Kallanus vs Lal Mahomed

McDonell and Macpherson, JJ.—This suit was brought to recover arrears of rent based on a kabuliat. The defendant admitted having given the kabuliat, but stated that he had done so under coercion. He also raised the further defence that at the time when the kabuliat was executed the plaintiff had no title to the share claimed by him. The Munsiff was of opinion that u/s 116 of the Evidence Act the defendant could not, if the kabuliat stood, deny the plaintiff''s title. So he confined himself to the simple issue as to whether the kabuliat was obtained by coercion or not, and finding, for the reasons given in his judgment, that it was so obtained, he dismissed the plaintiff''s suit. The Subordinate Judge, on appeal, held that the evidence to prove coercion was not reliable, and that the defendant could not avoid the contract, as he had ratified it by paying rent. He, therefore, reversed the Munsiff''s judgment and decreed the plaintiff''s suit.

In second appeal it was urged before us that by giving the kabuliat the defendant was not estopped from showing that the plaintiff had no title, and that the lower Appellate Court ought to have allowed the defendant to prove the title of the persons set up by him, notwithstanding the execution of the kabuliat in favour of the plaintiff who claims under a derivative title. We consider that, upon the facts found, the defendant is not estopped by Section 116 of the Evidence Act, from denying the plaintiff''s title. The words "at the beginning of the tenancy" in that section can only apply to cases in which the tenants are put into possession of the tenancy by the person to whom they have attorned, and not to a case like the present where the tenants have previously been in possession. Possession in this case was really from the ryot defendant to the plaintiff, and not from the plaintiff to the defendant. Further, it cannot be said that there was any such contract between the parties as would estop the defendant from denying the plaintiff''s title inasmuch as no consideration was given. Had the plaintiff inducted the defendant into possession, the giving of the possession would have been the consideration; but the defendant was in possession before, and all that he did was to give a kabuliat to a person claiming a derivative title from the last owner. This title the defendant now wishes to dispute, and we think that he is entitled to do so. We, therefore, set aside the judgment of the Subordinate Judge, and direct that the case be remanded to the Munsiff to allow the defendant an opportunity of proving the title of the persons set up by him. Each party will be allowed to adduce fresh evidence, but the onus of proving this will, of course, lie upon the defendant. The costs of this appeal will follow the result.