Lancelot Sanderson, C.J.
1. In this case the suit was brought for ejectment.
2. In the first Court the plaintiff was successful and obtained a decree.
3. In the first Appellate Court, however, the plaintiff's suit was dismissed on the ground that the defendant had, succeeded in proving that he was entitled to the land. The learned Subordinate Judge further found; on my reading of his judgment, on the second issue which was whether the land was settled with the defendant by the plaintiff in burga,' that the plaintiff had settled the land with the defendant as alleged by the plaintiff, but that inasmuch as the tenancy had come to an end, Section 116 did not apply and, therefore, the defendant was entitled to set up his own title against that of the plaintiff.
4. It appears that the plaintiff alleged that the land was hers and she had obtained it by succession and settled it with defendant on the 14th of January 1910 for a year's tenancy which would, of course, come to an end on the 14th of January 1911. The rent was payable in kind, being half share of the profits of the land. The half share of the jute cultivated on the land was delivered to the plaintiff, but the half share of the other crop was not so delivered and, on the 24th of February 1911, after the tenancy had expired, this suit was instituted.
5. Now, in my judgment, the plaintiff was entitled to obtain a decree for possession of the land, because the learned Subordinate Judge had found in favour of the plaintiff in respect of the tenancy of 1910; And, in view of that finding, in my judgment, the defendant was not entitled to set up his title against that of the plaintiff without in the first instance going oat of possession and restoring possession which the plaintiff had delivered to him by means of the tenancy of 1910. This principle was laid down, so long ago as 1832 by Chief Justice Tindal in the case of Doe d. Joseph Manton v. Austin (1832) 9 Bing. 41 : 2 M. & Scott. 107 : 1 L.J. C.P. 152 : 131 E.R. 529 in these words: 'The principle is that a tenant shall not contest his landlord's title; on the contrary; it is his duty t6 defend it. If he objects to such title, let him go out of possession'.
6. Now, this was the law of India before the Evidence Act was passed. It is contended, however, that by reason of Section 116 of the Evidence Act, this principle of law to which I have referred does not apply. Section 116 says: '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; and no person who came upon any 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.'
7. It is argued on behalf of the respondent in this case that that section is exhaustive with regard to the point with which it deals and that the intention of the Legislature was to alter the law to which I have just referred. In my judgment, that is clearly not so. It has been decided by this Court in Ganges Manufacturing Co. v. Sourujmull 5 C. 669 : 5 C.L.R. 533 that Sections 115 to 117 of the Evidence Act are not exhaustive; and the judgment of the late Chief Justice Sir Richard Garth to which I wish to draw attention is at page 678. There he is reported to have said: it has been further contended by the appellants that Sections 115 to 117 contained 'in Chapter VIII of the Evidence Act lay down the only rules of estoppel which are no intended to be in force in British India; that those rules are treated by the Act as rules of evidence; and that by Section 2 of the Act, all rules of evidence are repealed, except those which the Act contains. But if this argument were well founded, the consequences would indeed be serious; The Courts here would then be debarred from entertaining any questions in the nature of estoppel which did not come within the scope of Sections 115 to 117, however important those questions, might be to the due administration of the law.' I desire to point out that the principle of law which was laid down by Chief Justice Tindal to which I have referred is a matter of great importance.
8. It is not a matter of mere question of form whether the person who has been a tenant should be the plaintiff or-the defendant, in a suit to establish the title of one or the other; it is a matter of substance, and in order to show that, one may take as an example a case, which is by no means unfrequent, where two parties are claiming title to certain land, and both parties have considerable difficulty in producing strict proof of their title to the land; in such a case as that, possession is of great importance, because the party who is in possession of the land has great advantage in such a suit; for, unless the party, who is out of possession, can satisfy the Court and discharge the burden which lies upon him to prove that he has got good title to the land, the person who is in possession, remains in possession of the land. Therefore, in my judgment it is a matter of great importance that the principle of law to which I have referred should be affirmed.
