R.K Choudhary, J.:— This second appeal is by the plaintiff. He claims to be a permanent mokarrari tenant of a plot of coal land as also the surface land measuring 169 bighas described in Schedule A of the plaint. The dispute in the present litigation is with respect to portions of the aforesaid 169 bighas described in schedules B and C of the plaint. Schedule B is a strip of land measuring about 600 feet long from north to south and about 15 feet wide from east to west.

2. According to the plaintiff it is his private road over and through which the defendants plied their coal from their coal area called Khas Mahatadih Colliery lying to the north of the plaintiff's Colliery. Schedule C land measures about 200 feet north to south and 200 feet east to west, and according to the plaintiff, the defendants' coal was stacked over the same. The plaintiff's case is that at the request of the defendants, the plaintiff permitted them to occupy the disputed lands on payment of a monthly rent of Rs. 15 to Rs. 60 which was actually paid to the plaintiff by the defendants up to January, 1950. As the plaintiff required the suit land for his own purposes, he sent on the 13th of March, 1950, a notice to the defendant to vacate the same by the 31st of March, 1950. This notice was admittedly served on the defendants on the 15th of March, 1950, but they did not vacate the land. The plaintiff, therefore, instituted a suit out of which the present appeal arises for a decree for Khas possession over the same and for permanent injunction restraining the defendants, their men and agents permanently from plying their carts and coal trucks and their coal from their colliery over and through the said lands. A prayer for recovery of a sum of Rs. 120/- as rent and for a sum of Rs. 420/- as damages was also made. He also Prayed for a direction to the defendants to remove all coal, and refuge matters stacked on the suit lands.

3. The suit was contested by all the defendants who filed a joint written statement. Their pleas, which are relevant for the purpose of the present appeal, were (1) that the plaintiff was not the owner of the surface land, (2) that the defendants were in occupation of Schedule C land from a long time, but as the plaintiff misrepresented to them that he was the owner of that land and threatened them with legal action, they agreed to pay rent to him for the same and actually paid rent. (3) that on the 16th of March, 1950, one Lakshminarain Pande and his co-sharers, who claimed to be the tenure-holders of the said land, sent a notice to them which they received on Sire 20th of March, 1950, calling upon them either to vacate the same or to take settlement of the same from them, and, consequently on the 1st or May 1950, they took settlement from Lakshminarain Pande and his co-sharers of the land covered by Schedule C of the plaint and (4) that Schedule B land is a public highway. They also pleaded that the notice to quit, given by the plaintiff, was not valid and that he was not entitled to any rent or damages.

4. The Munsif who tried the suit, held that the plaintiff had title over the surface bud in regard to the lands in suit, that the defendants were estopped from challenging the title of the plaintiff, that the defendants were licensees and that, though no notice was necessary to be served, the same had been validly served on the defendants. He, accordingly, decreed the suit for all the reliefs claimed by the plaintiff.

5. On appeal by the defendants the learned Subordinate Judge, by a very lengthy, but most unintelligible judgment, reversed the decree passed by the Munsif and dismissed the suit. The judgment of the Subordinate Judge is very unsatisfactory and one has to search in vain as to what his findings are. It is not possible to ascertain easily whether a particular passage in his judgment is his finding on a particular point or it is merely a note of arguments advanced by the parties.

6. His findings, however, may be summarised to be (1) that the plaintiff has failed to establish his title which has been proved to be in Lakshminarain Pande and his co-sharers, (2) that the defendants were not estopped from challenging the title of the plaintiff, (3) that the defendants are the lessees and not licensees and notice to quit was necessary and (4) that the notice served on behalf of the plaintiff was invalid. On these findings he dismissed the suit. Being, thus, aggrieved, the plaintiff has presented this appeal.

7. The first point urged by Mr. Lalnarain Sinha in support of the appeal is that there was a title in the plaintiff over the suit lands and the decision of the lower appellate court of the contrary is wrong in Law. Tile question whether the plaintiff has established his title or not, ordinarily is a question of fact, and the decision of the trail court of fact on that point is binding on this court in second appeal. But in this case the determination of the question of the title claimed by the plaintiff does not depend merely on decision of questions of fact; the point has to be decided on the interpretation of the documents of title and the legal consequences of those documents. It is for this reason that Counsel for the appellant has contended that the finding on this point of the lower appellate Court is wrong in law.

8. It is not disputed that the family of Pandes was the tenure holder of the lands in question. On the 22nd of September, 1898, the tenure holders gave a lease of the aforesaid 169 bighas to one Harsamall by means of a registered patta, exhibit 6. By that patta admittedly Harsamall was given permanent mokarrari right in respect of tinder-ground coal on commission basis. At the trial it was not disputed that Schedule C land formed part of the above 169 bighas of land, but a dispute was raised with respect to Schedule B land as its being part of the above 169 bighas. The trial court held that the suit lands covered by both the Schedules were part of the above area of 169 bighas of land.

