(1) The question for determination in this second appeal is whether the defendant is estopped from denying the title of the plaintiff, his landlady, under section 116 of the evidence act.
(2) The facts which have given rise to this second appeal may be stated : the defendant executed a kadapa on the 3rd of august, 1947, in respect of the land comprised in survey nos. 166/6 and 168 in favour of the plaintiff. The appeal is now confined to survey no. 168, which is of the extent of acre 1 - 70 cents. According to the defendant, this extent of land comprised in the latter survey number was in his encroachment and that of his predecessors - in - title for over sixty years and as such the plaintiff has no interest or title in the said survey number. He also contended that the government is a necessary party, that there is no relationship of landlord and tenant between the plaintiff and himself in respect of survey no. 168 and that the suit is liable to be dismissed on that score.
(3) The case of the defendnt that the encroachment and reclamation of the suit land was on his own behalf without reference to the plaintiff and that the same has been in his possession for more than sixty years has been found to be untrue. Both the courts held that the relationship of landlord and tenant existed between the plaintiff and the defendant in respect of survey no. 168 and that the defendant was not entitled to set up the title of the government.
(4) It is contended before me by mr. Venkatesam, learned counsel for the appellant, relying upon the decisions in alaga pillai v. Ramaswami thevan, (1915) 49 m. L. J. 742, valid muhammad v. Savakutti koyi, (1933) 66 m. L. J. 355, and guruswami nadar v. Ranganathan, (1953) 2 m. L. J. 511, that the principle of estoppel, laid down in section 116 of the evidence act does not extend to a case where the defendant pleads an eviction by a person having a title paramount and entitled to immediate possession or under threat of eviction by such a person.
(5) In the first of the case cited, the facts found were these : the defendants were originally let into possession of certain property by an ancestor of the plaintiff. Subsequently the government served on them a notice under section 7 of the madras land encroachment act, whereupon the defendants paid the assessment due under the act and accepted patta from the government. The plaintiff did not challenge by suit the right of the government to take proceedings under the land encroachment act, but instituted a suit in ejectment against the defendants, whereupon the latter pleaded that the title to the lands was in the government. Devadoss and waller, jj. , held that section 116 of the indian evidence act did not bar such plea being set up. At page 745 the following observations, on which the learned counsel for the appellant strongly relies, are made : -
"exhibit iii (b) is a notice issued under s. 7 and on the failure of the defendants to comply with the terms of the notice eviction would have followed as a mat er of course. The defendants paid the assessment and a year before the suit was brought they accepted patta from the government. Exhibit iii (b) , the notice under section 7 of the madras land encroachment act (iii of 1905) , amounts in law to eviction. If the plaintiff had title to the land he should have brought a suit against the government for a declaration that the land is his and for the recovery of the penal assessment levied from him as well as from his tenants. He did not take any action against the government. The explanation given by mr. Muthiah mudaliar is that the plaintiff was a minor at the time and he attained majority only within three years before the suit. But that would not save his right against the government."
(6) The facts on which the decision of the learned judges rested were that there was a notice of eviction, that the plaintiff did not take any action to have that notice set aside or cancelled, that the government accepted the assessment from the defendants and that the defendants were granted a patta. On these facts, the division bench came to the conclusion that there was no bar of estoppel under section 116 of the evidence act.
(7) In the second of the cases, venkatasubba rao, j. , discussed the scope of the principle of estoppel embodied in section 116 of the evidence act and cited certain english decisions which were not referred to in alaga pillai v. Ramaswami thevan and affirmed the principle laid down in the former decision. In the last case, satyanarayana rao and rajagopalan, jj. , after an exhaustive review of the case iaw bearing on the subject, summarised their conclusions at page 514 in the following words : -
"from this, the exception follows that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title - holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title - holder."
(8) These decisions were referred to and followed in an unreported decision of the learned chief justice in krishnayya v. Rajamma, s. A. No. 25 of 1953, delivered on i4th october, 1955. The ratio of the decision of the learned chief justice is this : -
"if a person, who had attorned to a person claiming by title paramount, is not estopped from pleading that the plaintiff's title expired subsequently, the same rule must a fortiori apply to a case where the defendant has become the owner, for, even in the latter case, he has renounced the obligation of surrendering possession to the plaintiff. If so, the defendant is not estopped from urging and proving that the plaintiff's title has expired subsequently."
This decision is also relied upon by the learned counsel for the appellant for a slightly different contention which i will deal with at a later stage.
(9) In the light of the well - settled principles established by the above cited decisions, i propose to examine the facts of the present case. The defendant, as i have already stated, executed a kadapa in favour of the plaintiff on the 3rd of august, 1947. On the date when the kadapa was executed, the land was situated in an 'estate'. Subsequently the estate was taken over by the government under the provisions of the madras estates (abolition and conversion into ryotwari) act (xxvi of 1948) , sometime in september, 1949. On the 24th august, 1950, the supervising tahsildar issued a notice, both to the 1st plaintiff as well as to the defendant, under section 7 of madras act (iii of 1905) , which runs as follows : -
"it is learnt that you have unauthorisedly occupied the land mentioned in the schedule given hereunder. The said land belongs to the government. You are therefore asked to show cause why action should not be taken under the
provisions of section 5 or section 6 of the madras land encroachment act."
