Panda, J.:— The two petitioners, who are brothers and tenants under opposite party No. 1, in this application seek annulment of the eviction order passed against them under the Orissa House Rent Control Act, 1967 by the appellate authority on 4-8-1978 (Annexure-8).

2. This is a typical case exemplifying the desperate efforts made by the tenants to perpetuate their possession by all conceivable methods - doubtful and dubious. Facts necessary for the disposal of this writ petition may be stated as follows:—

3. Dhani Ram, opposite party No. 1, is alleged to be the owner of a pucca house appertaining to Holding No. 38 in Ward No. 24 of Cuttack Municipality. The ground floor of that building has got two units. A pucca wall separates these two units and divides the well lying at the centre into two halves. These halves, therefore, can conveniently be described as ‘eastern part’ and ‘western part’. The western part is cross marked in red ink and that is the property from which eviction was sought for by Dhani Ram (opp. party No. 1) of the two tenant-petitioners. The case was numbered as House Rent Control Case No. 37 of 1976. Admittedly, the petitioners had been inducted by Dhani Ram as tenants as early as in 1958. Dhani Ram (opposite party No. 1) sought eviction mainly on the ground that the house he was staying in and carrying on business had become insufficient for the accommodation of his increased family of four married sons and fourteen grandchildren. Besides, his sons who have now become adults, were in bona fide need of this tenanted house for having independent business of their own. It is conceded that the two tenant-petitioners were running a sweetmeat stall all through in the disputed house.

4. The case of the petitioners in essence was that the house in question did not belong to Dhani Ram but to his brother Ram Chandra Ram. Dhani Ram, therefore, was not entitled to initiate the eviction proceeding for his personal use. They admitted to be paying rent to Dhani Ram, but added that it was under a “mistaken impression about his title.” According to them, in a partition deed between Dhani Ram and his brothers effected on 4-11-1953, the tenanted house standing on C.S Plot No. 1367/1566 and 1367/1567 had fallen to the share of Ram Chandra Ram. After mutation of his name in the Tahsil Office, Ramchandra Ram instituted House Rent Control Case No. 58 of 1975 against them for eviction. In that case, Ram Chandra Ram succeeded and evicted the present two petitioners through Civil Court and took delivery of possession on 31-10-1975. After such eviction, Ram Chandra Ram entered into a fresh contract with the petitioners for lease and allowed them to continue their business on sweetmeats on the front portion while he remained in occupation of the back portion. The case of Dhani Ram that he needed the house for his personal use i.e to provide business for his sons was generally denied.

5. A large number of documents were exhibited. Out of them the partition deed dated 4-11-1953 is Ext. 1 (Annexure-3) and the municipal rent receipts (Exts. 7 to 79) are important. More important are Exts. 2 to 2/2, the counterfoils of the three rent receipts granted to the tenants by Dhani Ram for the months of January, February and March, 1976. Their significance lies in the fact that according to the tenant-petitioners they had been evicted by the real owner Ram Chandra Ram in pursuance of the decree passed in H.R.C Case No. 58 of 1975 on 31-10-1975. If this H.R.C Case, consequent eviction and creation of a new tenancy by Ram Chandra Ram with the tenant-petitioners, whereby he (Ram Chandra Ram) occupied the back portion if true and genuine, there was no conceivable reason why the tenants of Dhani Ram would continue paying the usual rent to him till March end, 1976. i.e for five months even after their eviction by the so-called real owner and a fresh tenancy replacing the old one. Certainly the petitioner-tenants who are seasoned businessmen, cannot be so silly or charitable as to make double payment of rent, once to Ram Chandra Ram the real owner according to them as per the new tenancy; and Dhani Ram (opposite party No. 1) the “benami owner” for Ram Chandra Ram according to them as per the old tenancy.

6. Dhani Ram as petitioner in H.R.C case examined 5 witnesses. P.W 1 is Dhani Ram himself. P.W 3 is one of his four sons who is desirous of opening a shop on the disputed building. P.W 2 is one of the “family friends” of both Ram Chandra Ram and Dhani Ram. He is named in the partition deed (Annexure-3) to have effected the partition and as such a very material witness. He spoke about the ownership of Dhani Ram over the tenanted suit house. P.Ws 4 and 5 are two municipal tax collectors who were examined to prove that they were collecting municipal tax all through for the suit holding from Dhani Ram and not from Ram Chandra Ram.

