1. The Sri Parthasarathi Temple, Triplicate, leased the suit land to the first defendant, the first defendant sub-leased it to the second defendant, and the second defendant to the plaintiff. At the termination of the period of tenancy, the second defendant brought proceedings under Chapter VII of the Presidency Small Cause Courts Act to recover possession from the plaintiff. An order was passed under Section 43 in the second defendant's favour, and the plaintiff thereupon filed this suit under Section 47. He raised very many pleas and they are set out in the five issues. Inter alia, the plaintiff alleged that the second defendant agreed to allow the plaintiff to remain in possession for three years which, he said, was the period of the lease of the first defendant from the temple and the second defendant from the first defendant. After the plaint was filed the temple obtained an order under Section 43 of the Presidency Small Cause Courts Act against the first defendant. The plaintiff thereupon obtained permission to amend his plaint and add another ground that the period of tenancy having determined, the second defendant had no right to possession. The plaintiff's suit was dismissed and hence this appeal.
2. The only point argued in appeal was whether the second defendant could retain possession in view of the fact that the period of her own tenancy had terminated. As already pointed out, one of the plaintiff's contentions was that the period of tenancy was for three years and that he too was entitled to remain in possession for three years. His present contention is therefore inconsistent with one of his main contentions in the amended plaint. It is however said that the matter has now been determined by an order under Section 43 in proceedings between the temple and the first defendant and that that finding is final, and binding until the first defendant has had it set aside in a suit in the City Civil Court under Section 47. Such a suit was filed by the first defendant and that suit is still pending.
3. The ordinary rule is admitted to be that a tenant must deliver possession before he can dispute his landlord's title arid that that estoppel ordinarily continues even beyond the term of the tenancy unless the tenant first delivers possession. A number of cases are quoted by Mulla in his 'Transfer of Property Act' as holding that the estoppel continues after termination of the tenancy unless possession is given up. Halsbury, in Vol. XIII at page 506, says:
But if the tenant came into possession under a lessor, the better opinion would seem to be that he must surrender possession before he disputes the lessor's title; it has, however, been held that it is not necessary that fie should actually go out of possession ... and that it is sufficient that he should come to a new arrangement with the person who really has the title to hold under him.
4. The only case quoted by the learned Advocate for the plaintiff in appeal is Ramaswami Thevan v. Alaga Pillai (1924) 79 I.C. 881, which was a case in which the Government had granted tree patta to a certain person who had sub-leased his rights to a tenant. The Government issued a notice to the pattadar which amounted to an eviction and Wallace, J., held, in the words of another case - he quoted Ram Chandra Chatterjee v. Pramatha Nath Chatterjee (1921) 63 I.C. 754, 'that there was the equivalent of eviction'. If the tenant has been evicted and he is put into possession by the person who evicts him, then his possession is not referred back to his original lessor and so the estoppel would not operate as it would if he had not been evicted. So it is seen that even in Ramaswami Thevan v. Alaga Pillai (1924) 79 I.C. 881, it was considered that eviction or something equivalent to it must have taken place before the lessee can deny the title of the lessor.
5. The learned Advocate for the plaintiff has relied on the wording of Sections 43 and 46 of the Presidency Small Cause Courts Act. Section 43 merely lays down the procedure to be adopted by the Court in applications for recovery of possession of property. If the occupant has proved that the tenancy has been determined and that his lessor had no right to possession, then it is sufficient cause, for the purpose of that section, why the Court should not pass an order for possession. The section does not purport to lay down any law modifying the ordinary law with regard to relations between landlord and tenant. Section 46 has no application as far as I can see; for the very question under consideration is whether the second defendant is entitled to possession.
6. It is further argued that a decision under Section 43 is, in the absence of a decree of a Civil Court varying it, final and that therefore the tenancy must be deemed to have been determined. I have already held that even if that were the case, the second defendant would still be entitled to retain possession until he is ousted by regular proceedings; but in view of the fact that a suit is still pending in the City Civil Court in which the right of the first defendant and therefore of the second defendant to remain in possession is being agitated and in view of the plaintiff's own case that his tenancy and the second defendant's tenancy are for three years, I do not consider that it can the assumed that the tenancy has terminated.
7. In any event, therefore, whether on the facts or in law, the appeal fails and is dismissed with costs.