Kailash Kumar and Another vs Banarsi Das Gupta

K.V. Gopalakrishnan Nair, J.—The Petitioners challenge in this revision the correctness of the order passed by the City Judge at Jammu

declining permission to them to adduce certain evidence in a suit instituted against them for ejectment by the Respondent.

The defendants have been holding certain shop premises as the tenants of one Muni Lal who sold the premises to the plaintiff-respondent. On

the strength of this sale deed the plaintiff sued for (sic) of the defendants on the ground that he required the shop for his own use. The defendants

set up in their written statement that they were not aware of the sale of the property by Muni Lal. They pleaded further that they had constructed a

room on the property let out to them and that in case of eviction they had to be paid the value of that room or be permitted to dismantle it.

After the plaintiff had adduced evidence on his side the defendants called upon Muni Lal to produce certain wills and rent deeds. On his

submission that those documents were not in his possession or power, the court permitted the defendants to produce secondary evidence. The

defendants thereupon obtained registration copies of two wills, one executed by Hazari Mal to Amar Devi on 2nd Maghar 1990 and the ether

executed by Amar Devi to Muni Lal (plaintiff's vendor) on I8th Assuj 1999.

It was found that in the will executed by Amar Devi mention was made of an unregistered will of 25th Baisakh 1998 executed by Hazari Mal to

Amar Devi. Having come across such a recital in the will the defendants moved the court for permission to summon four relatives of Amar Devi to

produce the unregistered will. This prayer was opposed by the plaintiff on the ground that the defendants' attempt was merely to protract the

litigation and thereby remain in possession of the property to the detriment of the plaintiff. The trial court, after going into the matter in somewhat

elaborate detail, refused permission to the defendants to summon production of the alleged unregistered will or to tender other evidence in respect

of it. The legal basis stated for this order of the trial court was that the defendants being the tenants of Muni Lal (plaintiff's vendor) were estopped

u/s 116 of the Evidence Act from denying the title of the plaintiff who claimed to be the representative of Muni Lal by assignment.

This legal proposition on which the lower court's order has been founded is assailed by the Petitioners-defendants as erroneous. I am inclined to

accede to their contention. No doubt, Section 116 of the Evidence Act enacts a rule of estoppel against a tenant during the continuance of the

tenancy from denying that his landlord had at the beginning of the tenancy a title to the property leased. But there is nothing in Section 116 which

extends this rule of estoppel to a person who claims to be the representative of the landlord by assignment.

By merely purchasing the landlord's interest the purchaser does not, ipso facto, become a landlord entitled to the benefit of Section 116. A

landlord-tenant relationship will have to be established between the purchaser and the tenant before Section 116 can successfully be called in aid.

If the tenant attorns to the purchaser, thereby recognizing him as his landlord, the provisions of Section 116 would unquestionably come into play.

But in the absence of any manner of privity of contract between the purchaser and the tenant the former cannot rely upon Section 116 and seek to

raise estoppel against a tenant from questioning his title.

In the instant case it is common ground that the defendants did not pay any rent to the plaintiff nor did they attorn to him in any manner. In fact,

they have pleaded complete ignorance of the purchase of the landlords' interest by the plaintiff. In these circumstanses Section 116 does not

preclude the defendants from challenging the plaintiff's title.

This, however, does not appear to be sufficient to dispose of this revision. It was urged for the Respondent that the defendants did not plead in

their written statement, even faintly, that the plaintiff had not acquired the landlord's title by purchase. All that they stated in the written statement

was that they were not aware of the purchase by the plaintiff and were, therefore, not in a position to admit it. This is quite different from stating

that the plaintiff did not acquire the landlord's interest by assignment.

In the court below the plaintiff proved the sale deed executed in his favour by Muni Lal who, admittedly, is the landlord of the defendants. If it was

the case of the defendants that Muni Lal himself was not entitled to alienate the property they ought to have specifically pleaded so before seeking

to call evidence to that effect at the trial. By allowing the defendants to adduce evidence outside their pleadings prejudice will be caused to the

opposite party and, the trial would also be embarrassed.

The defendants-petitioners' learned Counsel frankly submitted at the bar that the only object in calling evidence which was disallowed by the court

below was to try to show that Muni Lal (defendant's landlord) had no right to sell the property to the plaintiff-respondent. As no such case was

pleaded I think the trial court was justified in declining permission to the defendants to make out a new case. As pointed out in Trojan and Co. Ltd.

Vs. Rm. N.N. Nagappa Chettiar, at p. 240:

It is well settled that decision of a case cannot be based on grounds outside the pleadings of the parties and it is a case pleaded that has to be

found.

In Eshan Chunder Singh v. Shama Churn Bhutto 11 Moo Ind App 7 (PC) Lord Westbury observed:

It will introduce the greatest amount of uncertainty into judicial proceedings if the final determination of causes is to be founded upon inferences at

variance with the case that the plaintiff has pleaded, and, by joining issue in the cause, has undertaken to prove.

They (their Lordships of the Judicial Committee) desire to have the rule observed, that the state of facts, and the equities and ground of relief

originally alleged and pleaded by the plaintiff, shall not be departed from.

I may also notice the decision in AIR 1930 57 (Privy Council) where Viscount Dunedin pointed out that where a claim has been never made in

the defence presented no amount of evidence can be looked into upon a plea which was never put forward.

In the present case any infirmity attaching to the sale of Muni Lal was not pleaded and not put in issue and cannot, therefore, be sought to be

established by evidence which will necessarily have to travel beyond the pleadings and outside the scope of the issues.

It was, however, suggested by the defendants' learned Counsel that there is a legitimate case for amending the written statement. I am not here

directly concerned with the question of amendment of the written statement; it is a matter to be sought for in the trial court and to be adjudged on

merits by that court.

Lastly, an argument which is related to the question of estoppel u/s 116 of the Evidence Act was advanced on behalf of the Respondent. It

was contended that the defendants still continue to be the tenants of Muni Lal and cannot, therefore, deny Muni Lal's title to the suit property. The

unregistered will which was sought to be proved by the defendants in the lower court, would, according to the showing of the defendants

themselves, assail Muni Lal's title because the defendants' stand was that according to that will Muni Lal had no right to alienate the property.

Thus, it was argued that the defendants could not, even if they had amended the written statement, escape the bar of estoppel enacted in Section

I do not think this line of reasoning ought to prevail. A tenant is only estopped from denying the subsistence and validity of an estate in the

landlord sufficient to warrant the demise; he is not further estopped.

The defendants may well concede that the landlord, Munilal, had such an estate as did enable him to lease out the suit property, but they can, at the

same time, deny that he had any larger right which entitled him to alienate the property. Such a stand will not fall within the mischief of Section 116

of the Evidence Act. I am not therefore prepared to say that even a suitable amendment of the written statement will not furnish an opportunity to

the defendants, in the instant case, to show that Munilal had no right to alienate the property to the plaintiff.

In view of the foregoing, the revision fails and is dismissed but without making any order as to costs in the circumstances of this case.