9. The lower appellate court criticised some of the reasonings given by the trial court for coming to the above conclusion, but did not give any finding of its own on that point. Our attention has been drawn to paragraph 6 of the patta, exhibit 6, in which it is stated that the lessee should not be competent to take settlement of or possess even on his necessity the pathway that existed on the said 169 bighas for the use of the public and of bullock carts, but he shall be competent to use the same as one of the public. On the basis of this recital it was contended on behalf of the respondents that the pathway (Schedule B land) could not be taken in settlement and did not form part of the said 169 bighas.

10. In reply to this contention it was urged on behalf of the appellant that the pathway in question was the private pathway of the plaintiff which his predecessors in interest had made for their own use, and on the recital itself it must be held to be part of 169 bighas referred to above. I am inclined to accept the contention raised on behalf of the appellant. As rightly pointed out by the trial court there are enough materials on the record to show that even the defendant accepted the title of the plaintiff over this pathway and paid rent to him for having used it.

11. Exhibits 1(e) and 1(f) are letters dated 18-4-48 and 1-3-50 respectively written on behalf of the defentants to the Central Tentulia Colliery and the plaintiff respectively, wherein the defendants have clearly admitted the plaintiff to be the owner of that pathway. The rent receipts, exhibit 4 series, show that the defendants and other collieries used to pay rent to the plaintiff for the use of that land.

12. These receipts clearly show that the plaintiff and his predecessors in interest have all along been exercising their right of ownership over the pathway in question as being part of the above 169 bighas of land. There is thus no doubt that Schedule B land also formed part of the said 169 biglias. It must, therefore, be held that the suit lands are part of 169 bighas of land taken in settlement by Harsamall by exhibit 6. Now, it has to be seen whether the plaintiff is a lessee of the surface land over the said area.

13. Paragraph 4 of the patta, exhibit 6, is very important in this connection and is reproduced below:

“That whatever area of surface land over the 169 (one hundred sixtynine) bighas of land covered by patta, you may stand in need in carrying on all kinds of work in connection with the colliery, e.g digging pits, constructing roads, tram line, siding, depot, kachcha and pucca houses, bazar, etc., we shall deliver possession and make settlement thereof on demand, should the same be in our possession or that of tenant. Should we delay by one year from the date of demand in delivering possession thereof to you even though we have the right to do so and should you suffer any loss thereof, we shall be liable therefor.

14. Should you stand in need of surface land in the said way, you shall within your right, be competent to take possession thereof by informing us with the details, area, class and boundaries of the same. But within one year from your date of possession, you shall by fixing the rent thereof at the rate of Re. 1 per bigha as shown below and paying twice the amount of rent as salami, have to execute kabuliat to us. Thereafter, within 15 days we shall exchange patta and kabuliyat; therefor. Should you not pay salami and file draft kabuliat in the aforesaid way within 15 days for the surface land taken in your possession, we shall, according to our consideration, be competent to fix salami and rent for the said land taken in possession by you and shall do the same and we shall be competent to, and shall, realise the said amount of salami with an interest of Rs. 3/2/- per cent per month till the date of payment, either amicably or by instituting a suit.”

15. From the above recital it is manifest that Harsamall, the lessee, was entitled to take possession of the surface land if he stood in need of the same, and on such possession being taken, he was to be deemed to have taken settlement of the same for which he had to pay salami and rent at a particular rate. It is contended on behalf of the defendants-respondents that for being settlee of the surface land on having taken possession of the same, the lessee had to execute a kabuliyat within a certain period, and admittedly in this case no such kabuliyat was executed. Harsamall could not be deemed to be the lessee of the surface land.

16. On the other hand, the submission made on behalf of the appellant is that the execution of Kabuliyat was only a formality to be observed, and the vesting of title by way of settlement had not to be postponed till the execution of that document. It is contended that it was for this reason that a further stipulation was made that even if a kabuliyat was not executed, the lessee would be liable to pay salami and rent with in serest thereon. In my opinion, the contention put forward on behalf of the appellant is well founded and must prevail. The recital referred to above makes it perfectly clear that on acquiring possession over the surface land, the lessee Harsamall was to become a settlee thereof with liability to pay salami and rent to the lessor.

17. It appears that subsequently the sons and the grandsons of Harsamall formed a private limited company known as the Central Tentulia Coal Co., of which the present plaintiff was also a partner. The properties of Harsamall passed on to this company by a registered deed of indenture, exhibit 7, dated the 1838 of May, 1938. It all appears that Harsamali as well as the above Central Tentulia Coal Co. obtained possession over the surface land, and, by reason of the stipulation in the patta, exhibit 6, they become settlees thereof. That will also appear from a letter, exhibit 1(e), dated the 29th of March, 1925 written on behalf of the tenure holders to the Central Tentuha Coal Co.

