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Judgment
Sengottuvelan, J.—This second appeal is filed by the 1st defendant in O.S. No. 25 of 1977 D.M.C. Madurai challenging the legality and
correctness of the judgment of the Subordinate Judge of Madurai in A.S. No. 159/1978. The facts of the case are briefly as follows: The 1st
respondent herein and the plaintiff in the suit O.S. No. 23/1977 on the file of District Munsif of Madurai leased out portion of the property bearing
S. No 635/2 in Ammayanaickanur Village to the Appellant herein, namely, Ammayanaickanur Town Panchayat for the purpose of maintaining a
bus stand. The term of the lease fixed as per Ex. A1, dated 4th July, 1957 is five years and the monthly rent is Rs. 16 payable by the 5th of every
succeeding English calendar month. Though the period expired in 1962 itself, the 1st respondent allowed the appellant to be in possession of the
suit property on the same terms and conditions and as such the appellant is a tenant holding over in respect of the suit property. The appellant in his
turn had leased out some portions to respondents 2 to 5 in this appeal and defendants 2 to 5 in the suit. The major portion of the leased property,
namely, the vacant site, is used by the appellant as bus stand. The 1st respondent issued a notice dated 20th October, 1976 marked Ex. A2
terminating the tenancy by the end of December 1976. According to the notice, the first respondent stated that he required the premises for his
own use. The appellant herein sent a reply notice Ex. A3 dated 23rd November, 1976 denying the title of the first respondent to the suit property
and at the same time enclosing a cheque for Rs. 123 towards the arrears of rent for the period from March, 1976 to October, 1976. In view of the
denial of the title, which according to the 1st respondent is not bona fide, the 1st respondent filed a suit O.S. No. 23/1977 for possession and for
future mesne profits.
The case of the appellant-1st defendant in the suit O.S. No. 23/1977 is that the 1st respondent is not the owner of the suit property which is a
tank-poromboke. The village in which the suit property is situate was a zamin village and it was taken over by the Government of Tamil Nadu
under the provisions of Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948. There was settlement and survey proceedings
under the said Act and it was finally decided by the Government in O.S. No. 1982 Revenue dated 19th June, 1972, that the plaint schedule
property is a part of tank poramboke and the patta wrongly granted by the Revenue Board to the 1st respondent the plaintiff was cancelled. In the
above circumstances, the 1st respondent is no longer the owner of the suit property. The appellant has applied to the Government for assignment
of the suit land and the matter is pending. The 1st respondent has no subsisting title to the suit property and he has no locus standi to file the suit.
The lease under Ex. A1 was for the purpose of running a bus stand and the Panchayat also obtained permission under the provisions of the Tamil
Nadu Panchayat Act. The appellant has also obtained permission from the authorities to conduct the bus stand in the suit site. Respondents 2 to 5
had taken stalls in the bus stand from 1st April, 1976 to 31st March, 1979. The Panchayat was paying the rent till October, 1976 to the 1st
respondent only with a view to obviate unnecessary friction and it does not mean that the 1st respondent has got title to the suit property. A
contention was also taken that State of Tamil Nadu which is the owner of the suit property is also a necessary party to the suit and as such the suit
is bad for non-joinder of necessary party. A plea is also taken to the effect that the notice to quit is not valid. The 5th defendant-respondent
adopted the written statement filed by the 1st respondent.
The 1st respondent herein also filed a suit O.S. No. 193/1976 for injunction restraining the appellant and respondents 2 to 5 from leasing out
portion of the suit property to third parties. On a consideration of the pleadings of both sides in both the suits, learned District Munsif of Madurai
framed the following issues for trial :
1) Whether the plaintiff is the owner of the suit property?
2) Whether the plaintiff has locus standi to file this suit?
3) Whether the suit is bad for non-joinder of necessary party?
4) Whether the plaintiff is entitled to eject the 1st defendant from the suit property and take possession of the same?
5) Whether the plaintiff is entitled to get future damages from the 1st defendant as prayed for?
