S.A.A. Annamalai Chettiar vs Molaiyan and Others

Ganesan, J.—Annamalai Chettiar, the plaintiff in Small Cause Suits Nos. 274, 275 and 276 of 1967 is the revision petitioner and he is

aggrieved that the District Munslf of Pudukottai had dismissed all the three suits filed by him for recovery of rent from each of the respondent-

defendants.

It is not disputed that the respondents were tenants under the Petitioner and were giving melwaram to him at the rate of 40:60 and one bundle of

straw out of every five bundles till the year 1966 and that they have ceased paying the rent on the ground that the village Melur wherein the suit

lands are situated and which is a minor inam had been abolished by Madras Act 30 of 1963 and the consequent notification made on 22-1-1966,

that, thereafter, the rights and obligations of the petitioner-plaintiff as inamdar had been completely extinguished and that he is not therefore, entitled

thereafter to the melwaram from the respondents.

The learned District Munsif had upheld the contention of the respondents and had accordingly dismissed the suits.

I am clear that the learned District Munsif had acted improperly in trying the suit, the disposal of which, I will presently show, depends upon the

proof or disproof of title to immovable property and that the proper course was to have returned the plaint for re-presentation to the original side.

Of course, he is not alone to blame. The defendant has not taken any such plea in his written statement, and the learned counsel for the petitioner

and the respondents have frankly conceded that the question of estoppel ought to have been also raised and disposed of during the trial Itself.

Both the learned counsel agree that, if the respondents are estopped from deriving the title of the petitioner to the suit properties, it would have

been perfectly Open to the learned trial Judge to have decreed the suits for recovery of rents, as it is not disputed that the respondents were

cultivating the lands as lessees under the petitioner till the introduction of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act

(30 of 1963) and the consequent notification on 22-1-1966.

I permitted the learned Counsel to argue the question of estoppel, while the learned counsel for the petitioner contends that the respondents are

estopped by virtue of provisions of Section 116 of the Indian Evidence Act from disputing the title of the petitioner to the suit lands, the

respondents'' learned counsel states that the law of estoppel embodied in Section 116 of the Indian Evidence Act does not apply to the present

cases, as respondents are not disputing the fact that the petitioner had title to the suit properties at the commencement of the tenancy and that they

are entitled to show that, subsequent to the tenancy agreements, the petitioner''s title to the suit properties had become completely extinguished by

Act 30 of 1963 and the consequent notification In 1966 and that, consequently, his right to claim melwaram from the respondents from the date of

the Act and the date of the notification has been completely extinguished and that the tenancies have been put an end to by the same Act and

notification.

In Mt. Bilas Kunwar v. DesraJ Raniit Singh, AIR 1915 PC 96 the Privy Council has laid down that a tenant, who has been let into possession,

cannot deny the landlord''s title, however defective it may be, so long as he has not openly restored possession by surrendering to his landlord. In

Muthu Naiyan v. Sinna Sama Vaiyan, ILR(1905) Mad 526, this Court has laid down that a tenant is estopped from denying the title of the

landlord without first surrendering possession.

Section 116 of the Evidence Act clearly says that the tenant is estopped from denying, during the continuation of the tenancy, that the landlord

had title at the commencement of the tenancy. Possession and permission being established, estoppel would bind the tenant during the continuation

of the tenancy and until he surrenders his possession. The words ""continuation of the tenancy"" have been interpreted to mean ""during the

continuation of the possession that was received or under the tenancy in question"", and Courts have repeatedly laid down that estoppel operates

even after the termination of the tenancy so that a tenant who had been let into possession, however, defective it may be, so long as he has not

openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenancy. It has been noted that, under Clause

(q) of Section 108 of the Transfer of Property Act, the lessee is bound to put the lessor into possession on the termination of the tenancy.

The estoppel contemplated by Section 116 of the Indian Evidence Act is, as I have observed, 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.

In Seth Fida Hussain Vs. Fazal Hussain and Others, , the Madhya Pradesh High Court has ruled that it Ss open to the tenant to plead that,

after the expiration of the lease the landlord''s title had terminated by transfer or otherwise or has been lost or defeated by title paramount. In

K.S.M. Guruswami Nadar Vs. N.G. Ranganathan, a Division Bench of this Court constituted by Satyanarayana Rao and Rajagopalan, JJ. has

stated, after an elaborate review of the authorities, that It is open to the tenant, even without surrendering possession to show that, since the date of

tenancy, the landlord''s title had come to an end or that he (the tenant) was evicted by paramount title holder or that, even though there was no

actual eviction or dispossession from the property, under a threat of eviction he had attorned the tenancy. In a case of eviction by the true owner or

attornment in case of threat by him, the old tenancy ceases and the plea of estoppel will not avail. In the case of attornment the act must not be

voluntary but must be under compulsion. The third party must have a good title and the tenant must have quitted the property against his will.

In Silambani Sri Chidambara Vinayagar Devasthanam Vs. Duraisamy Nadar and Another, , Natesan, J. has observed that there can be no

controversy that the estoppel u/s 116 of the Evidence Act is restricted to the denial of the title of the landlord at the commencement of the tenancy

and that it is open to a tenant even without surrendering possession to show that, since the commencement of the tenancy, the title of the landlord

has come to an end.

