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S. Chokkalingam Pillai and anr. Vs. M.S.S.M. Ganesa Shanmugasundaram Pillai - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2184 of 1946
Judge
Reported inAIR1951Mad284; (1950)2MLJ605
ActsEvidence Act, 1872 - Sections 116
AppellantS. Chokkalingam Pillai and anr.
RespondentM.S.S.M. Ganesa Shanmugasundaram Pillai
Appellant AdvocateK.V. Ramachandra Iyer and ;V. Meenakshisundaram, Advs.
Respondent AdvocateP.N. Appuswami, Adv.
DispositionAppeal dismissed
Cases Referred and Krishna Prasad v. Adyanath
Excerpt:
- - the threat by the third party as well as the submission to it by the tenant who attorns to him must be real and bona fide. for a threat of eviction by title paramount to constitute a good defence, the party evicting must have good title and the tenant must have quitted against his will......the courts below have dismissed the suit on the ground that there was a determination of the lease in favour of the defendant by the determination of the title of the plaintiff as the lessee from the original owner. 2. in appeal it is contended that in holding against the estoppel under section 116, evidence act, pleaded by the plaintiff, the courts below have erred in the view that they have taken, that there was a threat of eviction by title para, mount from the original owner against) the defendant it is urged that there could be no determination of the lease in favour of the defendant so long as the interest of the plaintiff himself as the defendant's lessor did not; terminate in the manner contemplated by section 111(c), t. p. act. 3. the material facts are that there was a.....
Judgment:

Raghava Rao, J.

1. This second appeal arisea out of a suit for ejectment and for rent. So far as the first: relief is concerned, it is admitted that the lease under which the plaintiff claims and on the basis of which he has granted a sub lease to the defendant has expired. The second relief is however the practical relief with reference to which a decree must be given in favour of the plaintiff, if he is to succeed in his contention of estoppel against his tenant, the defendant. The Courts below have dismissed the suit on the ground that there was a determination of the lease in favour of the defendant by the determination of the title of the plaintiff as the lessee from the original owner.

2. In appeal it is contended that in holding against the estoppel under Section 116, Evidence Act, pleaded by the plaintiff, the Courts below have erred in the view that they have taken, that there was a threat of eviction by title para, mount from the original owner against) the defendant It is urged that there could be no determination of the lease in favour of the defendant so long as the interest of the plaintiff himself as the defendant's lessor did not; terminate in the manner contemplated by Section 111(c), T. P. Act.

3. The material facts are that there was a scheme suit in respect of the property which belonged to the trust, the original owner, in which the plaintiff as a lessee from one of the trustees then in management, one Kanthimathinatha Pillai, was impleaded but was given up at the trial, that afterwards the new trustees appointed by the scheme framed in that suits served two notices on the defendant, EX. p-9 dated 6-1-1943 and Ex. D-3 dated 17 5-1943 in both of which they asserted their title as trustees under the scheme, and in the latter of which they impeached the title of Kanthimathinatha Pillai to grant the lease to the plaintiff as he was only one of several trustees and not the managing trustee at the time, and called upon the defendant to vacate the premises, threatening him in default with proceedings for evictions and that thereafter the defendant; executed Ex. D-4 dated 23-6-1943, a rent deed, in favour of the managing trustee appointed under the scheme. These facts, it is contended for the appellant, do not constitute sufficient threat of eviction by title paramount such as would justify the attornment by the defendant to the managing trustee under the scheme so as to put an end to the relationship of lessor and lessee between himself and the defendant. The appellant further points out that the judgment and decree in the scheme suit do not at ail declare the invalidity of the lease in favour of the plaintiff by Kanthimathinatha Piliai but leave the question of the validity of his lease open. He also contends that the learned Subordinate Judge has made the mistake of supposing that there was a prior judgment, Ex. D-7, which by the way related to a lease of other property is favour of another person in which Kanthimathinatha Pillai had been declared by the High Court in the second appeal to which that judgment relates, not entitled to grant leases as he was only one of several trustees and not the managing trustee. It is not contended for the respondent that the learned Judge has not made this mistake. What is contended is that although the scheme judgment and decree did not pronounce upon the validity or invalidity of the lease in favour of the present plaintiff, the title of the plaintiff must be taken to have come to an end, because in fact Kunthirnathinatha Pillai was only one of several trustees and nob the managing trustee and could not therefore grant the lease to the plaintiff. It is also contended for the respondent that the question whether there was in fact a threat of eviction by title para-mount is a question of fact with the lower appellate Court's finding on which I ought not to interfere.

4. What exactly constitutes a threat of eviction by title paramount which results in the determination of a lease has been considered in several cases of which it is necessary for me to mention only the rulings in Jogendralal v. Moheshchandra : AIR1929Cal33 ; Bajkrishna Prasad v. Baraboni Coal Concern Ltd. : AIR1935Cal368 , Alaga Pillai v. Ramaswami Thevan A. I. R. 1926 Mad. 187 : 91 I. C. 1024, Valia Muhammad v. Savakutti, A. I. R. 1934 Mad. 19T : 147 I. C. 1218 and Krishna Prasad v. Adyanath, 22 Pat. 513 : : AIR1944Pat77 . What emerges from the relevant case law on the subject is neatly stated by Sar-kar on Evidence in his commentary to Section 116, Evidence Act. It is sufficient for me to say that in order to constitute an eviction by a person claiming under paramount title, it is not necessary that the tenant should be put out of possession or ejectment should be brought, and that a threat of eviction is sufficient and if the tenant, in consequence of such threat, attorns to the claimant, he can set this up as an eviction by way of Defence to an action for rent, subject to his proving the evictor's title, but there is no eviction if the tenant gives up possession voluntarily. If the true owner is armed with a legal process for eviction which cannot be lawfully resisted even though the tenant is not put out of possession, the threat to put him out of possession amounts in law to eviction. The threat by the third party as well as the submission to it by the tenant who attorns to him must be real and bona fide. For a threat of eviction by title paramount to constitute a good defence, the party evicting must have good title and the tenant must have quitted against his will.

5. Applying these considerations to the present case, I am fairly clear that there was a sufficiently effective threat of eviction by title paramount to justify the defendant's attornment to the newly appointed managing trustee under Ex D-4. That the lease in favour of the plaintiff must be held to be invalid is the concurrent view of both the Courts below, and although the judgment of the appellate Court was partly influenced by its misconstruction and misconception of Ex. D-7 I am not, in all the circumstances of the case, prepared to interfere with the finding of the Courts below in favour of the respondent, which is supported by sufficient evidence.

6. In the result the second appeal fails and is dismissed but in the circumstances without costs.


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