Sarjoo Prosad, C.J:— These Letters Patent Appeals arise out of the same judgment of Mr. Justice Ram Labhaya, dated 4-5-56, by which he disposed of Second Appeals Nos. 37 and 38 of 1954. The appeals relate to two different suits between the same parties in relation to the same subject-matter, though for different reliefs. Second Appeal No. 37 of 1954 related to Title Suit No. 58 of 1952, in which there was a prayer for ejectment of the defendants, while Second Appeal No. 38 of 1954 related to Rent Suit No. 20 of 1952, in which there was a claim for arrears of rent due.

2. The two suits were tried and disposed of together in the Courts below. The trial Court dismissed the suits, but the appellate Court decreed the same. The Second Appeals, therefore, arose out of those judgments. The learned Judge of this Court allowed the appeals and dismissed the suits, but he gave leave to prefer these appeals under the Letters Patent.

3. The facts which are material are these. A certain premises which is the subject-matter of the suits, belonged originally to one Yusufur Rahman. It was in occupation of the defendants as tenants under him. In 1947, Yusufur Rahman sold the premises to Musst. Lachmi Agarwalini, mother of the plaintiffs, but the defendants continued in occupation of the premises as monthly tenants under Musst. Lachmi, who died in April, 1950, leaving behind the plaintiffs, her sons, and several daughters. After her death, the plaintiffs were mutated in respect of the lands over which the premises stand. If is alleged by the plaintiffs that the defendant No. 1, representing the defendants, on the death of Musst. Lachmi, attorned to them and was allowed to continue as a tenant under them. The defendants as such, continued to pay rent to the plaintiffs until June, 1951, where after they made default in payment of rent.

4. The plaintiffs then, after serving a notice to quit on the defendants, instituted the two suits in question, for ejectment of the defendants from the premises, and also for recovery of arrears of rent and compensation. They claimed also that they required the premises for their own bona fide purposes.

5. The defendants contested the suits on various grounds. They challenged the plaintiffs' right to sue as landlords. They also denied having defaulted in payment of rent and challenged the validity of the notice for eviction. The trial Court accepted the defendants' pleas and dismissed the suits, essentially on the ground that the plaintiffs were not competent to institute the suits and to recover any arrear rent on behalf of themselves alone. On appeal, the appellate Court reversed that, judgment. The findings of the lower appellate Court have been lucidly summarised in the judgment under appeal as follows:—

“(1) That there was an arrangement between the plaintiffs and the defendants, under which the defendants undertook to pay rent to the plaintiffs;

(2) that the question of title in the case was not material; and

(3) that the defendants were estopped from pleading that the plaintiffs had no title to the suit lands.”

6. Those findings were evidently findings of fact, but there were several questions raised before the learned Judge in this Court, it was urged: (1) that the plaintiffs admittedly had no title to the property; (2) that no fresh arrangement of tenancy had been proved; (3) that there was no arrangement to the plaintiffs in place of Musst. Lachmi the deceased; and (4) that the defendants were not at all precluded from pleading that the plaintiff's had no title either to recover rent or to eject them. The question as to whether there was any fresh arrangement of tenancy proved between the parties, resulting in an attornment to the plaintiffs, was entirely a question of fact, and if that question had been properly answered by the learned Subordinate Judge on appeal, it is difficult for us to appreciate how the other two questions could arise in a suit of this nature.

7. The two points which were urged before the learned Subordinate Judge were:—

(1) Whether the plaintiffs were the landlords, and, as such, were competent to sue in ejectment;

(2) whether they Were entitled to recover the arrear rent with respect to the premises in the suit.

8. The plaintiffs' case was that after the death of their mother, Musst. Lachmi Agarwalini the defendant No. 1 went to their house, which was only about 200 feet away from the premises in suit, and made arrangements to remain in the premises on payment of the previous rent. The defendants, on the contrary, contended that this was false; that the defendant No. 1 was blind at the time of the death of Musst. Lachmi and, therefore, he could never have arranged afresh with the plaintiffs for staying in the premises in question on agreeing to pay rent to the plaintiffs.