18. It is stated therein that the Central Tentuha Coal Co. had been in possession of the surface land for a long time for the settlement of which repeated demands were made. It is also stated that though no patta and kabuliyat had been executed with respect to the surface land, the colliery had been paying rent therefor to some of the co-sharers, and demand was made for payment of rent as well as salami to other co-sharers. There is times no room for doubt that the Central Tentulia Coal Co. as successor of Harsamall was the lessee of the surface land of the plot in question. This view gains support from some of the receipts granted in favour of that company on behalf of the tenure-holders.

19. Exhibit 3(h) is a receipt dated the 23rd of November, 1917, which clearly recites that a payment of a sum of Rs. 28/13/9 was made by the company to a co-sharer landlord as surface rent. Similarly, receipt, exhibit 3(j) was granted by another co-sharer landlord for a sum of Rs. 40/1/6 as being rent of surface land on the 6th of February, 1918. Exhibit 3(c) is again another receipt of the year 1919 granted by another co-sharer land-lord for various items of claim including surface rent. There are some other receipts showing the payment of surface rent and it is not necessary to refer to each of them.

20. The genuineness of these receipts has not been challenged. The trial court relied on till these receipts for holding the question of settlement in favour of the plaintiff. The lower appellate court also considered all of them except exhibit 3(c) and discarded them on the ground that these receipts did not show as to for which land the surface rent was being paid. Curiously enough it omitted to consider exhibit 3(c) which clearly stated that surface rent was being paid with respect to the above 169 bighas of land.

21. Later on the Central Tentulia Coal Co. went into voluntary liquidation and by a resolution dated the 18th of November 1948, exhibit 9, the asset of this company was to be sold to different partners. The above area of 169 bighas was resolved to be sold to the plaintiff, and it appears that after this resolution the plaintiff actually came in possession thereof. The present suit was instituted on the 29th November, 1950 by the plaintiff on the basis of his title that he claimed to have accrued to him by virtue of the transfer made in his favour by the Central Tentulia Coal Co. under the above resolution, exhibit 9, but no formal deed of transfer had till then been executed in his favour.

22. On the 27th of February, 1952, however, during the pendency of the suit, a registered sale deed was executed by that company in favour of the plaintiff with respect to the property is question and that sale deed is exhibit 7(a). It is contended on behalf of the respondents, as has also been could by the learned subordinate Judge in appeal, that the plaintiff could no acquire a valid title before the institution of the suit by the above resolution of the company and the title that he acquired by means of the registered sale deed, exhibit 7(a), during the pendency of the suit, could be of no avail him as the case has to be decided on the events which happened and cause of action which arose to the plaintiff before the institution of the suit.

23. In other words, the contention raised on behalf of the respondents is that the court could not take notice of the subsequent events in order, to give a decree to the plaintiff. On behalf of he appellant, however, it is contended that it cannot be taken as a universal rule of law that subsequent events could not be looked into in deciding a case. It has been argued that the court is entitled to take into consideration subsequent events for deciding a case where such events do not give rise to a fresh cause of action or require fresh defence to be made. It is also contended that the same principle applies in taking notice of a subsequent event which does not create a fresh title but only seeks to perfect an imperfect, title on which the suit was based.

24. It is contended that in this case the plaintiff did not have any fresh cause of action upon the execution of the registered sale deed in the year 1952, and that his claim was based on the same title which he alleged to have accrued to him prior to the institution of the suit. The argument is that the title is the same, but it was only imperfect before the instituion of the suit and has now been made perfect during the pendency of the suit by the registered sale deed. There appears to be much force in this contention.

25. The question raised in the present case, in my opinion, is exactly covered by a Bench decision of this Court in Ram Narain Das v. Governor-General in Council, AIR 1947 Pat 263. In that case the Governor-General in Council, having taken possession, under Section 16 of the Land Acquisition Ac’., of the appellant's land, made over the same to the B.N Railway by way of lease. But the appellant did not give possession to the Railway and was in possession as a trespasser for ninrs than twelve years from the date of the suit which was instituted by the Governor-General in Council against the appellant for his ejectment. During the pendency of the appeal in the suit before the lower appellate court management of the B.N Railway passed into the hands of the Governor-General in Council. The B.N Railway was impleaded as a defendant to the suit. It was contended in that case that, after the land in question had been made over to the Bengal Nagpur Railway, the plaintiff, the Governor-General, had no present ??? of possession, and as such, he could not maintain the action in ejectment. The point raised was that if the suit had been instituted by the Bengal Nnsrtmr Railway for possession it would have been barred by limitation of twelve years as; on the findings it was out of possession for over twelve years. In reply to this contention the argument put forward on behalf of the Governor-General was that during the pendency of the appeal, the management of the Railway having vested in him the suit could legally be maintained at his instance.

