1. This appeal is on behalf of two of the defendants and arises out of a suit instituted by the plaintiffs against; them and another on 27th April 1934 to recover royalty for the period between 28th March 1928 and 27th March 1934. The only defence which is necessary for us to consider in some detail is the defence that rent for this period is not payable, because of their dispossession by persons having, title paramount to the title of the plaintiff, who is the lessor of the defendants. Two other points have been raised before us on behalf of the defendants-appellants, which, we would notice in their proper places. To decide the first point, namely whether the suit ought to have been dismissed on, the ground that the tenants have been dispossessed by title paramount, it is necessary to notice the following facts. Mouza Bau Bahal, also called jote Dhemu, is said to appertain to the zamindari of the Maharaja of Burdwan. Under the Burdwan zamindari, there is a patni and under the patni there is a darpatni. Uttam Lal Sarkar, the plaintiff in this suit, has a share in the aforesaid patni and also has eight annas share in the said darpatni. On 26th January 1920 he granted a mining lease for 999 years of certain lands situated in mouza Banbahal to one James Kirkwood. (Ex. 1, Pt. II, p. 1.) In para. 2 of the said lease different rates at which royalty for different classes of coal was to be paid are mentioned, as for instance, 5 annas a ton for steam coal, 3 annas a ton for slack, 2 annas a ton for dust coal, etc. James Kirkwood sold his rights in this leasehold to Amrita Lal Ojha, defendant 1, on 20th June 1921. Amrita Lal in his turn entered into a partnership with another person, Nanji Khengarji, for the purpose of working the coal land. By this partnership transaction, the interest which Amrita Lal had acquired in the leasehold from James Kirkwood vested in himself and his partner Nanji Khengarji, and the business was carried on in the name and style of Khengarji Amritalal & Co. The said firm is defendant 2 to this suit, Amrita Lal Oja, defendant 1, and Eabi Shankar Eewa Shankar Trivedi, the transferee of Nanji Khengarji's interest is defendant 3. Between 1923 and 1928, Uttam Lal sued his lessees for rent and royalty due in accordance with the terms of the lease, Ex. 1. The tenant-defendant in these suits raised a plea that inasmuch as he was only an eight annas sharer in the darpatni, he could only claim rent and royalty at half the rates mentioned in the lease. This defence was overruled in all these suits and Uttam Lal got decrees at the full rates mentioned in the lease. One of the defences to this suit was the selfsame defence that had been overruled by the learned Subordinate Judge in those suits, and the defendants-appellants did not pursue this defence further.
2. It appears that on 9th September 1931 a person named Anandji Haridas took a mining lease from the Maharaja of Burdwan. After taking this mining lease, he took up the position that he was entitled to the underground minerals and not Uttam Lal, or the defendants who are the lessees under Uttam Lal. He apparently proceeded upon the view that the patnidar or the darpatnidar has no right to the underground minerals, inasmuch as the patni or the darpatni patta never expressly gave them those rights. He accordingly served a notice on 31st November 1931 on the defendants, forbidding them to pay royalty to Uttam Lal. After getting this notice the defendants did not attorn to Anandji Haridas, but continued to be in possession as tenants under Uttam Lal. Anandji Haridas followed up the notice by instituting a suit for recovery of possession against Amrita Lal and Uttam Lal, the Maharaja of Burdwan being also made a party defendant to the suit. This suit was filed on 26th November 1932, and has been numbered Title Suit No. 54 of 1932. In the next year the Ukhra Babus filed a similar suit, being Title Suit No. 180 of 1933 for possession, against Amrita Lal and Uttam Lal, they claiming as prior lessees under the Maharaja of Burdwan. This suit was filed on 24th August 1933. In both these suits the plain, tiffs took up the position that Uttam Lal and Amrita Lal were trespassers on the mine, they having no right to the same. Both the suits were filed for recovery of the mine in possession of Amrita Lai. These suits have not been disposed of by the trial Court, and there has not, up to now, been any adjudication as to whether the title of the Maharaja of Burdwan to the underground minerals and so the title of the lessees under him, is paramount to the title of Uttam Lal or not. But without expressing any opinion on this question, for the purpose of deciding the controversy in this case, we would assume that Uttam Lal had no title to the minerals but that the plaintiffs in those suits have paramount title, that is to say, title superior to the title of Uttam Lal. On these facts, the question which was raised in the lower Court and decided against the appellants is this:
Has there been a dispossession of the defendant by the plaintiffs of those two suits, namely title Suits Nos. D4 of 1932 and 180 of 1933?
