Dangam Vanket Rajam vs Peddi Gundla Rajiah

Manohar Pershad, J.—Dangam Venkat Rajam, Plaintiff-Appellant, filed a suit for ejectment and recovery of the rent against Peddi Gundla Rajia with the Allegation that the Defendant took the ''Gudsi'' (hut) on rent from the Plaintiff after executing a Rental Deed. The period of lease has expired but the Defendant has neither returned the possession of the hut nor is he paying the rent. Defendant in his written statement admitting the execution of the lease, stated that the Defendant executed the lease relying on the statement of the Plaintiff that he is the owner of the Gudsi, but as a matter of fact, the Plaintiff is not the owner of the Gudsi, so he is not entitled either to the possession or the rent. On these pleadings, certain issues were framed by the trial Court. Parties led evidence. On a consideration of the evidence, the trial Court decreed the Plaintiff''s suit. Defendant went in appeal which has been allowed. Hence this second appeal on behalf of the Plaintiff. I heard the argument of the learned Advocate on behalf of the Appellant. The other side is not represented here.

In this appeal it is argued that the appellate Court has erred in dismissing the Plaintiff''s suit by holding that the question of estoppel does not arise in the case, as it has not been proved -on behalf of the Plaintiff that possession was given to the Defendant in furtherance of the Rental Agreement, and mere execution of the Rental Deed would not entitle the Plaintiff to a decree. Pollowing up the contention it is urged that estoppel exists in both cases: whether possession was given in furtherance of the agreement or the Defendant was in possession before the Rental Agreement. Reliance is placed on the cases of � Dawood Khan v. Ahmed Sher Khan 36 DLR 486 (A); � Chandoo v.Parbhoo AIR 1921 Nag 118 (1) (B); � Ramzani v. Bansidhar AIR 1935 Oudh 385 (C) and � Venkata Chetty V. Aiyanna Goundan AIR 1917 Mad 789 (FB) (D).

In order to appreciate the argument of the learned advocate for the Appellant, a reference to Section 116, Evidence Act is necessary which runs thus:

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 no person who came upon any Immovable property by the 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." Section 116 does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between the landlord and the tenant. It provides that neither a tenant nor any one claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property. Two conditions are essential to give rise to estoppel: firstly possession of the property must have been given to the tenant and secondly such possession must have been taken with the permission of the landlord. The fact whether in a case where possession has not been given in furtherance of the contract but. the person had been in possession before, the question of estoppel would arise or not is one which has to be considered. The English rule emphasises the fact of a tenant being let into possession by the landlord as an essential foundation of a tenant''s estoppel.

In the case of � Lal Mahomed v. Kallanus 11 Cal 519 (E); � Faqir Mohammad Vs. Bhaggu Khan and Others, ; � Ramzan v. Arura Mai .108 Ind Cas 182 (Lah) (G) & � Rikhikesh v. Mela-ram AIR 1923 Lah 483 (H), it has been held by the said Courts that a tenant is estopped to deny his landlord''s title only if he was let into possession by the landlord and that there is no estoppel against the tenant if he was already in possession.

A contrary view has, however, been taken in the case of � AIR 1937 251 (Privy Council) ; � AIR 1937 505 (Oudh) and � Krishnarao Raghunath Yardi Vs. Ghamon Ghama Valad Chima, that if the relation of the landlord and the tenant is established, the tenant is estopped from denying the landlord''s title even though he was not put into possession by the landlord. Same is the gist of the authorities cited by the Appellant and I do not wish to discuss them in detail.

Thus after a careful consideration I am of the opinion that the real question to bo decided in such cases is not whether the tenant was let into possession by the landlord but whether a valid tenancy has arisen. The tenant may show that no valid tenancy has been created between the landlord and himself because the lease was executed under a mistake or in consequence of a fraud, misrepresentation or coercion practised on him by the landlord. But in the absence of any such circumstance as would avoid a contract, the execution of a lease or a verbal agreement to hold as a tenant, would constitute a valid tenancy and bring in the estoppel. I am supported inthis view by the case of � Krishnarao Raghunath Yardi Vs. Ghamon Ghama Valad Chima, ''. The principle of estoppel applicable will be the same whether a man was let into possession or whether he has continued Into such possession by specific agreement between himself and the landlord.

In this case, a new tenancy may begin though the tenant has been in possession prior to that. The distinction between a case in which the tenant is let into possession by the person whose title he himself denies and that in which the person whose title he denies did not let him into possession, is that, in the former case the estoppel is complete, that is, a tenant cannot deny the landlord''s title asserting that his tenancy continues while in the latter the estoppel is not complete in the sense that tenant may evade it by showing circumstances which would vitiate the agreement between him and the landlord. The estoppel exists in both the cases.

Applying this test, to the present suit, I find that the Courts below have held the execution of the lease-deed to be proved. When the execution of the leaae-deed is established, the fact whether possession was given in furtherance of the lease-deed or that the Defendant was in possession before the execution of the lease-deed does not become so material as in both cases the doctrine of estoppel would become applicable.

In view of this, I cannot uphold the judgment of the appellate Court. Appeal is, therefore, allowed; judgment of the first appellate Court is set aside and that of the trial Court restored. As the other side is not represented here, I do not wish to pass any order regarding the costs.