26. As against this contention it was urged on behalf of the appellant that the Court was bound to give a decision in the suit on the facts & circumstances as they existed on the date of the suit & it should not take notice of events which have happened after the date of the suit. Their Lordships held that, though ordinarily no notice could be taken of subsequent events, yet it has been held in many cases that the Court has power to take notice of events subsequent to the suit in order to shorten the litigation. It was pointed out by their Lordships that in that case that there was no possible defence to the defendant if the Governor General in Council instituted the suit on the date the Bengal Nagpur Railway Company came to be owned by him and no fresh facts could be adduced in favour of the defendant. In that view of the matter, their Lordships held that the Court would be justified in decreeing in suit of the plaintiff taking into consideration the subsequent event of vesting of the interest of the Bengal Nagpur Railway Company in the Governor General in Council. In the present case also, the defendants had taken all possible pleas that they could take against the title of the plaintiff and on registration of the sale deed by the Central Tentulia Coal Co. in favour of the plaintiff during the pendency of the suit, no fresh defence was available to them.

27. The plaintiff would have been entitled to a decree if he had instituted a suit after taking the registered sale deed in the year 1952, provided the other defence taken by the defendants did not stand in his way. That being the position, the court, in my opinion, could take notice of this subsequent event by which the plaintiff perfected his imperfect title on the basis of which he had instituted the suit.

28. On behalf of the respondents reliance has been placed on Lalloo Prasad Singh v. Lachman Singh*, I.L.R 3 Pat 224 : (AIR 1924 Pat 438); Sadhu Shaban Singh v. Deonath Saran Rai*, AIR 1943 Pat. 206; Srimati Mani Devi v. Srimati Anpurna Dai Sijuarin*, AIR 1943 Pat. 218; Nandkumari Devi v. Mt. Bulkan Devi (AIR 1945 Pat. 87) and Doorga Prosad Chamaria v. Secretary of State, AIR 1945 P.C 62.

29. The lower appellate Court also relied on these cases for deciding the question in favour of the respondents. In my opinion, the material facts of these cases are different and they have no application to the facts of the present case. In I.L.R 3 Pat. 224 : (AIR 1924 Pat. 438) the plaintiffs instituted a suit for a declaration of title to the estate of their uncle. The case made out by them in the plaint was that their father, Dukhi Singh, and their uncle Sheo Sahai Singh, had separated many years ago and the land in suit, after separation, belonged to their uncle.

30. But after the death of their father, the plaintiffs reunited with their uncle on whose death his interest devolved on the plaintiffs by survivorship and they entered into possession. In the alternative, they pleaded that even if the plaintiffs and their uncle were not joint at the time of his death, his only daughter, defendant no. 2, did not want to have the estate left by her father, and she gave up her claim. The Munsif accepted the case of the plaintiffs and decreed the suit. But on appeal, the learned Subordinate Judge reversed his decision and dismissed the suit holding that no case of relinquishment had been made out in the plaint or in the evidence adduced by the plaintiffs and there was no documentary or oral evidence to prove that before the institution of the suit defendant No. 2; had relinquished her right in the land in favour of the plaintiffs.

31. During the pendency of the appeal, however, a petition had been filed on behalf of defendant no. 2 alleging that she had no right or title to the property left by her father and that, in any event, she gave up and disclaimed any right she might have in favour of the plaintiffs. It was contended on the High Court that on the basis of the above petition the suit of the plaintiffs should not be decreed. It was held that the petition of disclaimer I did not alter the position of the plaintiffs as the Court was bound to decide the suit on the rights of the parties at the date when the suit was instituted.

32. It is thus clear that in that case the plaintiffs wanted to rely on a title different from the title on, which they based their case at the time of the institution of the suit. In AIR 1943 Pat. 206 an attempt was made before the High Court in a Letters Patent Appeal to have permission for amending the plaint so as to claim a title on the ground of one Gaya Singh having forfeited his rights as an under raiyat as a consequence of certain transfers.

33. But the suit that the plaintiffs had instituted was based on the ground that Gaya Singh had refused to quit the land in spite of the service of notice on him. Their Lordships did not think it permissible to allow the amendment of the plaint at that stage inasmuch as they were of the opinion that the same would change the cause of action for a suit and would mean a retrial of the whole case on a new footing. That case, therefore, has no application to the present case. In AIR 1943 Pat. 218 during the minority of the plaintiff, guardians were) appointed under Guardians and Wards Act for her person and property, who had to furnish security, and a security bond was executed by them with two sureties.

34. After she attained majority, she found that a large sum of money had been misappropriated and she instituted a suit for accounts. The plaintiff, however, had not taken assignment of the bond at the date of the suit, but during the pendency of the suit she took an assignment of the same from the court. The validity of the assignment was challenged by the defendants. The High Court however, held that the plaintiff could not get a decree on the basis of the assignment subsequent to the date of the suit, as a cause of action must be antecedent to the institution of the suit. Thus it appears that the plaintiff based her case on different cause of action and a new defence was open to the defendants by way of challenging the validity of the subsequent assignment.

