1. The plaintiff who was unsuccessful in both the courts below has come up by way of this second appeal. The short facts are as follows: He has filed O. S. 836 of 1970 before the court of the District Munsif, Kulitalai, for a declaration that he is entitled to remain in possession of the suit property and also for an injunction. According to him, the suit property is a road poromboke comprised in S.F. 583 situate in Manapparai Town. This was shown as A.B.C.D. in the plaint plan. The plaintiff encroached upon this suit item in about 1949 or 1950 and was running a tea shop. By issue of memos, his right to remain in possession has been recognised by the Government of Tamil Nadu. The portion marked as A.E.F.G., situated on the north of the suit item was a private property of the first defendant, the second defendant being the power of attorney agent of the first defendant. The portion shown as E.B.H.F. is situated north of the suit item and east of A.E.F.G. This portion is a road poromboke. The first defendant was in possession of this portion E.B.H.F. Since the plaintiff wanted additional accommodation, he took the property situated on the north of the suit item for lease from the first defendant. The defendants instituted eviction proceedings in respect of the portion leased to the plaintiff shown as A.B.H.G. Eviction was ordered which was sustained even in appeal. The plaintiff was granted time till 10-8-1970. Under the cover of those proceedings, the plaintiff was sought to be evicted. The property which was leased out in favour of the plaintiff by the defendants being originally poromboke belonging to the Government, by reason of the assignment in favour of the Municipality, the Municipality had become the owner. The said Municipality had given permission by its order dated 12-6-1969 and 20-7-1970 to the plaintiff to occupy the suit item. Hence, the rights of the plaintiff had been protected and, therefore, he instituted the suit.
2. In defence it was contended that the entire property including the suit item was enjoyed by the 1st defendant who encroached upon the property notwithstanding the same being Government poromboke. So long as the plaintiff was inducted into possession by means of a tenancy agreement from the defendants, it was not open to him to deny their title.
3. The defence was accepted. Hence the learned District Munsif dismissed the suit. On appeal in A. S. 652 of 1972, the learned District Judge, Tiruchirapalli, dismissed the appeal upholding the judgment of the trial court. Hence the present second appeal.
4. It is the contention of Mr. S. Kothandarama Nayanar, learned counsel for the appellant, that the courts below erred in their construction of Sec. 116 of the Evidence Act. According to him, it is not correct to hold that the plaintiff without surrendering possession of the property could not deny the title of the defendants. Having regard to the fact that the property originally belonged to the Government, being a poromboke, which came to be assigned in favour of Manapparai Municipality and further having regard to the fact that the said Municipality had granted permission to the plaintiff to remain in the property, it was well open to him to set up title in the paramount title holder, viz., the Municipality. In support of his contention, the learned counsel relied on the decision in Gurusami Nadar v. Ranganathan, : AIR1954Mad402 and Krishnamurthi v. Thambaram Panchayat, : (1970)1MLJ444 . I am unable to accept the argument of the learned counsel for the appellant. In Guruswami Nadar v. Ranganathan. : AIR1954Mad402 , in interpreting Sec. 116 of the Evidence Act, at page 514, it was held-
'But it is now well settled that the duration of the estoppel continues so long as the tenant has not openly restored possession by surrender to his landlord.'
However. what the learned counsel would urge is a sentence which occurs lower down to the effect 'from this, the exception follows that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title-holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title-holder will apply to him. In the case on hand, for the exception to apply, none of the factors as stated therein at all have arisen. Therefore, the absolute rule quoted above would apply. Krishnamurthi v. Thambaram Panchayat, : (1970)1MLJ444 is the judgment of Palaniswamy J., where in the learned Judge has held:--
'The rule of estoppel laid down under S. 116 of the Evidence Act is not absolute. It is well settled that where the true owner evicts the tenant let into possession by another, the tenant could attorney to the true owner and set up his title in answer to a suit filed by the landlord who let him in possession. The only limitation is that so long as the tenancy is subsisting the tenant is not entitled to set up a jus tertii in a third person. Where the tenant is evicted from possession by the true owner, the tenancy comes to an end and there is nothing in law o prevent the tenant from attorning to the true owner. In such cases it is not necessary that the eviction of the tenant should be by actual dispossession. If the true owner is armed with a legal process for eviction, which cannot be lawfully resisted, even though the tenants is not put physically out of possession, it would in law amount to eviction. The question whether there was a threat was sufficient in law to make the tenant attorn to the person putting forward the threat has to be decided upon the facts and circumstances of each case.'
Here again, those circumstances which the learned Judge pointed out have not arisen. As between the Municipality and the defendants, this title is yet to be decided. Consequently, I see no reason to disagree with the concurrent findings of the courts below.
5. The second appeal will, therefore, stand dismissed. There will be no order as to costs. No leave.
6. Appeal dismissed.