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Ajitulla Vs. Bilati Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal383a,137Ind.Cas.556
AppellantAjitulla
RespondentBilati Bibi and ors.
Cases ReferredRup Chand v. Sarveswar
Excerpt:
- .....basiran should be taken to have been in possession till her death through her husband edol unless edol's possession became adverse to her at any point of time. the complaint of basiran's mother in 1318 may well be put aside. it was not an act of basiran and cannot be treated as an admission made by her that she was out of possession. the fact that in 1316 defendant l's name came to be recorded in the landlord's sherista is by itself no evidence of dispossession. this fact coupled with the fact that in that year edol declared his intention to possess the land on defendant 1's behalf and adversely to the plaintiff may however amount to dispossession of the plaintiff; and the question is whether defendant 1 can set up such a plea.4. now according to the law of england the person who has.....
Judgment:

Mukerji, J.

1. Defendant 1 is the appellant in this appeal. The plaintiff sued for recovery of possession of two jotes on the allegation that they belonged to his sister Bagiran Bibi who died leaving her as the only heir. Defendant 1 contends that Basiran Bibi was his stepmother and has made a gift of the jotos to him long before her death and delivered possession thereof to her. The Munsif dismissed the suit. The Subordinate Judge has decreed it.

2. The Subordinate Judge disbelieved the story of the gift. This finding of his cannot be challenged now. The question that has been raised is the question of limitation Basiran died in 1326, i. e., within 12 years of the suit which was instituted in 1923. She was living under protection of her husband Edol, father of defendant 1, who was looking after and cultivating the lands on her behalf. Ho evidently behaved perfidiously and allowed the name of defendant 1 to be recorded in the landlord's sherista. This was in 1316. The findings of the Subordinate Judge are not very clear, but it may be taken that in 1316 Edol declared his intention be possess the lands on behalf of defendant 1, and in 1318 Basiran's mother complained to the landlord about the registration of defendant l's name. The question is whether in those circumstances the plaintiff's suit is barred.

3. The position seems to be that Basiran should be taken to have been in possession till her death through her husband Edol unless Edol's possession became adverse to her at any point of time. The complaint of Basiran's mother in 1318 may well be put aside. It was not an act of Basiran and cannot be treated as an admission made by her that she was out of possession. The fact that in 1316 defendant l's name came to be recorded in the landlord's sherista is by itself no evidence of dispossession. This fact coupled with the fact that in that year Edol declared his intention to possess the land on defendant 1's behalf and adversely to the plaintiff may however amount to dispossession of the plaintiff; and the question is whether defendant 1 can set up such a plea.

4. Now according to the law of England the person who has been let into possession as a tenant is estopped from denying his lessor's title without openly surrendering possession, and it has been held that the law in India is the same and has not been altered in this respect by the Evidence Act: see Bhaiganta Bewa v. Hinmat [1916] 35 I.C. 7 and Reajuddi v. Chand Baksh [1916] 35 I.C. 28 That this doctrine applies to India has been affirmed by the highest judicial authority: see Bilas Kunwar v. Desraj Ranjit Singh A.I.R. 1915 P.C. 96. Section 116, Evidence Act, which enacts the rule of estoppel of a tenant is therefore not exhaustive of all principles of estoppel as between landlord and tenant. The basis of this particular principle is the fact of the letting into possession which creates the estoppel: see the remarks of Tindal, O. J., in Claridge v. Mackenzie 4 M.& G. 143 at p. 152. In the case of Doed Knight v. Lady Smythe 4 M. & Section 347 Dampier, J. said:

It has been ruled that neither the tenant nor any one claiming by him can dispute 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.

5. In Doed Bullen v. Mills 2 Ad. & El. 17 it was held that if a tenant consents to give up possession to a party claiming by title adverse to the landlord's title, that party is estopped as the tenant would have been from disputing the landlord's title.

6. On this rule, if Edol had been a tenant let into possession by Basiran and had consented to give up possession to defendant 1, defendant 1 could not have pleaded his adverse title unless Edol had first surrendered possession in favour of Basiran. It has been held that Sections 115 to 117, Evidence Act, are not exhaustive and the principle of estoppel contained in these sections may be applied by analogy to parties not mentioned therein, Rup Chand v. Sarveswar [1906] 33 Cal. 915. If the whole basis of the doctrine is the letting into possession, there is no reason why the doctrine should not apply to this case even though Edon was not a tenant but as a licensee or an agent.

7. I am of opinion therefore that defendant 1 is estopped from raising the plea that the possession of Edol was not on behalf of Basiran but of himself. The result is that the plaintiff has succeeded in showing that her predecessor was in possession within 12 years of the suit.

8. The appeal, in my judgment, cannot succeed and it is accordingly dismissed with costs.

9. Leave to appeal under Section 15, Letters Patent, has been asked for but I do not consider this case to be a fit one for such leave. It is refused.


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