9. In the Court of first instance and also in the first Appellate Court another question was enquired into and a decision was arrived at upon it, namely, whether the plaintiff was in reality the owner of the land, or whether the defendant was in reality the owner of the land. In my judgment, that question was quite immaterial, as soon as it had been decided by the learned Judge that the defendant had been let into possession of the land under a tenancy granted by the plaintiff; this case must be decided as if that other1 question, which, in my opinion, was immaterial, had not been decided at all.
10. For these grounds I am of opinion that the appeal from the learned Judge's judgment ought to be allowed, and the result is that the plaintiff is entitled to the possession of the land, and she is also entitled to such damages as the Munsif awarded her (that I understand to be Rs. 5) for the defendant wrongfully retaining possession.
11. The plaintiff is entitled to her costs in all the Courts.
Asutosh Mookerjee, J.
12. The facts material for the determination of the question of law raised before us are not in controversy. On the 14th January 1910, the plaintiff let out the land in suit to the defendant for a term of one year and placed him in possession. The tenancy expired on the 14th January 1911; but the defendant refused to deliver up possession to the plaintiff; the result was the institution of this suit for ejectment on the 4th February 1911. The defendant resisted the claim on the allegation that the plaintiff had no exclusive title to the property at the date of the lease in his favour; his case was that the plaintiff had inherited the property not from her mother, as she alleged, but from her husband who was the brother of the defendant; consequently, upon the death of her husband, the property would, under the Muhammadan Law, descend, not to her alone but to her along with the defendant and other possible heirs. The Court of first instance made a decree in favour of the plaintiff. Upon appeal, that decree was reversed. On appeal to this Court, the: decree of the Court of Appeal below has been affirmed by Mr. Justice Mullick, who has overruled the contention of the plaintiff that the defendant was bound by the doctrine of estoppel and could not challenge the title of the plaintiff. Reliance was placed by the plaintiff on Section 116 of the Indian Evidence Act which provides that '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.' To this, the defendant answered that as the tenancy here had terminated, the rule of estoppel was no longer applicable. This contention found favour with Mr. Justice Mullick and the result was that the suit was dismissed.
13. It has not been disputed before us that according to the law of England a person who has been let into possession as tenant by the plaintiff is estopped from denying his lessor's title without first surrendering possession. Reference may be made to Doe d. Knight v. Smythe (1815) 4 M. & S. 347 : 16 R.R. 486 : 105 E.R. 862 decided in 1815 where the tenant in possession paid rent to the lessor and then disclaimed. Bayley, J., observed that 'the tenant should have given up the possession to Knight (the lessor), and then the defendant, if she has title, might have maintained her ejectment.' Mr. Justice Dampier added: 'it has been ruled often that neither the tenant, nor any one claiming by him, can controvert the landlord's title. He cannot put another person in possession, but must deliver up the premises to his own landlord. This, I believe, has been the rule for the last 25 years, and I remember was so laid down by Buller, J., upon the Western Circuit:' Doe d. Bristow y. Pegge (1785) 1 T.R. 758n. : 4 Dougle. 130 : 99 E.R. 1362. This exposition of the law has been repeatedly re-affirmed. Alchorne v. Gomme (1824) 2 Bing. 54 : 9 Moore 130 : 2 L.J. (O.S.) C.P. 118 : 130 E.R. 225; Doe de Joseph Manton v. Austin (1832) 9 Bing. 41 : 2 M. & Scott. 107 : L.J. C.P. 152 : 131 E.R. 529; Tadman v. Henman (1893) 2 Q.B. (sic) : 5 R. 479 : 57 J.P. 664. There is an instructive discussion on this subject in Bayley v. Bradley (1848) 5 C.B. 396 : 16 L.J. C.P. 206 : 136 E.R. 932 : 75 R.R. 764 to which reference may usefully be made. In the course of the 'argument in that ease, Wilde, C.J., obsevered: 'Does the lease operate as an estoppel except during the term?' Serjt Byles answered: 'A tenant is at all times estopped from disputing the title of his landlord,' and referred to a long line of cakes, including Doe A. Knight v. Smythe (17). At a later stage of the argument, Mr. Justice 'Vaughan Williams repeated the question 'whether the estoppel does not end with the term.' Serjt Byles answered: 'The estoppel is limited in point of extent; but there is up authority for saying that it is limited in point of time.' Wilde, C.J., then intervened with the following observation: 'In Co. Litt. 47 b., it is said, that, 'if a man-take a lease for years of his own land by deed indented, the estoppel doth not continue after the term ended; for, by the making of the lease, the estoppel doth grow, and, consequently, by the end of the lease the estoppel determines.' The Only qualification I am aware of, that has been engrafted 'Ron that rule, is, that, if the tenant came into possession, under the lessor, he must restore the possession before he disputes the title.' The position is different, as Erle, C.J., pointed out in Accidental Death Insurance Co. v. Mackenzie (1861) 5 L.T. (N.S.) 20 : 9 W.R. 783 : 122 R.R. 964, when the tenant had possession before he took the lease.
