1. The plaintiff in this case sued to recover possession of a manikat from purakkudi tenants after removing the superstructure thereon, the allegation being that the first defendant's father, and the other defendants were let into the land on condition of doing service in accordance with the Tanjore custom of purakkudi service; that, when the plaintiff called on the defendants in 1913 to quit the land because they refused to do service, the defendants pleaded title from Government to whom they had executed a muchilika in respect of the suit site.
2. The first Court held that, since the cessation of service was long prior to twelve years, before the plaintiff's suit, the plaintiff's title to the suit site had become extinguished by force of Section 28 of the Limitation Act. The Appellate Court held that it was not open to the defendants to plead justertii in Government until they had determined the existing tenancy by surrendering possession or otherwise and that, therefore, the defendants were not entitled to question the plaintiff's title; and decreed the suit in favour of the plaintiff. The defendants apppeal.
3. The main question argued before me was whether the tenancy under plaintiff has not already been determined, or whether the defendant is not in law to be allowed to set up his muchilika from Government being estopped by force of Section 116 of the Indian Evidence Act from denying the plaintiff's title. The plaintiffs land is Survey No. 498, which so far as appears, always has been registered as tope porambohe. Prima facie then, the paramount title is with Government. Plaintiff alleges, however, on the strength of a delivery account, Exhibit A which is said to relate to the suit land that the suit land was in 1886 not porambohe hub punja. No doubt in Exhibit A the land is styled punja. On the other hand Exhibit C. series is a series of B. memos' from 1901 to 1905 whereunder plaintiff has been charged penal assessment for unauthorised cultivation of Survey No. 498 Tope Poramboke. Plaintiff explains the entry of the description ' tope poramboke ' in Exhibit C. series by saying that originally the land was punja, that it was handed over to Government at some time unknown for purposes of growing trees and that Government took it over, grew trees thereon and registered the land as tope poramboke.
4. But for all this there is absolutely no evidence. A mere document between private parties, such as Exhibit A, cannot possibly be proof of the correctness of any description of 8the land contained therein m the face of Exhibit C. series.
5. It is argued for the plaintiff that it is only the portion covered by the trees which is registered as tope poramboke, and that the other portion, on which the suit house site is, must be considered as being natham poramboke and in the ownership of the plaintiff, who has occupied it for long. But I can see no foundation for such a case. There is no suggestion that Survey No. 498 has been sub-divided or that any portion of it is natham, poramboke.
6. The plaintiff himself, in his evidence, admits that these B memos. Exhibit C series were for the suit land and that he only possessed a tree patta in respect of the suit land. It is well known that tree pattas are not issued to owners of the land on which the trees stand. He also admits that he put in a petition to the Collector offering to give a muchilika in respect of the suit site to Government. Prom all the facts noted above it is perfectly clear that the plaintiff admits that the paramount title for the suit land vests in Government, and has always done so, and that the plaintiff's occupation of the suit land has been all along subject to the paramount title of Government therein.
7. The plaintiff's title then was obviously a defeasable one liable to be defeated at any time by the entry of the true owner. Defendants are now claiming title from the true owner, under their muchilika Exhibit II. The only question then is whether they are estopped by Section 116 of the Indian Evidence Act from putting forward this claim. The cases relied on by the lower Court and in the argument before me do not in my view support this plea of estoppel in the case. Ammu Ammal v. Puthiaparambath Moidin (1918) M.W.N. 38 is in fact in favour of the defendants, since it lays down that
It may be that a person having a paramount title may put an end to the rights of the intermediate landlord thereby extinguishing the subtenancy as well. In the present case Government and the plaintiff are rival claimants,
8. It is not, however, so here. There is no question of any rivalry between Government and the plaintiff since the plaintiff admits paramount title in Government. In Eledath Thavazhi v. Eliangotti Sankara Valia (1918) 7 L.W. 574 there was no case put forward of the paramount owner entering and putting an end to the title of the inter, mediate landlord. Similarly, in S.A. No. 320 of 1915 which has been quoted before me there is nothing to show that Government had all along held title paramount to that of the 18th defendant. On the other side, there is a case in Ram Chandra Chatterjee v. Paramathanath Chatterjee A.I.R. 1922 Cal. 237 in which it was clearly laid down that it is open to the tenant to prove a cessor of his landlord's title by ouster by the holder of title paramount and to attorn to the latter without actually going out of possession. Defendants have here also proved 'the equivalent of an eviction.' There was by notice Ex. III an ouster of the plaintiff's title by the party having the title paramount, which will operate as a determination of the plaintiff's right on the date of the commencement of the tenancy.
9. Section 116 of the Indian Evidence Act, is no bar to a tenant showing that his landlord had no title at a date previous to the commencement of the tenancy, or that, since its commencement it has expired or has been defeated, because the bar operates only during the continuance of the tenancy, see Ammu v. Ramakrishna Sastri (1879) 2 Mad. 226. In a case of eviction by the title paramount, actual and open surrender of possession to the intermediate landlord is not necessary. The principle rests on the covenant by the lessor for quiet enjoyment to the lessee.
10. I am quite clear, therefore, that the plaintiff having been ousted by the paramount landlord, has himself no subsisting title to sue. It is not necessary, therefore, to go into the further question whether the defendants have been in adverse possession since the date of the refusal to do service and whether such refusal is a sufficient ground to constitute an adverse possession.
11. I, therefore, reverse the decree of the lower Appellate Court and restore that of the District Munsif. Defendants Nos. 1 to 4 will get their costs from plaintiff here and below.