35. In the case of AIR 1945 Pat 87 a sole surviving coparcener of a joint Hindu family died leaving a widow, a daughter and a widowed daughter-in-law. The daughter instituted a suit against the widow, J. and the widowed daughter-in-law for a declaration that she was entitled to the suit property left by her deceased father as his heir, and her case was that her father did not leave behind a widow. Her claim was dismissed as it was found that the widow and the widowed daughter-in-law only were entitled to share equally the property left by her father.

36. During the pendency of the appeal by the daugliter, the widow died and she became entitled to share in the suit property as her heir. She, therefore, claimed a declaration of her right to the suit property as heir of her mother. It was held that she was not entitled to a decree declaring her rights to the suit property as heir of her mother as the right claimed was absolutely different from the right claimed in the suit that was instituted by her. Thus the subsequent event gave to the plaintiff a different title and a different cause of action for the suit.

37. In AIR 1945 P.C 62 a certificate issued under the provisions of the Bengal Public Demands Recovery Act, which was originally valid, was sought to have become unenforceable by reason of matters which occurred after the filing of the suit. Their Lordships of the Privy Council held that the same could not be done as the relief claimed in the suit must be confined to matters existing at the date when the suit was instituted.

38. These cases, therefore, have no bearing on the present case which, as already stated, is thoroughly covered by the decision in AIR 1947 Pat. 263 referred to above. It must, therefore, he held that the plaintiff acquired a valid title to the suit properties.

39. Even assuming want of title in the plaintiff, the argument put forward on his behalf is that the defendants are estopped from challenging it. The defendants took the suit lands from the Central Tentulia Colliery for storing coal etc. on payment of rent at Rs. 15 per month from the 1st of November, 1941. Exhibit 1(d) is a letter dated the lith of November, 1941, from the defendants to the above colliery in which they stated as follows:

“In the siding allotted to us by the Railway in Tentulia north siding besides the railway boundary, there is land of your company also. We took that land of your company on rent for storing coal etc. We shall pay for that a rent of Rs. 15 per month from 1-11-41. If we do not pay the rent in any month, we shall not remove our goods. As long as we shall keep the land in our use, we shall pay the above mentioned rent. Whenever you will require your land, you shall have to give us three months' notice.”

40. Exhibit 1(e) is another letter from the defendants to the above colliery written on the 18th of April, 1948, which shows that the defendants agreed to pay a monthly rent of Rs. 60 for Schedule C land and a monthly rent of Rs. 30 for Schedule B land, and it appears that they paid rent at the above rate not only from the date of that letter but from an earlier date, that is, from the 1st of October, 1946. By letter, exhibit 1(f), dated the 1st of March, 1950, the defendants informed the colliery that they had discontinued to use their surface land for which a rent at the rate of Rs. 30 per month was payable.

41. All these letters clearly establish that the defendants took the lands covered by Schedules B and C of the plaint for stacking coal and coke and for transporting the same to the Tentulia South-West assisted Siding. After the Central Tentulia Coal Co. went into liquidation and the above area of 169 bighas was resolved to be transferred to the plaintiff by resolution, exhibit 9, the plaintiff seems to have taken possession of the same as transferee and the defendants since thereafter attorned to the plaintiff by paying rent for the lands in question.

42. Exhibits 4(e) dated 9-10-1949, 4(i) dated 6-11-1949, 4(y) dated 27-1-1950 and 4(z3) dated 6-2-1950 are the rent receipts granted by the plaintiff to the defendants for Schedule B land and exhibits 4(a) dated 9-10-1949, 4(1) dated 6-11-1949, 4(x) dated, 27-1-1950, and 4(z2) dated 6-2-1950 are rent receipts granted by the plaintiff to the defendants for Schedule C land. It has, there lore, been argued on behalf of the plaintiff-appellant that the defendants took the lands from the predecessors in interest of the plaintiff and attorned to the plaintiff by paying rent to him and as such they were estopped from challenging the title of the plaintiff or his predecessors in interest under Section 116 of the Evidence Act. That section runs as follows:

“No tenant of immoveable 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 immoveable property; and no person who came upon any immoveable property by the license 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 license was given.”

43. This section in terms estop the defendants from challenging the title of the predecessors in interest of the plaintiff from whom they took the land.

44. But it is contended on behalf of the plaintiff that, apart from the above section, the doetrinel of estoppel applies even to a case where the tenant attorns to the landlord. The argument is that on the terms or the above section as well as on the general principle of estoppel the defendants are estopped from challenging the title of the Central Tentulia Coal Co., from whom they took, the land and of the plaintiff to whom they attorned by paying rent after he took the transfer under the resolution, exhibit 9.

45. In my opinion, the argument put forward is well founded and must prevail, and it gains full support from a decision of the Privy Council in Krishna Prosad Lal v. Baraboni Coal Concern, Ltd., AIR 1937 PC 251. Sir George Rankin, who delivered the judgment of the Board, pointed out that Section 116 of the Evidence Act does not deal and profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant and that it deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation.