7. From the side of the tenants (here petitioners) four witnesses were examined. Out of them O.P.W No. 1 is a survey-knowing Advocate privately taken by Ram Chandra Ram in Dec. 1975 who stated that after survey he found the house in question to be standing on C.S plot Nos. 1367/1566 and 1367/1567 within the area allotted to Ram Chandra Ram under the partition deed. Opposite party No. 2 (aged 28 years) is the son of Ram Chandra Ram and he was examined to prove his father's title and possession over the disputed house O.P.W No. 3 is one of the employees of the opposite parties (petitioners herein) who stated about the possession of Ram Chandra Ram over a portion of the house in question. O.P.W No. 4 is the process-server who stated to have delivered possession of the house in question to Ram Chandra Ram on 31-10-1975 in furtherance of the earlier order of eviction passed in H.R.C Case No. 58 of 1975 referred to above, brought by Ram Chandra Ram against the tenant-petitioners behind the back of Dhani Ram (opposite party No. 1). Subsequently, two witnesses were examined on behalf of the opposite parties (here petitioners) as O.P.W Nos. 5 and 6 to prove how the tenant-petitioners have purchased the house in question on 26-9-1977 under Ext. K (Annexure-9) from Ram Chandra Ram in Calcutta. This is obviously during the pendency of this H.R.C proceeding i.e H.R.C Case No. 37 of 1976 initiated on 12-4-1976.

8. The learned House Rent Controller held that:—

(1) Ram Chandra Ram is the owner or the disputed house;

(2) Dhani Ram was realising rent from the petitioners as benamidar of Ram Chandra Ram;

(3) Dhani Ram had failed to prove that he required the house in good faith for his own use though he might have a wish or desire like that;

(4) The earlier tenancy having come to an end by eviction in consequence of the legal proceeding instituted by Ram Chandra Ram, there was no further scope for Dhani Ram to profess himself as the landlord.

9. However, he rejected the plea of the tenants that a single case against both is not maintainable under O. 7, R. 3 of the CPC as also the plea that the suit properties have not been properly described and so suffer from indistinctness.

10. Dhani Ram (opposite party No. 1) came up in appeal (Appeal No. 18/77) and the appellate Court set aside the order of the House Rent Controller holding that—

(1) The House Rent Controller is not competent to decide the question of title as expected of a Civil Court but had it disposed it of in a summary manner;

(2) Examination of evidence on record does not prove the case of the tenants that Ram Chandra Ram had acquired property in a partition and ever since was exercising the right of ownership thereon;

(3) The benami story set up by the tenants should not have been relied upon by the learned House Rent Controller;

(4) During the continuance of tenancy, the tenants cannot question the title of the landlord Dhani Ram as defective and bank upon the same to defeat his case before restoring possession to him by surrender;

(5) The need of the landlord Dhani Ram was bona fide and he had been able to prove it justifying eviction.

11. The learned appellate Court like the House Rent Controller rejected the objections of the petitioners under O. 7, R. 3 of the CPC that the suit house has not been distinctly described.

12. It is in this background that the tenant-petitioners have filed this writ application on 4-9-1978 for quashing the order of eviction passed against them by the appellate Court.

13. In the itinerary of this lis the following undisputed points have emerged:—

(i) Dhani Ram (opposite party No. 1) had inducted the two petitioners as tenants into the suit house sometime in 1958.

(ii) The tenant-petitioners were paying rent to Dhani Ram regularly, ever since 1958 and at varying enhanced rates also, as settled between them from time to time without demur till the end of March, 1976.

(iii) Dhani Ram has been all along and all alone paying the municipal tax in respect of the holding No. 38 that includes the suit building.