(10) On receipt of this notice the 1st plaintiff filed a statement before the supervising tashildar on the 2nd september, 1950, in which the 1st plaintiff, while acknowledging receipt of the notice on the 31st august, 1950, submitted that this land together with the inam comprised in survey no. 166/6 was sold to her under a registered sale - deed dated 27th april, 1915 and that therefore she was entitled to continue in possession of the land. The defendant submitted that he reclaimed a portion of survey no. 168 and that he had been raising dry crops on the lands since 6 or 7 years and requested the tahsildar that the land might be assigned to him. On receipt of these two statements from the 1st plaintiff and the defendant respectively, the supervising tahsildar by his proceedings dated the 28th january, 1951, which is marked as exhibit a - 5 in the case, passed the following order : -
"survey no. 168 of chodavaram is a vagu poramboke. Bobbili gouresu (defendant) of chodavaram states that he reclaimed a portion of it measuring acre 1 - 60 cents and has been raising dry crops on the land since 6 or 7 years and requests that the land may be assigned to him. Pasupuleti ramayamma (1st plaintiff) however states that this land together with the inam (survey no. 166/6) was sold to her by a registered sale - deed dated 27th april, 1915 and filed the documents. I have examined the sale - deeds dated 29th april, 1911 and 27th april, 1915. From the boundaries in both the sale - deeds it is seen that the poramboke vagus in question (survey no. 168) was also in the possession and enjoyment of the inamdars and that survey no. 168 also was sold away to pasupuleti ramayamma in 1915. The claim of bobbili gouresu is evidently false and cannot hold water. The encroachment will be booked in favour of pasupuleti ramayamma."
(11) As a result of this order passed by the supervising tahsildar, not only was there no eviction of the plaintiff but her title to the land in dispute was affirmed while the claim of the defendant to the land was rejected. On these facts, the question for consideration is whether the principle enunciated in the decisions above cited is applicable. It is true, as has been stated in the above decisions, that it is open to the tenant, even without surrendering possessions, to show that since the date of the tenancy the title of the landlord came to an end. That the defendant has not shown. It is also open to the tenant to show that he was evicted by a paramount title - holder. Of this there is no proof. He can also show that even thougg there was no actual eviction or dispossession from the property, under a threat of eviction, he had attorned to the paramount title - holder. In this case there has been a threat of eviction in the sense that a notice was issued under section 7 of the madras land encroachment act. But, as has already been stated by me, to the notice issued under section 7 calling upon both the 1st plaintiff and the defendant to show cause why action under section 5 or section 6 of the act should not be taken, the 1st plaintiff submitted a statement wherein she claimed that her predecessors - in - title had been in possession of the property and this property was sold to her under a sale - deed of the year 1915. This claim of the plaintiff was accepted by the supervising deputy tahsildar which means that the notice of eviction given to the plaintiff was no longer in force. It has not been shown in this case that the order of the supervising tahsildar passed on the 28th january, 1951 has been set aside by any competent authority. The result is that the notice issued under section 7 of the madras land encroachments act never took effect. But, what mr. Venkatesam contends is that one need not look into what happened subsequent to the issuing of the notice and the fact that a notice was issued is enough to show that there was eviction. The principles enunciated in the decisions above cited cannot certainly apply to a case where the notice of eviction was withdrawn by reason of the authorities, who issued that notice, having been satisfied that the notice could not or should not have been issued. What is more important, there is no proof in this case that by reason the notice given by the supervising tahsildar, under section 7, the defendant made an attornment to the government that he paid cist or obtained a patta from the government. If so, the contention of the learned counsel for the appellant must fail.
(12) The learned counsel for the appellant then contended on the authority of the unreported decision of the learned chief justice in krishnayya v. Rajamma, s. A. No. 25 of 1953 delivered on 14th october, 1955, that if a suit filed under section 7 (xi) (cc) of the court - fees act cannot be disposed of without going into the question of title, the suit will have to be dismissed. The defendant has executed a lease in favour of the plaintiff accepting the plaintiff's title to the land covered by survey no. 168 and the plaintiff has filed this suit paying court - fee under section 7 (xi) (cc) , and it is the defendant that pleaded that there has been an eviction by a person having a title paramount. This contention has not been upheld and, therefore, there is no substance in the contention that the suit has to be dismissed.
(13) An application has been filed before me for admission of a receipt purporting to have been issued by the village munsif in respect of the land in dispute, as evidencing the payment of the assessment by the defendant from fas is 1360 onwards. I have dismissed that application holding that the requirements of order 41, rule 27, civil procedure code, have not been satisfied. Under that provision in order that additional evidence may be allowed to be produced, the court must be satisfied that it is necessary for the disposal of the case that the document sought to be admitted must be received in the evidence or in the alternative, there must be sufficient cause. I am not satisfied that either of the requirements is satisfied in this case. The document now sought to be produced also requires proof, and i do not see any valid reason why this document should be received.
(14) For all the reasons given above, i am satisfied that the conclusions reached by the lower appellate court are correct. This second appeal must therefore fail, and it is dismissed with costs. No leave. Appeal dismissed.