6) To what relief is the plaintiff entitled? The following additional issue is also framed :
1) Whether the notice to quit dated 20th October, 1976 issued by the plaintiff requesting the first defendant to vacate on 1st January, 1977 is valid
in law?
At the time of trial of the suit, issue No. 1 was not pressed by the respondent and so, no finding was given on the question as to whether the 1st
respondent is the owner of the suit property. On issues Nos. 2 and 3 the lower court came to the conclusion that the 1st respondent has got locus
standi to file a suit and the suit is not bad for non joinder of necessary parties. Though originally the patta was issued in the name of the first
respondent, the same was cancelled by the Board of Revenue as per Ex. B1 and the said order of cancellation was declared to be null and void as
per the judgment of this Court in Writ Petition No. 2908/ 1972. Hence, the lower court came to the conclusion that the patta issued in favour of
the first respondent stands and the 1st respondent has got locus standi to file the suit. On issue No. 4 the trial Court came to the conclusion that the
first respondent is entitled to eject the appellant from the suit property and take possession of the same. On issue No. 5 the trial court found that
the 1st respondent is entitled to future damages and left: the same to be decided under O.20, R. 12, C.P.C. On issue No. 6 the trial court found
that the first respondent is entitled to a decree for possession. After passing the decree the trial court also granted two mouths time for delivery of
possession and on the additional issue the trial court found that Ex. A2 notice to suit dated 20th October, 1976 (wrongly stated as 20th October,
1975 by mistake) is a valid notice ''o quit and hence answered the additional issue in favour of the 1st respondent. In view of the above said finding
the trial court granted a decree as prayed for. As against the judgment and decree in O.S. No. 23 of 1977 the 1st defendant filed an appeal in
A.S. No. 159/1976 on the file of District Court, Madurai which was subsequently numbered as No. 120/1978 as it was transferred to the file of
subordinate Judge, Madurai. Learned Subordinate Judge after considering the judgment of the trial court and the contentions of both parties
dismissed the appeal for the following reasons. The appellant recognised the title of the first respondent at the time of commencement of the
tenancy by executing rent deed Ex. A1 and subsequently he cannot deny the tenancy. The lower appellate court also held that there is no proof
that the first respondent has lost the title to the suit property. The 1st appellate court negatived the case of the appellant herein that the 1st
respondent had lost title on account of the order passed by the Board of Revenue as per Ex. P4, since the said order of the Board of Revenue has
been subsequently set aside by the High Court and in view of the orders passed by the High Court the 1st respondent continued to hold patta over
the suit land. Taking this view concurring with the findings of the trial court the first appellate court dismissed the appeal. As against the said
judgment and decree, the 1st defendant has filed the above second appeal.
Gokulakrishnan, J., at the time of admission had formulated the following substantial questions of law to be decided in this Second Appeal: 1)
whether the courts below failed to see that since the suit property is admittedly a tank poramboke by virtue of S.3 (b) of the Estate Abolition and
Conversion into Ryotwari Act, 1948 it vests with the Government free from all encumbrances, and as such the plaintiff has no title or interest in the
suit property to maintain a suit for ejectment? (2) Whether the Courts below applied erroneously the doctrine of estoppel in view of the rent
agreement being void and opposed to statutory provisions? (3) whether the courts below failed to consider the consequences of the orders issued
under Ex B3 and B.47.? (4) Whether the notice dated 23rd October 1976 issued by the plaintiff to the 1st defendant-appellant to vacate the suit
property is valid in law? (5) Whether the plaintiff has got subsisting title to the property under the provisions of the Estates (Abolition and
Conversion into Ryotwari) Act, 1948? (6) whether the appellant is estopped from denying the title of the respondent plaintiff? Under the provisions
of the Estates Land Act, lands in an estate are divided into Ryoti and non ryoti lands. The ryoti lands are lands in respect of which land holder can
issue patta to the ryots. In so far as non ryoti lands are concerned, the same are earmarked for the communal purpose and landholder is not
entitled to issue patta in respect of the same. It is admitted by both sides that the suit property is a tank bund land which is admittedly a non-ryoti
land. As per the decision reported in, Valathar Mooppanar v. Board of Revenue. 1966 1 M.L.J. 354 : 79 L.W. 205:
Ryotwari patta cannot issue in respect of a tank bund land. S. 11 of the Madras Estates (Abolition and Conversion into Ryotwari) Act which is the
only provision which could be resorted to by the ryots for the issue of a ryotwari patta does not enable the ryots to obtain a patta is respect of a
tank. It is manifest from S. 11 that a patta can issue only in respect of ryoti lands and it is too much to contend that a tank is a ryoti land, it is plain
from definition of ""ryoti land"" in the Madras Estates Land Act that a tank is outside the purview of ryoti land. It is abundantly clear from S. 3(g) that
a ryot is entitled only to such rights as were conferred on him under the Madras Estates (Abolition and Conversion into Ryotwari) Act and that Act
does not contemplate the issue of a ryotwari patta in respect of a tank.