(iv) The two tenant-petitioners had all along acknowledged Dhani Ram as their landlord paying rent to him till the end of March, 1976. It is for the first time that they disputed his ownership and title to the building when they stated in their written statement dated 25-8-1976 in this proceeding under Section 7 of the Orissa House Rent Control Act that—

“8. That the payment of rent has been made for the mistaken impression that the applicant has title but it is now found out that the petitioner has no title.”

(That has been reproduced in para 13 of this writ petition.)

(v) Ram Chandra Ram, as a fact, had previously filed H.R.C Case No. 58 of 1975 in respect of this identical building against the petitioners. It was not contested and Ram Chandra Ram got an ex parte decree for eviction. He levied execution and got the petitioners evicted on 31-10-1975. Neither to this House Rent Control case nor to the execution proceeding, Dhani Ram was a party and they were finalised keeping Dhani Ram all the while in the lurch.

(vi) That on 13-9-1976 Ram Chandra Ram filed Title Suit No. 134/76 (Ext. 3) against Dhani Ram and the present two petitioners. The suit was valued at Rs. 200/- and the prayer portion is intriguing and interesting (Annexure-Q). On the plaintiff's petition under O. 39 Rr. 1 and 2 of the CPC Misc. Case No. 256/76 arose out of that suit. The Munsif, First Court, Cuttack held that Ram Chandra Ram was not entitled to an order of injunction as he had not been able to make out a prima facie case in respect of the property (Annexure-R).

(vii) While the suit (T.S No. 134/76) was pending, Dhani Ram filed an ad interim injunction petition which was numbered as Misc. Case No. 148 of 1976. The Court allowed the petition, restrained the present petitioners not to purchase the properties from Ram Chandra Ram and “restrained Ram Chandra Ram from transferring or dealing in any way with the suit properties till the disposal of the suit” (Annexure-S).

(viii) Ram Chandra Ram then filed a petition under O. 23, R. 1 of the CPC to withdraw the suit which was allowed on 24-9-1977 - vide Ext. 81 wherein the Court ordered that the suit is with drawn as abandoned by the plaintiff with a cost of Rs. 30/- to the defendant. A copy of that order is Annexure-T.

(ix) On 2-6-1977 the petitioners entered into an agreement with Ran Chandra Ram to purchase the property.

(x) Thereafter Ram Chandra Ram and the petitioners entered into a registered agreement for sale on 4-7-1977 at Cuttack (Deed No. 3880 dt. 4-7-77 wherein the petitioners are said to have advanced Rs. 20,000/- to Ram Chandra Ram.

(xi) On 26-9-1977 Ram Chandra Ram as vendor sold the suit building to the petitioners as vendees on receipt of balance consideration of Rs. 20,000/-. Thus according to the petitioners from 26-9-1977 they are the owners having full title over the suit building.

14. This being a writ of certiorari the scope of interference is meagre in deed. Such a writ can only be issued to judicial or quasi-judicial bodies on any of the grounds viz., want of or excess of jurisdiction; failure to exercise jurisdiction; violation of procedure; disregard of principles of natural justice; and error of law or fact apparent on the face of the record. Strenuous endeavour was made to bring the case under “error apparent on the face of the record.” No error which has to be established by a long drawn process or reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is not self-evident, but has to be established by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari.

15. Section 12 of the Orissa House Rent Control Act, 1967 lays down that an enquiry under the Act “shall be of a summary nature” and shall as far as possible “be disposed of within a period of six months from the date of the institution.” So the petitioners to succeed must establish that the learned appellate Court has committed an error either of fact or of law and that is so manifest that it requires no ingenuity or endeavour to detect the same.

16. Judged from the above standard, and after giving a patient hearing to the counsel for the petitioners, I was not satisfied that any substantial point had been raised to merit consideration. So, willy-nilly, I asked the learned counsel for the petitioners to formulate his points of attack and that has been quoted verbatim as hereunder:—

“(a) That the petitioner-landlord wanted to eject the opposite party tenant from holding No. 38 and says that it is same as holding No. 12 which under Ext. 1 was given to him by his uncle Sitaram and the other brother Ram Chandra Ram and Bharat Ram have no interest therein. But from the documents and from the admission it is apparent that holding No. 38 is not the same holding No. 12.