The learned counsel for the petitioner relies upon the decision of a Division Bench of this Court in Thavazhi v. Sankara, AIR 1918 Mad 285

and pleads that, in view of this decision, the decision of Natesan, J. on the question of estoppel, especially his observation that there was no

necessity for the tenant to surrender possession before denying the title of the landlord subsequent to the commencement of the tenancy, requires

reconsideration. In that case the Division Bench has observed that tenancy cannot be terminated by any adverse action taken against the landlord

by a third party, whether the third party be a government or some other rival claimant and that the tenant will still be estopped from denying the

landlord''s title. The learned Judges dissented from the view taken by this Court in Ammu v. Ramakrishna Sastri, ILR(1878) Mad 226 and in

Hattikudur Narain Rao and Others Vs. Andar Sayad Abbas Sahib, wherein it was held that there was no question of any estoppel, when the

Deputy Collector declared the land which was in the possession of a tenant under a landlord to be the property of the Government and granted

patta to the same tenant and made him a ryot of the government.

I am unable to follow the decision of Eledath Thavazhi, Karnavan and Manager Kunhunni Menon Vs. Eliangattil Sankara Valia Rajah Avargal,

styled Vannilasseri Utaya Kandan Theva and Another, as there is preponderant authority in support of the opposite view taken by this Court in

K.S.M. Guruswami Nadar Vs. N.G. Ranganathan, and Silambani Sri Chidambara Vinayagar Devasthanam Vs. Duraisamy Nadar and Another,

cited supra. These two latter decisions are sound in principle and are in consonance with the decisions of the other High Courts.

Applying these principles, it appears to me clear that the respondents are not barred from invoking the doctrine of estoppel in the present

instance. The respondents do not seek to assert that the petitioner had no title to the suit lands at the commencement of the tenancy; and their only

contention is that, once the commencement of the tenancy, the petitioner''s right and title to the land had been extinguished by the introduction of

the Act 30 of 1963 and the consequent notification of the year 1966. In my view, the respondents are entitled to show without first surrendering

possession that subsequent to the commencement of their tenancies the petitioner''s title to the suit properties and consequently the tenancies have

come to an end. It is therefore, obvious that the petitioner cannot succeed in these suits merely on the strength of tenancy agreements entered into

by the respondents in respect of the suit lands, and can succeed in recovering rents for the year 1966 and later years only by showing that, in spite

of the introduction of Act 30 of 1963 and the consequent notification in the year 1966, he continues to hold the title of the suit lands and that the

tenancies have not become extinguished.

I am clear that, in these circumstances, the Trial Court ought to have declared to proceed with the trial and should have returned the plaint to

be represented on the Original Side of that Court u/s 23 of the Provincial Small Cause Courts Act. The reasons are briefly these:

Section 23(1) of the Provincial Small Cause Courts Act runs thus:--

Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes

depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any

stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.

While interpreting this section, the Calcutta High Court has in Sadek Ali Vs. Samed Ali Serang, made the following observations.

In the Second Schedule to the Provincial Small Cause Courts Act (Act 9 of 1887) great care has been taken to exclude from the cognizance of

the Small Cause Courts of suits in respect of immovable property whether for possession or declaration or partition or otherwise with small

exceptions as regards certain rents suits. In effect rights or interests in immovable properties are legitimately excluded, but as questions of this

character may arise incidentally in small cause suits, a facultative provision is made by Section 23 enabling the Small Cause Court to send the

matter to ordinary Civil Court, but not obliging it to do so.

With great respect I am inclined to follow the said decision. A Small Cause Court is evidently competent to decide a question of title if it arises

incidentally but its decision on a question of title being a summary one cannot be final. The object of Section 23 of the Provincial Small Cause

Courts Act is to relieve the Small Cause Court from going into complicated and intricate questions of title. Normally a final decision on a question

of title is . based upon a full and complete record of the entire evidence adduced by the parties and would be subject to appeal and even to second

appeal and would ordinarily be res judicata between the parties; and the questions involved are likely to be complicated and difficult. In such cases

the Small Cause Court, though competent to decide incidentally the question of title in that particular case, must exercise with discretion the power

of returning the plaint to be presented to the Original Court which would have jurisdiction to so decide on that title finally.

In this case it is not disputed that the question of title to the suit properties is complicated and difficult. There Is considerable scope for

controversy as to whether 22-1-1966 the date of the publication in Exhibit A-1 is the appointed day when the Act 30 of 1963 came into force and

this involves the further question whether the Pudukottai (Settlement of Inams) Act (Act 23 of 1955) has no application to minor inams.

Considerable amount of arguments is also likely to be addressed on the effect of the proviso to Sub-section (d) of Section 3 of Act 30 of 1963

which runs as follows:--

Provided that the Government shall not dispossess any person of any land in the minor inam in respect of which they consider that he is prima

facie entitled to a ryotwari patta pending the decision of the appropriate authority under this Act as to whether such person is entitled to such

patta.

It is also contended by the learned counsel for the petitioner that, even if the Act had extinguished the petitioner''s rights to the suit property, the

petitioner''s suit claims cannot be defeated because his possession had not been disturbed by the Government since the notification as he is entitled

to patta. This position is seriously disputed by the learned counsel for the respondents.

Admittedly these complicated questions have to be resolved in disposing of the suit claims and I am satisfied that this cannot be done in

satisfactory manner if dealt with in a summary fashion on the small cause side. The question of title is vital to both the parties to these suits and it is

but proper that it should be decided on the entire evidence fully recorded and that the parties should have the right of a first appeal and if

permissible a second appeal also. I am clear that the learned trial Judge had exercised his discretion wrongly and that the only proper course which

he ought to have adopted was to have invoked Section 23 of the Provincial Small Cause Courts Act and to have returned the plaint to the original

side of that Court which can deal finally and effectively with the question of title.

In the result all these three Civil Revision Petitions are allowed, but under the circumstances without costs; and the judgments and decrees in S.

C. S. Nos. 274. 275 and 276 of 1067 are set aside and all these cases are sent back to the Court of District Munsif of Pudukottai with a direction

that the plaints in these three cases should be returned to the petitioner for being re-presented to a Court having jurisdiction to determine his title.