1. These purport to be two cross second appeals, which arise out of a suit filed by Lalman for the ejectment of Nazroo from two shops, numbered 3 and 4, situate at Ant, and for the recovery of a sum of Rs. 424/S/- as.arrears of rent. Lalman's case was that he had leased out these shops to Nazroo on payment of rent and that Nazroo had defaulted with the rent. Consequently, Lalman claimed a decree for the ejectment of Nazroo and for arrears of rent mentioned above.
2. Nazroo, while admitting that he had taken shop No. 3 on rent from Lalman, contended that he was not liable to ejectment at the instance of Lalman, because, according to him, Lalman was not the proprietor of the shop. As regards shop No. 4, he denied that he had taken it on rent from the plaintiff. The trial Court decreed the suit for ejectment as far as shop No. 3 was concerned, along with a sum of Rs. 60/8/- as arrears of rent. The suit was, however, dismissed as far as shop No. 4 was concerned, since, in the opinion of the Subordinate Judge, the plaintiff had failed to prove that the defendant had taken it from him on rent.
3. Both parties went up in appeal to the learned District Judge and the latter dismissed both the appeals. Consequently, both parties have filed second appeals in this Court. These were admitted as second appeals on 18-3-1954 on the strength of an affidavit filed by the parties to the effect that the market value of the shops in dispute is Rs. 2,500/-.
4. At today's hearing, I called upon learned counsel for the parties to satisfy me that the appeals, in fact, were competent. I pointed out that the plaintiff had sued the defendant in the capacity of a landlord vis-a-vis his tenant. The suit was not based on title. Therefore, the subject-matter of the suit consisted only of the tenancy rights over the two shops in question. It may be that the market value of the two shops is Rs. 2,509/- or more. But it can hardly be said that the tenancy rights in question were worth Rs. 2,500/-, or the decree of the District Judge involves directly some claim to, or question respecting, property of like value. In this connection, it is significant to note that, according to the plaintiff, shop No. 3 was let out at Rs. 18/- P. M. and shop No. 4 at Rs. 9/-P. M. The suit was valued at Rs. 808/8/- (consisting of Rs. 384/- as the valuation of the ejectment relief, representing 12 months rent plus Rs. 424/8/- arrears of rent). The appeal to the District Judge was valued at Rs. 326/8/-. It is thus abundantly clear that the subject-matter of the suit consisted of (a) the defendant's liability to ejectment and (b) his liability to pay arrears ofrent All that the learned District Judge has done is to 'uphold the decree of the trial .Court, where-' by the defendant was to be ejected from shop No. 3 and to pay Rs. 60-8-0 as arrears of rent. By no stretch of imagination, can it be said that the decree of the District Judge goes any further. Nor would it be reasonable to hold that his decree involves directly some claim to, or question respecting, any other right in the' property. I consider that it would be over-straining the scope and purview of paragraph 32 (1) (a) (ii), Himchal Pradesh (Courts) Order, if we were to say that the decree of the District Judge affects any other rights in the shops. It is noteworthy that the District Judge has clearly expressed his opinion that the question of title was not involved in the suit and should not have been investigated by the Subordinate Judge.
5. In view of what has been said above, the subject-matter of the suit falls short of Rs. 2,500/-and, therefore, the second appeals do not lie.
6. At the request of learned counsel for the parties, the two second appeals were heard as revision petitions.
Second Appeal No. 56 of 53.
7. Learned counsel for Nazroo argued, firstly, that the District Judge has erred in holding that the question of title cannot be gone into lie contended that after the expiry of the tenancy, it was open to the defendant to deny he landlord's title. In this connection, he cited--'Ramaswami Thevan v. Alaga Pillar, AIR 1925 Mad 143 (A). There, the facts were that the-plaintiff's title was a defeasible one, liable to be defeated, at any time, by the entry of the paramount owner, namely, the Government. The plaintiff admitted that the paramount title vested in the Government. Under those circumstances, Wallace J., held:
'Section 116 of the Indian Evidence Act is no bar to a tenant showing that his landlord had not title at a date previous to the commencement of the tenancy, or that, since its commencement it has expired or has been defeated, because the bar operates only during the continuance of the tenancy, see--'Amma v. Rarnakrishna Sastri', 2 Mad 226 (B). In a case of eviction by the title paramount, actual and open surrender of possession to the intermediate landlord is not necessary. The principle rests on the covenant by the lessor for quiet enjoyment to the lessee.'