3. As has already been stated, the defendants are in actual possession; they have not been turned out by any of the plaintiffs in those suits; nor had they attorned to any one of them. The only thing is that Anandji Haridas gave notice to them and then sued them for possession. The Ukhra Babus did not give any such notice but have sued for possession on the ground that they had got a settlement from the Maharaja of Burdwan of the underground minerals and that settlement was before the Maharaja concluded the settlement with Anandji Haridas. In our judgment, there has not in fact or in law been any dispossession at all, that is to say, the defendants have not been dispossessed by any of these persons. In order to sustain the defence to the rent suit, founded upon the eviction by title paramount, two things must be proved by the defendant, namely (i) that he has been evicted by a third person, and (ii) that third person had a paramount title, superior to the title of his lessor. As we have already stated that for the purpose of our judgment we assume (but do not decide) the second element to be established. But the question is whether the defendants have been evicted. The principle is well established that physical expulsion is not necessary; it would be sufficient if the tenant under threat of dis. possession from a third person attorns to him and so converts his possession into possession of the latter. The mere assertion by the third person that he has better title to the knowledge of the lessor and the lessee, is not a defence to a rent suit by the lessor against the lessee, even if this assertion be a true assertion. It is essential that the person asserting such title should take possession or should be taken in the eye of law to have taken possession of the demised premises. If he does not take physical pos. session but the tenant attorns to him, in the eye of the law he gets into possession through the lessee who becomes his tenant. Through the possession of his tenant, he is in constructive possession of the tenancy. It is on this principle that attornment by the lessee to the person claiming and having title paramount amounts in law to an eviction by title paramount. If this principle be correct, we do not see how we can give effect to the contention raised before us by the appellants. The learned advocate for the appellants however has contended that the institution of a suit for possession by a person having title paramount in law amounts to an eviction by title paramount and in support of that relies upon a passage in the judgment of Richardson J. in Ram Chandra v. Pramatha Nath (1922) 9 A.I.R. Cal. 237 at p. 154. The passage runs; as follows:
In England the current of authority seems to favour the view that it is not necessary for the tenant actually to go out of possession and that if, upon a claim being made by a person with title paramount, he consents by an attornment to such a person to change the title under which he holds, or enters into a new arrangement for holding under him, this will be equivalent to an eviction and a fresh taking.
4. To this statement of law no objection can be taken, but the following passage, which runs thus, requires consideration:
See also Grimwood v. Moss (1872) 7 P.C. 360 at p. 364 and Serjeant v. Nash Field & Co. (1903) 2 K.B. 304 at p. 311, where it was held following Jones v. Carter (1846) 15 M & W 718, that the bringing of an action of ejectment was equivalent to an entry. In this case, it is true, the action was brought by the landlord to eject the tenant for breach of a covenant protected by a clause for reentry. But I do not see why that should make any difference. The owner of the true title certainly has a right of entry against a trespasser and his action or suit in ejectment is brought to enforce that right.
5. It is correct to say that the owner of the true title has a right of entry against a trespasser. But we fail to see how on any principle of law the possession of the trespasser can be attributed in law to the true owner, that is to say, on what principle of law can the true owner be said to be in constructive possession through the trespasser. This further proposition which Richardson J. laid down in this case does not seem to us to accord with principle, and if the principle, on which an attornment by the lessee to a person claiming and having title paramount constituted an eviction of the former, be what we have said above, we do not see how the mere institution of a suit for possession by the true owner against the lessee or demand for possession, would in law constitute his eviction. The cases noticed by Richard. son J. in his judgment, namely, for example, Grimwood v. Moss (1872) 7 P.C. 360 at page 364 are, as his Lordship pointed out, cases where the landlord brought the action against his tenant for possession on the basis that by breach of a covenant committed by the latter the lease had come to an end. Those cases lay down that the institution of a suit for possession against the tenant, where there has been breach of a covenant entitling the landlord to re-enter, is sufficient in law to put an end to the tenancy, that is to say a previous act indicating the landlord's intention to treat the tenancy as forfeited is not necessary. This is the law in England; but we may parenthetically say, although it has no bearing on the decision of the present case, that Section III, T.P. Act, enacts otherwise. It points out that the institution of a suit for ejectment by the landlord for breach of a covenant is not sufficient to determine the tenancy; the landlord must before suit indicate his intention to forfeit the lease. Reliance has been placed also on the judgment of two other cases by the learned advocate for the appellants. The first is the case in Matthey v. Curling (1922) 2 A.C. 180, a decision of the House of Lords. The reference is to the following observation of Lord Buckmaster at pp. 226-227 of the Report:
There has been throughout the case some confusion as to what constitutes a defence on the ground of eviction by a title paramount. It is assumed that this means by an act which the lessee could not control; but here is no trace of such a doctrine in any of the authorities. Eviction by title paramount means an eviction due to the fact that the lessor had no title to grant the term and the paramount title is the title paramount to the lessor which destroys the effect of the grant, and with it the corresponding liability for payment of rent.