9. The defendants asserted that they knew about the death of Musst. Lachmi for the first time in July, 1951, and that since then they began depositing the rent for the disputed premises in Court. On these contentions, the learned Subordinate Judge postulated the point for his decision as follows:

“I shall now proceed to examine first as to whether or not the defendants accepted the plaintiffs as their landlords after the death of Musst. Lachmi Agarwalini.”

10. This proposition of fact clearly arose for determination on the case set up by the parties. He examined the evidence of the plaintiff Gourisankar Agarwalla on this point, as also the evidence of the defendant No. 1 when he asserted that he did not know about the death of Musst. Lachmi for a long time until July 1951. He found that he was unable to accept the defendant No. 1's plea in view of various circumstances to which he referred in his judgment.

11. He was right in pointing out that the defendants lived only about 200 feet away and, therefore, he could not belie that the defendant No. 1 did not know about the death of Musst. Lachmi. He was also or in view that the alleged blindness of the defendant No. 1 in 1950 was an afterthought, and that the blindness, if any, must have occurred very much later.

12. He also referred to the fact that on the basis of the receipts, Exts. B(1) to B(5), the defendants paid rent for the premises in question upto June, 1951, although Musst. Lachmi died in April 1950. He further examined several other documents on record which, according to him, unmistakably went to prove that the plaintiffs were the landlords of the premises in question and had been acknowledged as such by the defendants.

13. He refers to Ex. 9, dated 12-1-1952, and the reply thereto Ex. 10, and points out that the defendants never stated in this reply that the plaintiffs were not their landlords, but, on the other hand, they admitted tenancy under the plaintiffs for the premises in suit. The significant recital in the reply, to which he refers, is as follows:

“That my said clients did never fail to pay the house rent as arranged between the parties ………….”

14. He rightly inferred from this recital that it was abundantly clear that there was some arrangement between the plaintiffs and the defendant No. 1, which belied the case of the defendant No. 1 that there was no such arrangement. The learned Subordinate Judge also refers to the petition, Ex. 13, under which rents were deposited in Court by the defendants, expressly admitting the plaintiffs as owners of the premises in question. Paragraph 1 of Ex. 13, as quoted in his judgment, runs as follows:

“That the applicant above-named occupies a shop house owned by the opposite parties at Marwaripatty, Dibrugarh, at a monthly rent of Rs. 50/- …………….”

15. There were various other similar petitions on record with similar recitals, and they led to the same inference. The learned Subordinate Judge then considered the argument which appears to have been advanced on behalf of the defendants, namely, that the payment of rent under Exts. B(1) to B(5) was not in the name of the plaintiffs themselves, but in the name of Musst. Lachmi.

16. The explanation given by the plaintiffs was that as the name of the mother, ‘Lachmi’, was suspicious, they allowed that name to continue in the receipts. The learned Subordinate Judge observed that, whether the explanation was right or wrong, the fact that the name of the mother appeared in the receipts, did not make any difference, because the other evidence which he had already discussed, all led to the conclusion, from which there was no escape, that the defendants accepted the plaintiffs as their landlords.

17. The finding on this point, in my opinion, is quite emphatic, and I should think lucid and logical; yet the learned Judge in this Court has interfered with this finding of fact and taken upon himself the responsibility of examining the evidence which was amply discussed by the final Court of facts, and, in our view, quite correctly. Even assuming that the finding of the learned Subordinate Judge was erroneous on that point, and that a different view of the evidence could be taken, if it were open to this Court to take such a view, it had to be remembered that, as a Court of Second Appeal, this Court was completely precluded from doing so, when, on the face of it there was no error of law ??? out by the ??? counsel for the defendant.

18. If, therefore, this finding of the ??? Sub-ordinate Judge stands, as in ??? on our ??? has to stand it being a ??? finding of fact, he would be right in observing that no further question of title arose in the case. The suit, as framed, depended upon the establishment of the relationship of landlord and tenant between the parties, and if the plaintiffs had succeeded in establishing that relationship, then and question of title which might arise between the plaintiffs and some other claimants who were not parties to the suit, would be altogether beyond the scope of the suit.

19. The learned Subordinate Judge was also justified in pointing out that the defendants having acknowledged the plaintiffs as their landlords, as found by him earlier, they were estopped from challenging the plaintiffs' title under Section 1 of the Indian Evidence Act. On this question, ??? great deal of argument has been advanced by the learned Advocate General before us who appears for the defendants.