(b) It is found on admission in the memo of appeal in the lower appellate Court (para 6 (6)) that the building in question not only stands on a portion of plot Nos. 1367/1566 and 1367/1567, but also on a portion of plot No. 1367.

(c) The learned lower Court in para 15 of his judgement has said that it is not a forum to decide the question of title and it is sufficient to decide the matter in a summary way.

(d) The estoppel under Section 116 of the Evidence Act has no place in cases under House Rent Control Act. The tenant is not estopped from denying the landlord's title to it prior to and subsequent to his induction.

(e) In this particular case when it is found that these 3 plots belonged to the joint family of Dhani Ram, Bharat Ram and Ram Chandra Ram and the suit house stands on a portion allotted to Ram Chandra Ram, the Court has to go into title to find out whether Dhani Ram let it out and if so, whether on his own behalf or on behalf of Ram Chandra Ram. This assumes great importance when the question of requirement will be considered because if it is the property of Ram Chandra Ram and Dhani Ram as the elder brother was leasing it out, it will be presumed that he had done so on behalf of Ram Chandra Ram and, therefore, a tenant cannot be ejected for the requirement of Dhani Ram's son for business. It is only for the requirements of Ram Chandra Ram that the tenant can be ejected and the lower appellate Court's finding is wrong.”

17. The tenability of the above points raised on behalf of the petitioners may now be examined.

(i) Point Nos. (a), (b) and (c):— The first two points are disputed questions of fact to be determined on assessment of evidence. This Court, in exercise of its extraordinary jurisdiction, normally does not re-assess the evidence, unless it is perverse or based on errors of record. The findings of the learned appellate Court, as I find, do not suffer from any of these infirmities to justify interference.

18. The simple points in the proceeding for determination were (a) was there existing a relationship of landlord and tenant between the parties as contemplated under the Orissa House Rent Control Act in respect of the building in question? and (b) if so, did the landlord succeed in bringing his case under any of the grounds that entitles him for eviction of the tenants ?

19. If the question of title to the disputed immoveable property arises incidentally, the authorities under the Orissa House Rent Control Act (hereinafter referred to as the Act) are to decide it in a summary manner. They are not expected nor the Act requires that they are to decide complicated questions of title and arrogate to themselves the powers of a Civil Court. The provisions of Section 12 of the Act that the enquiry should be summary in nature and should be disposed of as far as possible within a period of six months from the date of institution are clear indications of the fact that the authorities under the Act should not go into subtle questions of title. There is, therefore, nothing to quarrel over the observations of the learned appellate Court that this is not the forum to decide the question of title and it is sufficient to decide the matter in a summary way. This view of the appellate Court is very correct.

20. Over the question whether present holding No. 38 corresponds to holding No. 12 of the year 1953 when the partition took place under Annexure-3 between the three brothers, the landlord has pledged his own oath. Besides, he has adduced documentary evidence Exts. 7 to 79 (rent receipts) and examined the Tax Collector (P.W 5-Trilochan Patra). As against this, the evidence on the side of the tenants (petitioners) is nil. They only rely on Ext. 1 (Annexure-3) which on scrutiny has been found to be incorrect at least on two very material points, that is, regarding the description of the land in question and secondly regarding the area of the building in question. The learned appellate Court has very convincingly dealt with this aspect of the question in para. 11 of his judgement. As is clear therefrom A 0.017 decimals or vacant land had been divided between opposite party No. 1 and Ram Chandra Ram. It is hinted that the western half of this belongs to Ram Chandra and on that half the disputed building stands. Since the eastern portion is already in possession of Dhani Ram (opposite party No. 1) who has got it by evicting the tenant Balaram referred to above, by necessary implication this western half of the building belongs to Ram Chandra Ram. Suffice it to say, the question has not to be decided on surmises or conjectures but on evidence. A.0.017 decimals as has been very rightly held by the learned appellate Court cannot accommodate all the rooms rented out to the tenants. The learned appellate Court has given the dimension of the rooms and has observed thus:—

“As per his version A.0.017 decimals is equal to 220 square feet, and at the face of this evidence conclusion can never be to the effect that the rented house in question has been put to partition under that deed Ext. 1 and allotted to the share of Ramchandra Ram, since even half of that house cannot get adjusted within those 17 decimals of Ramchandra Ram.

