Susrutha Pharmacentical Corporation vs Mathai Iype

Unnikrishna Kurup, J.—These three second appeals have been filed by the plaintiff in O.S. Nos. 169 of 1958, 65 of 1959 and 77 of 1958 respectively on the file of the Munsiff''s Court of Thodupuzha. The appellant in all the three appeals is the Susrutha Pharmaceutical Corporation Limited (Now in Liquidation) represented by Liquidator. The appellant-Corporation obtained on kuthakapattom lease 27 acres of Land from the Government of Kerala for the purpose of growing medicinal herbs. The appellant sub-leased portions of the land to the respondent under Exts. P-1 dated 24-4-1956 and 15-10-1955. The subject matter of second appeal Nos. 679 and 680 of 1965 is the property comprised in Exts. P-1 and P-4. Second appeal No. 1154 of 1965, it has been conceded, relates to portions of the property covered by Ext. P-1. In O.S. No. 169 of 1958 filed on the foot of Ext. P-1, the prayer was for recovery of arrears of profit due for the year 1956-57, a settlement of the account for the yield for 1958 and the appointment of a receiver. In O.S. No. 65 of 1959 the plaintiff sought recovery of possession of the property with mesne profits and in O.S. No. 77 of 1958 the relief sought for was for permanent injunction to restrain the defendants from entering possession of the property.

The main contention raised by the defendants in the three suits which give rise to these second appeals was that the plaintiff had lost his title to the property by reason of the fact that the Government had cancelled the kuthakapattom grant for contravention of the provisions of the kuthakapattom lease.

The trial court accepted this contention of the defendants, but granted B relief to the plaintiff in respect of the claim for rent prior to the date of cancellation of kuthakapattom grant. The prayer for recovery of possession and injunction where disallowed. In the appeals before the subordinate judge, which were disposed of by a common judgment, the decision of the trial court was substantially confirmed.

The contention now put forward by the appellant is that the respondent, who had obtained possession under Exts. P-1 and P-4 was legally precluded from raising the contention that the appellant had no title to the property and that even though the kuthakapattom lease has been cancelled by the Government, possession had not been recovered from the appellant by the Government, and therefore, the suit should have been decreed, It was alleged by the appellant''s learned counsel that the kuthakapattom grant had been cancelled on 20-1-1956, that the lease deed (Ext. P-1) was on 24-4-1956, i.e.; subsequent to the cancellation of the kuthakapattom grant and u/s 116 of the Evidence Act the respondent was estopped from denying the title of the landlord as on the date of the lease. On a perusal of the records, however, it was found that this contention of the learned counsel for the appellant was factually wrong, and that the kuthakapattom grant was cancelled by the Government only on 5-8-1961-Ext D-l dated 27-2-1962 (and not 5-8-1961 as shown in the appendix to the trial court''s judgement) is a copy of Government Order G.O. Ms. 183 issued by the Revenue Department. This document recites that in G.O. Ms. 747 dated 5-8-1961, Government had ordered the cancellation of the lease of 27 acres of land granted to the Susrutha Pharmaceutical Corporation Ltd., and that the said Corporation had filed a petition for re-consideration of the Government Order. The only modification brought about by the new order dated 27-2-1962 was that the Government allowed the appellant-corporation to retain 8.59 acres of land, which was directly in the possession of the appellant, and limited the operation of the cancellation to the remaining extent out of the 27 acres. It is common case that the lands which formed the subject-matter of these second appeals are situate outside the 8.59 acres directly in the possession of the appellant-Corporation. It follows that the kuthakapattom grant in respect of these lands was cancelled subsequent to the leases Exts. P-1 and P-4 and that the estoppel u/s 116 of the Evidence Act will not apply to these lands. It is well-settled that the words "at the beginning of tenancy" in section 116 of the Evidence Act do not prohibit the tenant from raising a contention that subsequent to the date of the tenancy the landlord has lost his title to the property. The appellant''s counsel rightly did not dispute this proposition. It would follow that the tenant in these case is therefore entitled to put forward the contention that his landlord has lost his title to the property subsequent to the date of the lease by reason of the cancellation of the kuthakapattom grant by the Government.

The second contention raised by the learned counsel for the appellant is that although the kuthakapattom grant had been cancelled by the Government no steps have been taken for actually recovering possession from the appellant is therefore entitled to maintain an action against his tenant by reason of his possessory title. In support of this contention, he sought to rely on certain observations of the Privy Council in Krishna Prasad v. Baraboni Coal Concern. The contention is that the tenant can raise only a plea of dispossession by title paramount and that is not open to the tenant to contend that his lessor had no title to the property. We are afraid the decision of the Privy Council does not support this contention of the appellant. The following observations clearly indicate that it is open to a tenant to plead that his lessor had lost his title to the property:

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 attornment, acceptance of rent, etc. In this sense it is true though 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 had since come to an end.

(Underline ours)

For the respondent, the decision of the Travancore-Cochin High Court in Velayudhan Pillai Vs. Ouseph and Another, has been relied on. That was a case where the lessor''s right to the property was sold in execution of a decree and the tenant contended that the lessor was not entitled to recover possession of the properly. The court held that the estoppel of a tenant against questioning the title of the lessor relates only to the date when the lease was granted and that it is competent to a tenant to plead that subsequent to the lease the lessor lost his title. It was also held that although the auction purchaser had not applied for or obtained delivery of possession of the property through court in execution of the sale certificate, the original lessor whose rights have been sold in execution did not have any title or interest in the property. It is clear from the above decision that dispossession of the appellant is not necessary to enable the respondent tenant from denying his title.

In Woodfalls Law of Landlord and tenant, Vol.1, Twenty sixth Edition, at page 17, the following observations are found.

The tenant may, however, show that his landlord''s title has expired, so an actual Eviction by title paramount puts an end to the estoppel. It seems that a tenant showing that the landlords title has expired need not actually have given up possession. The tenant may show that since the demise the landlord has assigned or leased the reversion to another.

It is argued by the Counsel for the respondent on the basis of the above observations that the appellant''s right to reversion has been lost by reason of the kuthakapattom grant in his favour being cancelled and he is therefore not entitled to maintain an action for eviction against his tenant. We feel that this contention is correct. The appellant had no possession of the property and once the kuthakapattom grant in his favour is cancelled, he retains no reversionary right in the property, and he is therefore not entitled to recover possession from his sub-tenant

In the result, these Second Appeals fail and are dismissed with costs; fee one set.