Padma Khastgir, J.
1. Karam Chand Thapar & Bros. Ltd. moved this application for an order allowing the amendment of the plaint and also for addition of parties. Mahabir Prosad Lohia filed this suit against the petitioner claiming recovery of vacant and peaceful possession of the demised premises at No. 13, India Exchange Place, Calcutta decree for mesne profits, interest and costs.
2. By an indenture of lease dated 1st of Dec., 1960 a lease was granted in favour of Karam Chand Thapar & Bros. Ltd. The period fixed under the said lease had expired as a result it had come to an end by efflux of time. Thereafter the petitioner made an application on 5th of Oct., 1983 for leave to deposit the arrears of rent in instalments. Since this application it was the case of the petitioner that he had come to know from One Tulsi Charan Deb, the material facts regarding the suit premises No. 13, India Exchange Place, Calcutta. The said premises originally belonged to one Rai Bhupati Nath Deb Bahadur, the son of late Ananl Nath Deb. The said Rai Bhupati Nath Deb died after publishing his registered will dated 20th of Dec., 1957. Under the said will the testator bequeathed all his properties including premises No. 13, India Exchange Place, to his son Tulsi Charan Deb and his daughter Madhuri Bala Badalia in equal shares and appointed those two persons as the executor and executrix under the Will. The said Will had been duly probated by this Court. Under the circumstances the petitioner contended that the said Tulsi Charan Deb and Madhuri Bala Badalia were and still are the joint owners of premises No. 13, India Exchange Place to the exclusion of all others. The petitioner's father Madan Lal Lohia took a lease of the said premises for a period of 31 years with effect from 1st Mar. 1960 from Kamal Kumar Deb and eight other persons none of whom had any right, title and interest in any part or portion of the said premises inasmusch as the said premises belonged to Tulsi Charan Deb & Madhuri Bala Badalia. Under the circumstances no valid lease could be granted in favour of Madan Lal Lohia, and he had no right to create any further demise with regard thereto. Under the circumstances the lease granted by Madan Lal Lohia according to the petitioner, was void, inoperative and not binding on the defendant. Since the petitioner has come to know this fact subsequent to the filing of the suit, hence this application has been taken out.
3. The petitioner challenged the vires of Section 3 of the West Bengal Premises Tenancy Act inasmuch as according to the petitioner such provision is arbitrary in cases of leases which are for a period of 20 years and of cases which are for period of less than 20 years. The petitioner contended that there is no lawful justiciable or reasonable basis for such discrimination and it offends Articles 14 and 31 of the Constitution. Further the defendant contended that after the expiry of the demise in its favour the petitioner is entitled to continue under the provisions of the West Bengal Premises Tenancy Act. The petitioner contended that the suit was bad for non-joinder of the parties. Under the circumstances the petitioner prayed that Kamal Kumar Deb and eight other persons who created the tenancies on 5th Mar. 1960 as also Tulsi Charan Deb and Madhuri Bala Badalia be made party defendants to the suit. Inasmuch as the vires of a statute had been challenged under the circumstances the petitioner prayed for addition of the State of West Bengal as party defendant. The petitioner contended that these amendments as also the addition of the parties were necessary for the purpose of determination of the real question of controversy in suit between the parties.
4. The learned lawyers appearing on behalf of the petitioner submitted that the provisions of S, 116 of the Evidence Act have no application to the facts and circumstances of this case. Section 116 provides as follows : --
'116. No tenant of immovable 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 begining of the tenancy, a title to such immovable property ; and no person who came upon any immovable 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.'
5. Hence as the lease has come to an end and there is no tenancy subsisting under the circumstances it was the case of the petitioner that it was entitled to challenge the title of the lessor. He for that purpose relied upon the case reported in 64 Ind. Ap. 311 at 319 : (AIR 1937 P.C. 251 at P. 255). He further relied upon Foa's General Law on Landlord & Tenant 7th Edn. para 728 at page 455.
6. In the case reported in AIR 1922 Cal. 237 Ram Chandra Chatterji v. Pramatha Nath Chatteree it was held by a Division Bench of this Court that, it is open to a tenant to prove a subsequent cessor of landlord's title. The estoppel mentioned under Section 116 of the Evi. Act referes to the title at the beginning of the tenancy. One way in which a tenant can show that the title is determined is by proving the eviction by title paramount to or the equivalent of such an eviction.
7. In the case reported in AIR 1947 Pat 45. Shiba Prasad Singh v. Nilabji Bali it was held:-
'It is true that once a valid and subsisting lease is established between the parties, the lessee may be bound by the rule of estoppel and be debarred from disputing the question of title of the lessor, but that does not prevent the alleged lessee from denying the lease and his own status as a lessee. He is bound by the rule of estoppel only when he acts as a lessee and in that capacity attempts to refute the title of his own lessor. The principle of estoppel, as between lessor and lessee laid Jown in Section 116 does not debar any defendant from making out the case that he has never been a lessee, and the lease purporting to make him a lessee was never a valid document, and in that behalf, to plead such circumstances as may invalidate the lease or otherwise make it null and void.'