6. In this passage, Lord Buckmaster was not considering what constitutes an eviction; but he was defining, what was 'absolutely necessary in that case, the phrase 'title paramount' and pointing out the legal effect, if there was an eviction in fact by a person having title paramount. In that case, the lessee had in fact been put out of possession by the War Office under statutory powers and the only question was whether the War Office had title paramount.
7. The next case on which reliance has been placed is the case in Alaga Pillai v. Ramaswami Thevan (1926) 13 A.I.R. Mad. 187. There the defendant had been inducted on the land as tenant by the plaintiff's grandfather. While he was in possession, the Government served a notice upon him under Section 7, Madras Land Encroachment Act (Mad 3 of 1905). After the notice was served on him, he agreed to pay rent to the Government. The plaintiff after that sued him in ejectment. The defence was a plea of limitation. It was laid down that if the defendant had been dispossessed by title paramount, his tenancy had come to an end under the law and that he was entitled to plead the right of a third party and also to defeat the suit on the ground of limitation. The question therefore that arose was whether there had been an eviction of the defendant by a person having title paramount, namely the Government. In discussing the question, no doubt the learned Judges laid down the proposition in the following terms:
The eviction need not be by actual dispossession of the tenant. If the true owner is armed with a legal process for eviction which cannot be lawfully resisted even though the tenant is not put out of possession the threat to put him out of possession amounts in law to eviction.
8. This passage, in our judgment, has been couched in wide language. There was however eviction, because it was found that on the service of the notice which had been issued under Section 7, Land Encroachment Act, he agreed to pay assessment to the Government and so attorned to the person having title paramount. The learned Judge also, after construing the different provisions of the said Act (Mad 3 of 1905) came to the conclusion that a notice under Section 7 of the said Act amounts in law to an eviction. We do not accordingly see our way to give effect to the contention of the appellants that the institution of the two suits for recovery of possession against the defendants by Anandji Haridas and the Ukhra Babus amounts in law to eviction of the said tenant defendants. This defence therefore has, in our judgment, been rightly overruled by the learned Subordinate Judge.
9. It now remains for us to consider the other two points raised by the learned advocate for the appellants. The first point is this that we ought to declare that the defendants have the right of indemnity by reason of the implied covenant for quiet enjoyment, as provided for in Section 108(c), T.P. Act. This argument proceeds upon the view that Uttam Lal has no title to the minerals and, by reason of the defect in his title, the quiet enjoyment of the defendants has been interfered with. We cannot give effect to this contention for the following reasons : (a) that the enjoyment of the defendants under the lease has not yet been disturbed by anybody and up to now there is only a threat to disturb their possession; (b) it has not been decided as yet as to whether Uttam Lal's title to the minerals was defective. Two title suits are pending; and at this stage, we cannot give any opinion on this question which may prejudice the defences raised by Uttam Lal in those cases; and (c) that this contention or claim does not fall within the purview of the suit; if the defendants have a claim for damages for breach of covenant on the part of their lessee, their remedy lies in a suit for damages. For these reasons we cannot give effect to this contention of the appellants. All we can say is that this judgment of ours would not be taken to prejudice any claim for damages which the defendants might be advised to put forward later on.
10. The last contention is that we should direct a stay of the execution of the decree, in view of the fact that the two title suits referred to above are still pending in which claims for mesne profits have been made by the plaintiffs in those suits against Amrita Lal also. We cannot give effect to this contention. 'Whether the execution would be stayed or not would be a matter for consideration when the plaintiff applies for execution of his decree. The fact that there is a claim for mesne profits in the title suits may be one of the relevant circumstances for consideration for the executing Court. The result is we overrule all the contentions raised on behalf of the appellants and dismiss the appeal with costs to the plaintiff-respondent.