46. The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord and it provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that particular landlord had at that date a title to the property. The section applies against the lessee, any assignee of the terms, any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor bad 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 case there may be other grounds of estoppel, e.g, by attornment, acceptance of rent, etc. The same view has been expressed by Chagla, J., in John Nadjarian…Plaintiff; v. E.F Trist…Defendant.*, AIR 1945 Bom 399. It has been held in that case as follows:

“The estoppel under S. 16 is wide enough to cover any case of a grantee who occupies and enjoys under a grant disputing the grantor's title. A mere attornment does not create a new tenancy. The only effect of a mere attornment is the substitution of a new landlord in place of the old and the tenancy continues on the same terms. It may be that in some cases the attornment is not a mere attornment and as a result of the attornment a new tenancy is created. The question, therefore, in a particular case is whether a new tenancy was created when the person attorning attorned tenant to the new landlord. Even a mere attornment does create an estoppel against the tenant, but that estoppel is not the same as is given statutory effect by S. 110. There are other kinds of estoppel between tenant and landlord which fall outside the scone of section 116.”

47. On behalf of the respondents the applicability of the doctrine of estoppel has been challenged on various grounds, and it has been contended that neither Section 116 of the Evidence Act nor the general, ??? of estoppel could debar the defendants from disputing the title of the plaintiff. The first ground taken by them is that the attornment by them was due to mistake and misrepresentation of facts and that they were ignorant of the fact that the plaintiff had no title, and in support of this argument reliance has been placed on the observation of Chagla, J., in the above Bombay case, AIR 1945 Bom 399 that, although the tact of the tenant having attorned tenant to the new landlord orcated an estoppel in favour of the latter, it still does not prevent the tenant from showing that he atorned tenant in ignorance of the act that the new landlord had no title, that when either through ignorance of title of the landlord or by fraud in the matter of execution of the kabuliat the tenants attorn to him, then the tenants are not altogether estopped but can show that the landlord had no title either when the kabuliat is executed or attornment made by payment of rent and that it is competent to the tenant to show that the landlord had no title at the date when the tenant attorned tenant to him.

48. There is no doubt as to the correctness of the above principle of law. But, in my opinion, it has no application to the facts of the present case. The only plea with regard to the misrepresentation or ignorance is set out in paragraph 13 of the written statement which states that they were compelled to pay rent to the Central Tentulia Coal Co., as they falsely and fraudulently represented that they were the owners of the said land and tried to interfere with the possession of the defendants. There is nothing in the pleading about any fraud or misrepresentation on behalf of the plaintiff as regards his own title so as to induce the defendants to attorn, to him.

49. Even with respect to the case of misrepresentation by the company there is no clear finding of the learned Subordinate Judge in his judgment. Nothing has been shown to us from the record of the case to show that after the representation made by the Central Tentulia Coal Co., they made any enquiry in that regard or that they could not discover the truth with ordinary diligence. It is not therefore, possible to hold against the applicability of the principle of estoppel on the ground of misrepresentation, fraud or ignorance.

50. The second ground urged on behalf of the respondents is that, in order to create estoppel under Section 116 of the Evidence Act, there must be continuance of the tenancy. In other words, the argument is that the tenancy of the defendants having terminated before the suit, that section could not apply. The argument seems to be based on confusion. It has been pointed out to us that by exhibit 1(f) dated the 1st of March, 1950, the defendants intimated to Central Tentulia Colliery that they had discontinued the use of the land. It has also been pointed out to us that the plaintiff himself terminated the tenancy by giving notice to vacate, and ill has, therefore, been contended that the tenancy terminated before the institution of the suit.

51. Mr. Lalnarain Sinha appearing for the appellant has conceded that the tenancy did cease to exist before the institution of the suit, but he has submitted an argument that the application of estoppel extends till the tenant restores possession to the landlord. His contention is that so long as the tenant has not surrendered possession to the landlord from whom he took the land, the estoppel created by Section 116 of the Evidence Act continues to apply. In support of that argument, he has drawn our attention to Section 108(q) of the Transfer of Property Act, which lays down that, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. The statute, therefore, clearly shows that it is incumbent on the lessee to restore possession to the lessor after the determination of the lease.

52. That being the position, I agree with the contention raised by the learned Counsel that estoppel to deny the title of the lessor continues to apply to the lessee until he has given possession to the lessor on determination of the tenancy. This view gains' support from various decided cases. In Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 P.C 96, it was held that a tenant who has 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 landlord. In M. Mujibar Rahman v. Isub Surati, AIR 1928 Cal 546, it has been held that Section 116 of the Evidence Act does not contain the whole law of estoppel and the tenant's estoppel operates even after the termination of the tenancy. The same view has been taken in Sm. Charubala Basu v. German Gomes, AIR 1934 Cal 499. In the present case it is an undisputed fact that the defendants never restored possession of the suit lands to the plaintiff and, therefore, they are estopped from challenging the title of the plaintiff or of his predecessors in interest the Central Tentulia Coal Co.