14. Enjoyment by permission is the foundation of the rule that a tenant shall not be permitted to dispute the title of his landlord. Two conditions, then, are essential to the existence of the estoppel, first, possession secondly, permission; when these conditions arte present, the estoppel arises, and the estoppel prevails so long, as such possession continues. That this was' unquestionably 'the Jaw in this country before the Indian Evidence Act was passed, is clear from a long line of decisions. The doctrine was expressly formulated in Mohesh Chunder Biswas v. Gooroo persad Bose (1863) Marsh. 377 : 2 Hay. 473 and Vasudev Daji v. Babaj Ranu 8 B.H.C.R. A.C.J. 175 and was impliedly recognised in Banee Madhub Ghose v. Thakoor Doss Mundul (1866) B.L.R. Supp. Vol. 58 : 6 W.R. Act X 71; Gouree Dass Byragee v. Jugurnath Roy Chowdhry 7 W.R. 25; Burn & Co. Rusho Moyee Dossee 14 W.R. 85; Jainarayan Bose v. Kadambini Dasi 7 B.L.R. 723 Note. We have further the weighty opinion of Sir Subramanya Ayyar, C.J., expressed in the case of Muthunaiyan v. Sinha Samavaiyan 28 M. 526 : 15 M.L.J. 419 that the law has not in this respect been altered by the Indian Evidence Act, and that now, as before, a tenant who had been let into possession was estopped from denying the landlord's title without first surrendering possession see also Trimbak Ramchandra Pandit v. Ghulam Zilani Waiker 5 Ind. Cas. 965 : 34 B. 329 : 12 Bom. L.R. 208. The respondent, however, has contended that this view is erroneous and that the law as embodied in Section 116 of the Indian Evidence Act is an intentional departure from the English Law on the subject. In my opinion, there is no foundation for the contention that the Legislature, in 1872, intended to revive and introduce into this country the archaic rule prevalent in England in the days of Lord Coke. Section 116 does not, by its very terms, affect the present case. That Section merely provides that, during the continuance of the tenancy, a tenant of an immoveable property or persons claiming through such tenant, cannot be permitted to deny that the landlord of such tenant, at the beginning of such tenancy, had title to the immoveable property. This does not imply that after the expiration of the tenancy the tenant is free to dispute the title of the landlord. There is no conceivable reason, why we should read into the section such an implication; if the Legislature had intended to lay down the rule indicated by the respondent, the section might easily have been differently framed. Besides, as laid down hi Ganges Manufacturing Co. v. Sourujmull 5 C. 669 : 5 C.L.R. 533 and Rup Chand Ghose v. Sarbessur Chandra Chunder 3 C.L.J. 629 : 33 C. 915 : 10 C.W.N. 747 Sections 115 and 116 of the Indian Evidence Act are not exhaustive, and there may be rules of estoppel applicable other than what is contained in those sections. Reference was finally made to the decisions of Ammu v. Ramakrishna Sastri 2 M. 226 and Subbaraya v. Krishnappa 12 M. 422 which are-clearly distinguishable, as they merely affirm the principle that a tenant is not estopped, either before or after the expiration of the term, from showing that the title of his lessor had determined. In the case before us, the defence is not that the title of the lessor had determined, but that the lessor had no title at the time the lease was granted. This defence was clearly not available to the defendant so long as he retained the possession which he had obtained by permission of the plaintiff.
15. I agree on these grounds that this appeal must be allowed and a decree made in the terms proposed by the Chief Justice.