establish the relationship of the landlord and tenant. To ignore these essential pieces of evidence amounts to a substantial defect in the procedure which affects the decision of the lower appellate court on merits. This Court is not bound to accept such a finding of fact, in view of Section 100(1)(c), C. P. C. It is unnecessary to refer to other pieces of evidence since the case is to go back on remand.
The only question which the learned lower appellate court will now examine is whether the defendant was attorned and paying rent tothe plaintiff. If the court records a finding in favour of the plaintiff, the suit for recovery of rent must succeed as the defendant is estopped from challenging the plaintiff's title. If the finding is to the contrary, plaintiff's suit for recovery of rent will be dismissed.
10. In the result, the judgment of thelearned lower appellate court is set aside andthe appeal is allowed. The case is to go backon remand to the learned lower appellate courtfor disposal in accordance with law and theobservations made above. Costs to abide theresult.