8. In the case reported in : AIR1952Ori95 Udaypratap Singh Deo v. Krushna Padhano it was held : --
'According to Section 116, the rule of estoppel is limited not only in extent but also in time. The time to which it is limited is the continuance of the tenancy. A tenant who had been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. The real significance of the term 'during the continuance' means so long as the tenant is continuing in enjoyment of the benefits of the tenancy, he shall not be allowed to deny or challenge the author of the said tenancy. The questioning of the landlord's title with reference to the time prior to the commencement of the tenancy and subsequent thereto is not covered by the well known principle of estoppel as between the landlord and the tenant.'
9. On the contrary it was the case of the plaintiff that the defendant being a tenant could not be permitted to deny the plaintiff's title to the premises and the petitioner's application was barred by the principles of estoppel. There had been an attornment of tenancy by the said Tulsi Charan Deb & Madhuri Bala Badalia and in fact rents have been paid and accepted by the said persons. The tenancy was created in favour of the defendant by the predecessor-in-title of the plaintiff Madan Lal Lohia. It was the case of the plaintiff that the defendant had taken out this frivolous application which is wholly misconceived, harassing and motivated. The parties sought to be added are not necessary parties but it would be embarassing for the plaintiff to add such parties inasmuch as the plaintiff enjoyed the dominus litis as a result this Court should not burden the plaintiffs cause by adding unnecessary parties. In the case reported in Banarsi Dass Durga Prashad v. Panna Lal Ram Richhpal Oswal, it was held : --
'Under sub-para (2) of O.I.R. 10, a person may be added as a party to a suit in two cases only, i.e. when he ought to have been joined and is not so joined, i.e. when he is a necessary party, or, when without his presence the questions in the suit cannot be completely decided. There is no jurisdiction to add a party in any other case merely because that would save a third person the expense and botheration of a separate suit for seeking adjudication of a collateral matter, which was not directly and substantively in issue in the suit into which he seeks intrusion. A person may not be added as a defendant merely because he would be, incidentally affected by the -- judgment. '.....
'.....As a rule the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litis. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief.
The word 'may' in Sub-rule (2) imports a discretion. In exercising that discretion, the Courts will invariably take into account the wishes of the plaintiff before adding a third person as a defendant to his suit. Only in exceptional cases, where the Court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate effectively and completely the matter in controversy between the parties, will it add a person as a defendant without the consent of the, plaintiff,'
10. In the case reported in 64 Ind. App. 311 : (AIR 1937 P.C. 251) Kumar Raj Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. it was held that no tenant of immovable 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 immovable property. The learned Judges observed that:
'The section does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant. It deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation. Whether during the currency of a term the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term, is estopped from disputing the claim which he has once admitted are important questions, but they are instances of cases which are outside Section 116 altogether; and it may well be that, as in English law, the estoppel in such cases proceeds upon somewhat different grounds and is not wholly identical in character and in completeness with the case covered by the section. The section postulates that there is a tenancy still continuing, that it had its beginnig at a given date from a given landlord. It provides that neither a tenant nor any one claiming through a tenant shall be heard to deny that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise which is the case before the Board on this appeal the section applies against the lessee, any assignee of the term and any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease, and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to reversion, though in such cases there may be other grounds of estopple, e.g., by attornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who 'let the tenant in' as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end.'
11. Under Order 1 Rule 10 the Court has ample power at any stage of the proceeding either upon or without the application of the either party and on such terms as may appear to the Court to be just to order that the name of any party improperly joined whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit,' be added.
12. Under the circumstances even if necessary at the time of the final hearing the Court would have ample jurisdiction to add parties if thought so necessary and under Order 27A in suits involving a substantial question of law as to the interpretation of the Constitution and as to the validity of any statutory instrument, the Court under rules 1, 1A, 2 and 2A may at any stage of the proceeding in any suit involving any such question may order that the Government or other authority shall be added as a defendant where
'1. In any suit in which it appears to the Court that any such question as is referred to in Clause (1) of Article 132 read with Article 147 of the Constitution, is involved, the Court shall not proceed to determine that question until after notice has been given to the Attorney General for India if the question of law concerns the Central Government and to the Advocate-General of the State if the question of law concerns a State Government'.
'1A. In any suit in which it appears to the Court that any question as to the validity of any statutory instrument not being a question of the nature mentioned in Rule 1, is involved, the Court shall not proceed to determine that question except after giving notice --
(a) to the Government Pleader, if the question concerns the Government, or
(b) to the authority which issued the statutory instrument, if the question concerns an authority other than Goverment'.