In this connection how the first respondent purports to claim title to the suit property is relevant, since it has a bearing on the reliefs, claimed in the
suit. Since the above quest on had not been considered by both the courts below, to meet the ends of justice, the matter will have to be remanded
to the trial Court for considering the above question and then applying the principles, whether under the said circumstances, the title of the first
respondent can be denied by the appellant, will have to be examined. In this connection, the court can also take into consideration the subsequent
events with reference to the issue of pa(sic)ta as per the observations of a Single Judge of Jammu & Kashmir High Court in K. Halil Safi v. Asis
Bhat AIR 1960 J & K 132.
Both the Courts below concluded that the appellant is estopped from denying the title of the respondent. The first respondent relied upon S. 116
of the Evidence Act and the several decisions in support of his contention that the appellant is estopped from denying the title of the first
respondent. S. 116 of the Evidence Act is as follows :--
Estoppel by tenant--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; and of licensee of person
in possession no person who came upon any immovable property by licence 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 licence was given-
In the case reported in B. Kunwar v. Ranjit Singh AIR 1915 P.C. 96 : (1915) 2 L.W. 830, it has been held:
a tenant who has 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.
In the case reported in Aheleandi v. Himath AIR 1917 Cal. 498, the Division Bench of the Calcutta High Court held that--
A person let into possession of a land as a tenant for a term is not entitled, on the expiry of the term, to set up his title in the land against that of the
landlord without in the first instance going out of possession and restoring possession to the landlord.
In the case reported in Eledath Thavazhi, Karnavan and Manager Kunhunni Menon Vs. Eliangattil Sankara Valia Rajah Avargal, styled
Vannilasseri Utaya Kandan Theva and Another, . it has been held:
Where the relationship of landlord and tenant has once been created, it cannot be terminated by any adverse action taken against the landlord by a
third party, whether that party be the Govt. or some other rival claimant, and the tenant will still be estopped from denying the landlord''s title.
In the case reported in Jaikaran Singh Vs. Sita Ram Agarwalla and Others, . it has been held that:
a tenant who has been let into possession by the landlord cannot deny his landlord''s title as long as he has not openly restored possession to the
landlord. Until such restoration or surrender of possession the tenant will be estopped even from contending that the landlord has ceased to have
title subsequent to the commencement of the tenancy though S. 116 of Evidence Act would not in terms apply to such a case.
In the case reported in Atyam Veerraju and Others Vs. Pechetti Venkanna and Others, . it has been held that :
Under S. 116 of the Indian Evidence Act, during the continuance of the tenancy the defendants as tenants could not be permitted to deny the title
of the landlord at the beginning of the tenancy.
In the case reported in Smt. Hirabai v. Jiwanlal 1955 Nag. 234. it has been held that:
during the continuance of the tenancy S. 116 of the Evidence Act is not exhaustive of the rule of estoppel governing a landlord and a tenant. The
fact that the tenancy came to an end by reason of forfeiture and the landlord served a notice asking the tenant to vacate the house does not make
any difference to the applicability of the rule of estoppel which is grounded on the tenant being still on the premises which he had obtained from the
landlord. The estoppel continues as long as the tenant does not surrender possession to the landlord.