12. In that document, Ext. 1, the brothers had admitted the title of the petitioner in respect of a house which he had got from his paternal uncle Sitaram.

xx xx xx

It was for the O. Ps. to prove the title of Ramchandra Ram over the house in question and that they having failed to do, they cannot now come forward and ask the petitioner to place proof with regard to his title in view of the provision of Section 116 of the Evidence Act.

13. In that suit T.S 134 of 1976, as evident from Ext. 3, Ramachandra Ram had indicated that his claim from out of Survey Plot No. 1367/1566, 1367/1567 which had a total area of A.0.297 acre was just 0.017 acre, but still, under Exts. G and K, he had conveyed title to the O.P No. 1 over 0.17 acre. The O.P No. 1, who had taken O.P.W 1 to measure the lands on 24-12-75, would not have purchased 0.17 acre from Ramchandra Ram, when he had only 0.017 acre in those plots, without demur, had he not been cherishing the idea of playing tricks with the petitioner to deprive him of the house in question. The learned controller, as is apparent failing to mark the difference between 0.17 and 0.017 has fallen into an error in holding that the house was of Ramchandra Ram's share.”

21. Regarding the alleged admission in para 6(c) of the appeal memo, I may say that it is not proper to read a sentence divorced from the context. The spirit of the entire paragraph in which it occurs has to be taken into consideration and that belies the argument advanced on behalf of the petitioners. What is stated there is that “the building stands on a portion of the lands appertaining to plot Nos. 1367/1566 and 1367/1567 but not on that portion of the plots which was allotted to Ram Chandra Ram in the partition deed, but on a portion of the main plot No. 1367 which measures A.0.953 decimals.” Thus, this becomes a disputed fact and this Court cannot and should not attempt to resolve it in its writ jurisdiction with inadequate date before it.

22. From the above quotation from the judgement of the appellate Court it would be clear that it has approached the topic in its proper perspective and has given due weight to the oral, documentary and the circumstantial evidence. As such, there is no scope for interference and the points are decided against the petitioners.

(ii) Point No. (d):— The first part of the proposition that estoppel under Section 116 of the Evidence Act has no place in cases under the Act smacks of as a nobel proposition of law. No authority has been cited in support of the same. On the other hand, a Bench of this Court in a house rent control case between this opposite party No. 1 and a tenant (Balaram Panda) in respect of the eastern portion of the disputed holding No. 38 in First Appeal No. 334 of 1977 (Balaram Panda v. Dhani Ram) (disposed of on 7-4-1978) (Ori) has held—

“11. On a review of the oral and documentary evidence, we come to the unhesitating conclusion that the defendant was never a tenant under the plaintiff in respect of holding No. 41 and that the counterfoils Exts. 1 series and 25 series relate to the rent receipts obtained by the defendant on payment of rent for occupation of the suit premises appertaining to holding No. 38. Once the relationship of landlord and tenant is established between the parties, the tenant would be stopped from disputing the landlord's title. The suit is based upon tenancy and not upon title. So the question of title cannot be gone into. The estoppel under Section 116 of the Evidence Act prevents the tenant from pleading absence of title in the landlord as a ground for refusing to pay rent.”

Section 116 of the Evidence Act provides—

“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.”

Great reliance was placed on a Division Bench decision of this Court in the case of Udaypratap Singh Deo v. Krushna Padhano (AIR 1952 Orissa 95). Emphasis was laid on a sentence which runs thus*:—

“The questioning or the landlord's title with reference to the time prior to the commencement of the tenancy and subsequent thereto is not covered by the well-known principle of estoppel as between the landlord and the tenant.”

Relying on this it was very strenuously argued that as the tenants here were questioning the title of the landlord at the time of partition in 1953, i.e five years prior to the creation of the tenancy in 1958, the bar of estoppel under Section 116 of the Evidence Act is not attracted. This argument ingenious though cuts no ice. The sentence when read with reference to the context means something different. In the words of their Lordships it is as follows*:—

“A tenant who had been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his land lord. The real significance of the term “during the continuance” means so long as the tenant is continuing in enjoyment of the benefits of the tenancy, he shall not be allowed to deny or challenge the author of the said tenancy.”