The facts of the present case are, however, different and above ruling is not applicable.
8. In 'Currimbhoy & Co. 'Ltd. v. L. A. Greet', AIR 1933 PC 29 (C), cited by the learned District Judge, their Lordships of the Privy Council observed that:
'Where the possession of a disputed colliery of both the defendants must be attributed to the possession given to one of the defendants by the plaintiff both defendants are barred by Section 116 from questioning the plaintiff's title until they have surrendered possession again to him.'
Learned counsel for the petitioner further cited--'Adyanath Ghatak v. Krishna Prasad Singh', AIR .1949 PC 124 (D). There, the facts were that the original tenancy between A and C was determined in 1928 by execution of an ex parte decree in B's favour and the subsequent payment of rent to A was not payment of rent and the possession of C was merely that of a licensee from B. In the peculiar circumstances of that case, their Lordships held that there was no question of C being estopped Under Section. 116, Evidence Act, as the tenancy between A and C had been determined in 1928. It is obvious, therefore, that this ruling is not applicable to thefacts of the present case and will not help the petitioner. In--'Chandrika Prasada v. B. B. & C. I. Rly. Co.', AIR 1935 PC 59 (E), their Lordships of the Privy Council observed that:
'Tenant cannot dispute his lessor's title, so long as he remains in possession under an agreement which he has made with them.'
In--'Raj Krishna Prasad v. Barabani Coal Concern Ltd.', AIR 1935 Cal 368 (F), the Division Bench of that High Court- held that:
'In a suit for rent as in a suit for ejectment against a tenant, -where the relationship of landlord and tenant is alleged to exist, it is not necessary that the plaintiff should set out his own title, and this is on the principle that the tenant is estopped from denying that his landlord, who put him in possession of the land, then had title so to do or that his landlord from whom he accepted a lease, then had title to grant the lease or that the landlord to whom he paid rent, then had title to receive the rents.'
'Section 116 of the Act precludes the lessees from disputing the lessor, who has put the lessee in possession, without first restoring possession.'
Under these circumstances, the learned District Judge was right in declining to go into the question of title, when the relationship of landlord and tenant had been admitted by the defe'ndant as far as shop No. 3 was concerned.
9. It was next urged by learned counsel for the petitioner that since the defendant was found by the learned District Judge to be a tenant holding over under Section 116, Transfer of Property Act, his would be deemed to-be a lease renewable from year to year. He contended that no proper notice to quit has been served upon him. In reply to this, learned counsel for the respondent pointed out that at the trial no suah objection was taken by the defendant. In--'Krishna Prasad v. Adyanath Ghatak', AIR 1944 Pat 77 (G), a Division Bench of that High Court pointed out:
'In a suit for possession and rent against thetenant the latter cannot for the first time in appealbe allowed to raise objection to sufficiency of noticeto quit after having failed in the first court on hisplea of title.'
Learned counsel further pointed out that notice toquit was served on the defendant on 9-2-1952, towhich the latter sent a reply on 14-2-1952. Thesuit was filed on 19-2-1952. Para 9 of the plaintmakes a reference to' the service of this notice. Inhis written statement, the defendant did not impugn the validity of the notice. As already stated,the defendant thought it proper to resist ejectmenton the ground of title but was unsuccessful. Underthese circumstances, bearing in mind the ruling reported earlier 'AIR 1944 Pat 77 (G)', this plea cannot be entertained.
10. No other point was argued. The so called second appeal, which was heard as a revision petition, is hence rejected with costs assessed at Rs. 25/- . (Rupees twenty five).
Second Appeal No. 1 of 54.
11. This was filed as a second appeal, but, for reasons stated in my order in second appeal 56 of 1953, this was heard as a revision petition. Learned counsel for the petitioner argued that the learned District Judge has erred in holding that tenancy was not established in respect of shop No. 4. Reliance was placed on certain bills and money-order receipts. Learned counsel for the respondent, on the other hand, pointed out that the Courts below have come to a concurrent finding to the effect that as far as this shop is concerned, the relationship of landlord and tenant has not been provedto exist. This is a concurrent finding of fact and,sitting as a Court of revision, I do not see reasonto interfere. The result is: this so called secondappeal, which was heard as a revision petition, isrejected with costs assessed at Rs. 25/-.