On behalf of the appellant reliance is placed upon the case reported in Lal Chand v. Padamchand AIR 1963 Raj 209 where a single Judge of the
Rajasthan High Court has held that :
S. 116 of the Evidence Act, 1872, prohibits the tenant of immovable property from denying the title of his landlord to such immovable property at
the beginning of the tenancy. That section imposes no bar on a tenant where he seeks to question the title of his landlord on the ground that after
the tenancy had begun, it had come to an end on account of certain events which had happened subsequent to the establishment of the tenancy. It
must follow as a corollary that where the tenant does succeed in showing that the landlord''s title has in fact come to an end, the plaintiff''s suit for
recovery of rent based on the relationship of landlord and tenant is bound to be dismissed
The above question had been considered in several earlier cases also. In the case reported in AIR 1937 251 (Privy Council) ., the Privy Council
has observed as follows:-
The section postulates that there is a tenancy still continuing, that it had its beginning 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 the particular landlord had at that date a title to the property. In the
ordinary case of a lease intended as a present demise--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 the reversion, though in such cases there may be other grounds of estoppel, e.g. by attainment,
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.
In the case reported in Rev. Luckman Chaplain Vs. Pearey Lal, it has been held that:
the tenant''s denial of the landlord''s title is related to facts which have happened subsequent to the commencement of the tenancy, the bar of
estoppel does not come into operation and it is open to the tenant to plead that the title to the landlord has passed to the Government, so that he
has no right to realise rent.
In the case reported in Mohendra Nath Haldar Vs. Mohendra Nath Sardar, . it has been held that:
a tenant could not be prohibited from resisting a claim for rent by showing that the relationship of landlord and tenant had come to an end
subsequent to the commencement of the tenancy.
In the case reported in John Nadjarian Vs. E. F. Trist, . it has been hold that:
When either through ignorance of title of the landlord or by fraud in the matter of execution of the Kabulayat the tenants had atoned to him, then
they are not altogether estopped, but could show that the landlord had no title either when the kabulayat was executed or attornment made by
payment of rent, and it was competent to the tenants to show that the landlord had no title at the date when the tenants attorned to him.
In the case reported in Guruswamy v. Ranganathan AIR 1954 Mad. 452. it was held that:
Estoppel in S. 116 of the Evidence Act was restricted to the denial of title at the commencement of the tenancy and therefore it would be open to
the tenant even without surrendering possession to show that since the date of the tenancy the title of the landlord came to an end or that he was
evicted by a paramount title holder or that ever though there was no actual eviction or dispossession from the property, be had attorned to the
paramount title-holder under a threat of eviction from him.
In the case reported in Annamalai Chettiar v. Molaiyan AIR 1970 Mad. 396: 82 L.W. 716. it has been held:
the estoppel contemplated by S. 116 of the Evidence Act is restricted to the denial of title at the commencement of the tenancy and by implication,
it follows that a tenant is not estopped from contending that the landlord had no title before the tenancy commenced or that the title of the lessor
has since come to an end.
From the facts of this case, it is seen originally a patta was granted in favour of the first respondent by the Board of Revenue and the same was
subsequently cancelled by the Government. The said cancellation was set aside by the High Court and the High Court directed the settlement
authorities to decide the matter afresh and it is also seen that an enquiry relating to the issue of patta is pending and both sides represent that the
matter has not been concluded. If ultimately Ryotwari patta is issued to the first respondent then he may be entitled to a decree for possession as
prayed for if the other conditions laid down under the Transfer of Property Act are satisfied. If Ryotwari patta is issued to the first respondent then
applying the principles laid down in the above decisions the trial Court will have to decide whether the appellant can deny the title of the first
respondent without actual delivery of possession and then come to a conclusion regarding the reliefs prayed for in the suit. In this view, the matter
will have to is remitted to the trial court.
Hence the judgment and decree of the lower appellate Court are set aside and the matter is remitted back to the trial court for fresh disposal in the
light of the observations made above. There will be no order as to costs. The court fee paid on the memorandum of second appeal is directed to
be refunded to the appellant.