Obviously this is based on the salutary principle of prohibiting the beneficiary while enjoying the benefit to challenge the competence of the benefactor to confer on him that benefit. In this case, the tenants being in possession in consequence of the tenancy created by opposite party No. 1 should not be allowed to question the title of the landlord opposite party No. 1 as long as they are in enjoyment of the tenancy. In other words, let them vacate the premises and the building and then question the title of the landlord and not when continuing in the house. This citation, therefore, does not come to the help of the petitioner at all. This is therefore decided against the petitioners.

(iii) Point No. (e):— This point does not require much scrutiny. The landlord has never stated anywhere that he had acted either as a benamdar or as an agent or as a manager or as a trustee for anybody else, much less for Ram Chandra Ram - his brother, whom the tenants try to set up as the true owner. The landlord sought eviction of the tenants on his own behalf as the landlord. It is only the tenants who alleged that he is a benamdar for Rama Chandra Ram. There is no evidence either oral, documentary or circumstantial to lend the slenderest support to any such purposeful and pregnant suggestion. Law is clear that one who alleges that the state of things is not the real state of things, it is for him to establish it and in that the tenants have signally failed.

23. It was finally argued that Dhani Ram as the eldest member of the family was acting on behalf of Ram Chandra Ram and inducting tenants.

24. Accordingly he was a benamdar for Ram Chandra. If so, the onus lay squarely on Ram Chandra Ram to lead evidence in support of that stand. But instead of doing it Ram Chandra Ram has not come to the dock. Evidence is that ever since partition he has shifted to Ajamgarh in Uttar Pradesh. The municipal taxes are being all along paid in respect of holding No. 38 by opposite party No. 1. There is no streak of evidence anywhere nor is there any allegation that the money Dhani Ram was realising from the tenants was being sent to the real owner Ram Chandra Ram at any stage during these 18 years. Nor there is any correspondence between Ram Chandra Ram and Dhani Ram to lend support to any such laboured inference. Again, it is ununderstandable how after the partition in 1953, Dhani Ram continued to be the manager when the joint family had already disrupted by metes and bounds partition in the year 1953 under Ext. 1 (Annexure-3). This is, therefore, merely a desperate stand barren of any substance.

25. Incidentally I may refer to the last argument advanced for the petitioners that at least the opposite party No. 1 was a trustee for Ram Chandra Ram. In this context the case law reported in 45 Cut LT 387 : (AIR 1978 Orissa 233) (K. Chitti Babu v. K. Anjaneyelu) was recited in extenso. It is unnecessary to refer to it for in that case the admitted position was that the trustee for the deity wanted ejectment of the tenants for his personal benefit, namely, to start a shop of hardware for his benefit and not for the benefit of the deity for whom he was the trustee. Here such is not the case and so it is utterly otiose.

26. Thus, all the points having been decided against the petitioner, the petition is bound to fail and the order of eviction must stand.

27. Before closing this judgement, I am constrained to observe how the tenant-petitioners made frantic efforts to flout the legitimate claim of the landlord-opposite party No. 1. They have taken recourse to various subterfuges to retain possession of the building in question by hook or crook. Having come over to the building through opposite party No. 1 and having remained there for nearly two decades, they colluded with Ram Chandra Ram who brought a fake eviction proceeding and obtained a fake delivery of possession also on 31-10-1975. Then they entered into an agreement as if they remained in the front portion of the building and Ram Chandra Ram remained in the back portion. All these are make belief affairs calculated to defraud the landlord. Since this did not serve their purpose, Ram Chandra Ram brought Title Suit No. 135 of 1976. Dhani Ram contested it and the attempts of Ram Chandra Ram to obtain injunction against Dhani Ram proved futile. Naturally Dhani Ram became suspicious and on his petition Ram Chandra Ram was injuncted not to sell the house to the tenants and the tenants were injuncted not to purchase the house during the pendency of the suit. This evidently created difficulty and so the suit Was withdrawn without permission to bring any fresh suit. Thereafter Ram Chandra Ram and the tenants entered into a registered agreement for sale of the suit building on 4-7-1977 at Cuttack and then on 26-9-1977 the registered deed was executed for Rs. 40,000/- at Calcutta. Thus by now the petitioners have become the owners of the house according to them. Behind this tell-tale background, assertion that Dhani Ram was a benamdar for Ram Chandra Ram appears fantastic. If the tenants have a better title now by virtue of the sale deed, it is for them to give up possession first to opposite party No. 1 and then sue him for title and possession on the basis of their alleged paramount title, if they are so advised. But they cannot be allowed to do so while lingering possession and remaining in the house, merely alleging that opposite party No. 1 is just a “statutory landlord” as finally contended.

