Anil K. Sen, J.
1. This is a revisional application at the instance of the opposite party in a distress proceeding under the Presidency Small Cause Courts Act, being Distress Case No. 120 of 1983 of the 4th Bench of the Court of Small Causes, Calcutta. The order impugned is one dated 14-1-1984, passed by the learned Judge, 4th Bench, overruling an objection to the distress preferred by the opposite party under Section 60 of the said Act. The facts are not in dispute and the point involved is one of question of law.
2. The petitioner before the Court of Small Causes, Calcutta, Messrs. Manton & Company Limited was a lessee in respect of premises No. 13/3, Old Court House Street, Calcutta. The lessee suffered an order for eviction passed by the Tribunal constituted under the Public Premises (Eviction of Unauthorised Occupants) Act dated 18-3-1976. An appeal preferred by the lessee against the said order of eviction under Section 9 of the said Act succeeded when the learned Chief Judge, City Civil Court, Calcutta, on 10-9-1981, set aside the said order of eviction. The appellate order, however, was set aside by this court on May 29, 1982. in CR 158 of 1982 and this court restored the original order of eviction. The lessee preferred a special leave application before the Supreme Court against the said order of this court but the Supreme Court by an order dated 9-9-1982, dismissed the said special leave application but allowed the lessee time till 30-9-1983. to vacate.
3. At the time when the aforesaid C. R. 158 of 1982 was pending in this court and the order for eviction stood set aside by the learned Chief Judge, City Civil Court at Calcutta, the petitioner before us Messrs. Sree Genesh Trading Company Private Limited was inducted as a sublessee by the lessee on 24-10-1981. The rent payable by the sub-lessee to the lessee for the period October 1982 to August 1983, being in default the lessee instituted the aforesaid distress proceedings, being Distress Case No. 120 of 1983 against the said sub-lessee, the petitioner before us. To this distress, an objection was preferred by the sub-lessee under Section 60, Presidency Small Cause Courts Act, to the effect that the relationship of landlord and tenant as between the parties stood determined by the order for eviction which was restored by this court on May 29, 1982. This objection has been overruled by the learned trial Judge who held that 'neither in law nor in equity the defendant can resist the claim of the plaintiff for rent for the period in question.'
4. Mr. Das Gupta appearing in support of the revisional application has raised only one point in support thereof before us. According to Mr. Dasgupta, the effect of the order for possession as was upheld by this court in C. R. 158 of 1982 is to determine the title of the lessee as such and such an order for eviction constitutes eviction by title paramount. The point thus raised by Mr. Dasgupta has been strongly contested by Mr. Mukherji who is appearing for the lessee.
5. The short point that arises for our consideration, therefore, is as to whether the order for eviction as passed against the lessee by itself determines the lessee's title to realise rent from the sub-lessee and whether such an order even before its execution can constitute eviction by title paramount. On a careful consideration of the point so raised, it appears to us that such a point is no longer res integra. Such a point was specifically raised before a Division Bench of this court in the case of National Jewellery Works v. D. P. Works (1959) 63 Cal WN 192 and this court in express terms upheld the claim of rent of a lessee who has suffered a decree for eviction but yet had not been evicted in execution thereof. Mr. Mukherji has rightly drawn our attention to two other decisions supporting the same view. In the case of Adya Nath Ghatak v. Krishna Prosad Singh AIR 1949 PC 124, the Privy Council held that a tenancy between A and C stood determined not by the decree for eviction obtained in 1925 against A, but by execution thereof in 1928. The view taken by the learned trial judge is fully supported by a decision of the Madras High Court in the case of Bhagavatula K. Rao v. Mungara Sanyasi ILR 55 Mad 601 (at Pages 605-606) : (AIR 1932 Mad 298 at P. 299).
6. A point was raised by Mr. Mukherji that under the provision of Section 116. Evidence Act, the sub-lessee is estopped from disputing his lessor's right to realise rent in the facts and circumstances of the case. On our finding as regards the continuance of the lessor's title to realise rent until actual eviction by virtue of the order for possession, the question of estoppel loses its importance. Even then we cannot but observe that there is ample substance in this contention of Mr. Mukherji. It appears to us to be settled principle that though under Section 116. Evidence Act, the lessee is precluded from disputing the title of his lessor at the date of the lease, he is not precluded from pleading loss of title of the lessor subsequent to the induction as a result of eviction by title paramount. But in our opinion, a mere decree or order for possession by itself cannot constitute eviction by title paramount. In order to constitute such eviction there must be actual dispossession may be by delivery of symbolical possession in consequence to the decree or order for possession. Mr. Mukherji has rightly drawn our attention to the following observations from Spencer Bower's Estoppel by Representation 3rd Edition :
'The estoppels which mutually bind a landlord and tenant are estoppels by convention and when the lease is de facto as well as de jure disrupted by the process of eviction by title paramount, there can be no injustice in allowing a tenant to establish this fact and indeed this has always been allowed, and the tenant permitted to use the evidence for the purpose of extinguishing completely any right to estoppel which the landlords might previously have enjoyed.'
Thus, to overcome the bar of the rule of estoppel it is always necessary for the lessee, in the present case the sub-lessee, to establish as a fact that his relationship with his immediate landlord stood disrupted not only de jure but de facto. When in the facts of the present case we find that the Supreme Court in upholding the order for eviction granted the lessee time till 30-9-1983, to vacate, obviously lessee's possession either by himself or through sub-lessee could not have been affected by the order for eviction before the expiry of the time so granted. We, therefore, are of the opinion that there is ample substance in this contention of Mr. Mukherji.
7. In the result, the only point raised in support of the revisional application fails. The application fails and is dismissed.
8. I agree.