53. The third ground on which the applicability of the doctrine of estoppel is challenged is that the respondents were evicted by paramount title and, therefore, they were not estopped from denying the title of the plaintiff. The law on the subject of eviction by title paramount has been summarised by. For in his General Law of landlord and tenant, Eighth Edition, page 161, as follows:

“Eviction by title paramount means an eviction due to the fact that the lessor had no title to grant, the term the paramount title is the title paramount to the lessor which destroys the effect of the grant and with it the corresponding liability for payment of rent, so that mere eviction from, or a deprivation of the use and enjoyment of, the demised premises, or part of them, whether such eviction be lawful or unlawful, is insufficient, where the lessor's title is not affected or called in question.

To constitute a good defence in this case three conditions must be fulfilled. The eviction must have been from something actually forming part of the premises demised, the party evicting must have a good title, superior to that of the lessor and that of the lessee: and the tenant must have quieted against his will. Forcible expulsion, however, is not necessary, for it is sufficient if the tenant give up possession and the person claiming by tide paramount enter nor will it make any difference if an arrangement be then come to between the parties, by which the tenant receives compensation from the claimant for improvements made during the tenancy. Though it has been suggested that an eviction by title paramount must be actual and not constructive, it seems that it is not necessary for the tenant actually to go out of possession, and that if, upon a claim being made by a person with title paramount, he consent by an attornment to such person to change the title under which he holds or enter into a new arrangement for holding under him, this will be equivalent to an eviction and a fresh taking.”

54. The law, therefore is perfectly clear that if there has been eviction by title paramount, the lessee is not estopped from denying the title of his lessor. The question, however, is: Has this principle of law any application to the present case?

55. In the present case the plaintiff sent notice to the defendants on 13-3-1950, calling upon them; to vacate the suit lands, and that notice was received by them on 15-3-1950. On the very next day it appears that Lakshminarain Pande and his co-sharers sent another notice to the defendants telling them that the lands in question belonged to them and called upon the defendants to vacate the same or to take settlement of the same from them.

56. This notice was received by the defendants oil 20-3-1950, and they took settlement from Lakshminarain made and others of Schedule C land on 1-5-1950. There is nothing to show that, after they received notice from Lakshminain Pande and others, they made any enquiry as to the title of the plaintiff or of Lakshminarain Pande or that they informed the plaintiff about the notice given to them by Lakshminarain Pande. The case of the plaintiff is that it was absolutely a collusive affair and that when the defendants found that they had been asked by the plaintiff to vaca to the land, they in collusion with Lakshminarain Pande and others, managed to have a notice served and settlement taken. In these circumstances it is argued that in the present case there was no eviction by paramount tide.

57. I feel inclined to accept the argument advanced on behalf of the plaintiff. Section 108(n) of the Transfer of Property Act clearly provides that if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor's rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor. In Indu Bhushan v. Moazem Ali, AIR 1929 Cal 272 a Division Bench of the Calcutta High Court has pointed out that the above section throws a duty upon the lessee in order that the lessor may, if he chooses, protect his own interest and may be safeguarded against the results of a collusive eviction, submitted to by the lessee.

58. It has also been pointed out in that case that in order to succeed in getting abatement of rent by the application of the principle of eviction by title paramount, it is essential for the lessee to make out not merely that he had to leave a part of the land demised, not merely that he had to do so against his will, but that he had to do it at the instance of a person who has a right to interfere with his possession his title being superior to that of the lessor. I perfectly agree with the view taken in that case and hold that in order to claim any relief on the ground of eviction by paramount title, the tenant must establish that the person who wanted to evict him had a better title than his lessor.

59. In the present case there is nothing to show that Lakshminarain Pande and others had any better title; nor is there anything on the record, as already;observed, to show that the defendants gave any I notice to the plaintiff about the claim put forward by Lakshminarain Pandey and others so as to enable him to protect his own interest or that the defendants made any enquiry as to the title of the two rival claimants. In that view of the matter the applicability of the doctrine of estoppel cannot be challenged the defendants on the ground of eviction by title paramount.

60. The case of the plaintiff, as already noted, is that all what were done by Lakshminarain Pande and the defendants, as stated above, were done in collusion with each other to defeat the right of the plaintiff, and there was no question of any eviction by title paramount. The learned Subordinate Judge has noticed the argument of the plaintiff in this regard, but has not come of any definite conclusion on this point.

61. But a careful reading of his judgment reveals that there are indications for a finding of a collusion in favour of the plaintiff. I have already made my observation with regard to the conduct of the defendants in quickly and quietly submitting to the will of the Pandes without giving any chance to the plaintiff to protect his own interest, and I have no doubt that the facts and circumstances of this case clearly lead but to one conclusion that the notice given by Lakshminarain Pande and others and the settlement taken from then by the defendants were part of their collusive design.