28. Since in exercise of extraordinary jurisdiction of the High Court disputed questions of fact and complicated questions of title are not to be decided any observations made by me while disposing of this petition should not be utilised to the prejudice of any party in any subsequent suit if filed. But all the same, each party will be entitled to the benefit of law that flows from admitted facts such as res judicata or estoppel or limitation as the case may be.

29. The petition is not only absolutely devoid of merit but exhibits an attempt at overreaching the law and the law Court to which the House Rent Controller fell a victim. The petition stands rejected with costs. Stay of Execution Case No. 351/78 pending in the Court of the Munsif, First Court, Cuttack stands vacated. Hearing fee rupees 250/- (Rupees two hundred and fifty only).

30. The petitioners to deliver possession of the tenanted building to opposite party No. 1 by 31st January, 1979, without fail.

31. P.K Mohanti, J.:— I agree to the order proposed by my brother, but in view of what was argued at the hearing, I propose to add a few paragraphs of my own.

32. It was argued on behalf of the petitioners that as a portion of the house in question stands on a plot of land which has been allotted to Ramchandra Ram in the family partition, the petition for eviction could not have been filed by the opposite party No. 1 all by himself. This contention has no force in view of the fact that in order to be entitled to ask for eviction under Section 7 of the Act what all is required is that the applicant should be receiving or be entitled to receive rent of the house on his own account or on behalf of another or on behalf of himself and others. This finding of fact recorded by the appellate forum is that the petitioners were paying rent payable for the whole house to the opposite party No. 1 alone and he was receiving the same on his account. The opposite party No. 1 would, therefore, be a landlord within the definition of the term occurring in Section 2(4) of the Act and that would give him the right to ask for eviction without joining any other person who may be a co-owner of the building.

33. It had next been contended on behalf of the petitioners that the enquiry under the Act being of a summary nature and the authorities constituted under the Act having limited jurisdiction, it was beyond the competence of the appellate authority to hold that the previous proceeding under Section 7 of the Act at the instance of Ramchandra Ram for the premises in question against the petitioners was a collusive and fraudulent one. There appears to be some force in the argument that when it is contended that an earlier decision of a tribunal was vitiated by fraud, the question should ordinarily be left to be decided in a regular suit and the tribunals constituted with limited jurisdiction should not be allowed to investigate such questions and finally hold that the previous proceeding was vitiated on account of fraud.

34. Where, however, a tenant raises the contention that there is no relationship of landlord and tenant between the parties, the authorities constituted by the Act would necessarily be called upon to record a finding on the jurisdictional issue and the Controller would certainly have jurisdiction to decide as to who the landlord of the premises is. In the present proceeding the appellate authority has examined the question from that point of view and I am inclined to hold that the action to the appellate authority cannot be questioned as being contrary to law.

35. Section 116 of the Evidence Act postulates that a tenant who has been admitted into possession would not be entitled to deny the landlord's title, however defective it may have been, so long as he has not surrendered possession of the premises to the landlord. In the facts of the case and particularly when even after the eviction order was passed against the tenant in the previous proceeding, he continued to pay rent to the opposite party No. 1 as per Ext. 2 series, it would not be open to the tenants to contend that the opposite party No. 1 was not their landlord.

36. Petition dismissed.