'2. The Court may at any stage of the proceedings order that the Central Government or a State Government shall be added as a defendant in any suit involving any such question as is referred to in Clause (1) of Article 132 read with Article 147 of the Constitution, if the Attorney General for India or the Advocate-General of the State, as the case may be, whether upon receipt of notice under Rule I, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.'
'2A. The Court may, at any stage of the proceedings in any suit involving any such question as is referred to in Rule 1A, order that the government or other authority, shall be added as a defendant if the Government Pleader or the pleader appearing in the case for the authority which issued the instrument, as the case may be, whether upon receipt of notice under Rule 1A or otherwise, applies for such addition, and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question.'
13. Under the circumstances if necessary at the hearing upon notice being served upon the State, the Court would consider the addition of the State of West Bengal as a party. So far the submission of the petitioner that the lessor had no title to grant the lease is concerned in the case reported in 64 Ind App. p. 311 at 319 : (AIR 1937 P.C. 251 at p. 255) it had been observed by the Learned Judge that Section 116 did not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant. Where the party on reversion accepts rents from the tenant he is estopped from disputing the claim which he once admitted and those are the instances of cases which are outside Section 116 altogether. The learned Judges were also aware of the cases where there may be other grounds of estoppel, e.g., by attornment, acceptance of rent etc.
14. In the instant case the rents had been paid by cheque and also accepted and receipts had been granted for the same. In the case reported in AIR 1934 Cal. 499 Sm. Charubala Basu v. German Gomez it was held by a Division Bench of this High Court that where a tenant who had been let into possession by the plaintiff's predecessor is sued as a trespasser by the plaintiff for eviction after the expiry of the term, the tenant is not entitled to dispute the plaintiff's title. A tenant who had been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord and the tenant's estoppel operates even after the termination of the tenancy Relying upon the case Bilas Kunwar v. Deshraj Ranjit Singh reported in AIR 1915 P.C. 96 it was held that Section 116 of the Evidence Act is perfectly clear and rests on the principle well established by many English cases that a tenant who had been let into possession cannot deny his landlord's title, however defective it may be so long as he has not openly restored possession by surrender to his landlord. Where the tenant is in possession he cannot be allowed to challenge the lessor's title. The learned Judges observed that it would be clearly impossible to hold that immediately on the termination of the tenancy the tenant would be entitled to question his landlord's title.
15. In the case reported in : AIR1979Ori101 Surajbali Ram v. Dhani Ram a Division Bench of the Orissa High Court while considering the Orissa House Rent Control Act and eviction proceedings held :
'Estoppel under Section 116 of the Evidence Act applies in cases under House Rent Control Act also. Where the tenants were in possession in consequence of the tenancy created by the opposite party, they should not be allowed to question the title of the opposite party as long as they are in enjoyment of the tenancy. In other words, let the tenants vacate the premises and then question the title of the landlord and not when continuing in possession of the tenanted house. This is based on the salutary principle of prohibiting the beneficiary while enjoying the benefit, to challenge the competence of the benefactor to confer on him that benefit.'
16. In paragraph 2 the learned Judges observed that such were the desperate efforts made by the tenants to perpetuate their possession by all conceivable methods --doubtful and dubious. There the learned Judges observed: --
'Great reliance was placed on a Division Bench decision of this Court in the case of Udaypratap Singh Deo v. Krushna Padhano : AIR1952Ori95 . Emphasis was laid on a sentence which runs thus :-- The questioning of the landlord's title with reference to the time 'prior to the comencement of the tenancy and subsequent thereto is not covered by the well-known principle of estoppel as between the landlord and the tenant'.
Relying on this it was very strenuously argued that as the tenants here were questioning the title of the landlord at the time of partition in 1953, i.e. five years prior to the creation of the tenancy in 1958, the bar of estoppel under Section 116 of the Evidence Act is not attracted. This argument ingeneous though, cuts no ice. The sentence when read with reference to the context means something different. In the words of their Lordships it is as follows : --
'A tenant who had been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. The real significance of the term during the continuance' means so long as the tenant is continuing in enjoyment of the benefits of the tenancy, he shall not be allowed to deny or challenge the author of the said tenancy.'
Obviously this is based on the salutary principle of prohibiting the beneficiary while enjoying the benefit to challenge the competence of the benefactor to confer on him that benefit. In this case, the tenants being in possession in consequence of the tenancy created by opposite party No. 1 should not be allowed to question the title of the landlord opposite party No. 1 as long as they are in enjoyment of the tenancy. In other words, let them vacate the premises and the building and then question the title of the landlord and not when continuing in the house. This citation, therefore, does not come to the help of the petitioner at all. This is therefore decided against the petitioners'.
17. Factually the petitioner is still in occupation of the demised premises. Under the circumstances the petitioner is not entitled to by way of amendment to challenge the title and obtain the order as prayed for. The application is dismissed. Cost in the cause.