62. Counsel for the respondent, however, placed reliance on the case of Nourjani Sardar v. Bisnala Sundari, 18 Cal WN 552; AIR 1914 Cal 780 in which it was held that eviction by title paramount would be a good defence to a suit for rent where the party seeking to evict should claim the rent and the tenant on such notice attorn to him. The above proposition of law, in my opinion, has been enunciated too widely, and I am unable to accept its correctness without qualification. Thera may be bona fide cases in which on mere claim by a person seeking to evict a tenant would attorn to him, e.g, where a tenant is satisfied as to his title and is unable to resist his claim, but that principle cannot apply to a case where no attempt is made by a tenant to take steps in accordance with law after the claim made by the person seeking to evict and has surrendered himself to that claimant without any rhyme or reason.

63. The learned Subordinate Judge in holding in favour of the defendants on this point has relied on the cases of Adyanath Ghatak v. Krishna Prasad, AIR 1949 PC 124, Ram Chandra v. Pramatha Nath, AIR 1922 Cal 237 and Alaga Pillai v. Ramaswami The van, AIR 1926 Mad 187. In the Privy Council case the tenancy was determined as a result of a decree and sale by Court, in the Calcutta case the lessor by his own act made the position of the lessee insecured and in the Madras case the eviction was through legal processes. These cases, therefore, have no application to the facts or the present case.

64. On consideration of the facts and circumstances of the case along with the authorities cited above, my concluded opinion is that the defendants were estopped from challenging the title of the plaintiff and of his predecessors in interest, the Central Tentulia Coal Co.

65. The next point taken by Counsel for the appellant is with regard to the notice. The learned Subordinate Judge has held that the defendants: were lessees and it was, there ore, necessary to serve notice on them to terminate the tenancy, and that the notice served on them was invalid. Mr. Lalnarain Sinha for the appellant has contended, firstly, that the defendants were merely licensees and not lessees, it was not at all necessary to serve notice on them on the facts of the present case and that, at any rate, the service of notice sent on 13-3-1950, was valid.

66. It has, therefore, first, to be ascertained whether the defendants were lessees or licensees. There is no document of settlement in this case. The, only document that is available on the record with respect to the taking of the lands by the defendants from the Central Tentulia Colliery is a letter written by them to that colliery, exhibit 1(d), dated 11-11-1941, a reference to which has already been made in the earlier part of the judgment. That letter shows that the defendants took the lands from that company on rent, and the stipulation was that the company would have in give them three month's notice if they require them to vacate the land. The letter, exhibit 1(e) dated the 18th of April, 1948 written by the defendants to the colliery, however, shows that instead of the rent of Rs. 15 as stipulated in the previous letter, the defendants were to pay to the company a rent of Rs. 60/- for schedule C land and of Rs. 30 for schedule B land from the 1-10-1946.

67. By letter, exhibit 1(f), the defendants intimated to the colliery that they have discontinued the use of the latters surface land. A reading of these three letters together gives an impression that the defendants were only licensees and not lessees. Be that as it may, in this case the question of notice has lost its importance by reason of the fact that the defendants themselves: terminated their lease or license, whatever that may be, and, as such, they were not entitled to a notice. It may also be recalled here that) when the plaintiff gave them as notice to vacate in March, 1950, they sent a reply denying the title, of the plaintiff.

68. The defendants, thus, having denied the title of the plaintiff before the institution of the suit, were not entitled to a notice at all. In this connection, reference, may be made to a passage in Mulla's Transfer of Property Act, Third Edition, p. 649, wherein it is stated that notice to quit is not necessary if the tenant has denied the landlords title before suit and this is not because the disclaimer works a forfeiture but because it is evidence of an election to put an end to the tenancy and supersedes the necessity for notice. To the same effect is the decision of the Allahabad High Court in Haidri Begam…(Plaintiff); v. Nathu…(Defendant).*, ILR 17 All 45, in which it has been held that in a suit by a landlord for ejectment of a tenant, no notice of determination of tenancy is necessary where the defendant has, prior to the suit being brought, denied the plaintiffs title as landlord and that there was any contract of tenancy between them.

69. For the reasons given above, it is manifest that the judgment of the learned Subordinate Judge is wrong on all the points on which he has defeated the claim of the plaintiff and that the suit of the plaintiff was rightly decreed by the trial Court. So far as the question of rent and damages are concerned, the rate was not challenged before the trial Court and the plaintiff is entitled to a decree for the same at the rate claimed by him.

70. In the result, the appeal is allowed, the judgment and the decree of the learned Subordinate Judge are set aside and those of the Munsif restored. The plaintiff is entitled to his costs throughout.

71. V. Ramaswami, C.J— I agree.

V.S.B

72. Appeal allowed.