20. He has lifted up his contentions to a high plane and he argues that even if the finding of the learned Subordinate Judge on the question of attornment is accepted, under the law it is still open to him to contend that the plaintiffs are not the owners of the property and, as such, have no right to eject the defendants. Mr. Ghose has rightly pointed out that the contention in this form was not placed before the learned Judge whose judgment is on appeal before us.

21. Indeed the learned Judge proceeded to decide the matter as if the finding on the point, to which we have referred, was open to question before him but since the learned Advocate General has placet that submission before ms, as a pure question of law, it is just as well to deal with the matter. He has, in particular, placed reliance upon certain observations of Field J., in “Lodai Mollah v. Kally Dass Roy, ILR 8 Cal 238 (A).

22. In that case, the learned Judge refers to the fact that a suit for arrears of ??? raises two questions: (1) whether the relationship of landlord and tenant exists between the plaintiff and the defendants; and (2) whether the arrears of ??? in claim are due. The first question made have to be decided again in one of the two possible cases: (i) where the plaintiff has let the dependant into possession of the land; and (ii) where the plaintiff claims under a title derive from the person who let the defendant into possession.

23. The learned Judge, in dealing with the class of cases where the plaintiff's title is ??? points to the usual defence which may be available to such a party. He says that the ??? ways in which title is derived are— (a) by assignment, including gift, sale, devise, lease; and by. Inheritance, including adoption ???

24. In the learned Judge observes that as ??? defendant and the person from ??? plaintiff's title is derived, the defendant ??? any of the defences which would be open to him against the landlord who let him into occupation; but he may have ??? a further defence; there may be a denial of the facts which constitute the derivation, or denial of the assignment, or of the adoption or of the validity of either; or of the plaintiff being the heir of the original person from whom he professes to derive title by instance’.

25. In our opinion, these observations do not assist the defendants, because, it is not rely on the basis of a derivative title that the plaintiffs are claiming in the present case; the are liming by virtue’ of a definite attornment ??? the defendants. The case would, in our ??? fall almost under the first category defined the learned Judge, namely, as if the defendant were let into occupation of the land by the plaintiffs.

26. In such cases, as Field J., recognised the question of title is confined to the plaintiff and the defendant only, and is not concerned with any third party claiming title adversely the plaintiff. No such party can properly be made a party to the trial of those questions. The other decision in “Lal Mahomed v. Kallanus, ILR 11 Cal 519 (B), to which our attention has been drawn, is undoubtedly of some assistance the learned counsel.

27. In that case, the defendant had ??? as a Kabuliat in favour of the plaintiff and pa rent to the plaintiff, but he set up the plea tit the Kabuliat had been executed under ??? and, therefore, he was not bound by the same. The Courts below disbelieved the defendant's ??? and held that although there was some dispute between the plaintiff and another person also the title to the property, since the defendant had attorned to the plaintiff, he was liable to sued for rent by the plaintiff until such in as it might be established that somebody ??? a better title. In Second Appeal, it was ??? before the learned Judges that by ??? the kabuliat in question, the defendant was no estopped from showing that the plaintiff had title, and that the lower appellate Court ought have allowed the defendant to prove the title of the persons set up by him, notwithstanding ??? execution of the kabuliat in favour of the plaintiff who claimed under a derivative title. To learned Judges, without assigning — if I am say so with respect — any adequate reason in their elision, observed that the defendant was not so ??? by Section 116 of the Evidence Act. They thought that the words “at the beginning of the tenancy” in that section could only apply to cases in which the tenants were put into possession of the tenancy by the person to whom they had attorned, and not to a case like the one before them, where the tenants had previously been in possession. They also appear to have overlooked the fact that Section 116 of the Evidence Act, speaks of only one kind of estoppel, and that the general principles of estoppel could still be applicable to the case.

28. On the strength of these observations the learned Advocate General contends that in the instant case before us, the defendants being in occupation of the lands from before, were not estopped from questioning the title of the plaintiffs even though they may have been taken to have attorned to the plaintiffs we are relieved of examining the correctness of this decision to any great extent in view of certain other decisions, to which we shall presently refer. The above decision came to be noticed with some prominence in “Ketu Das v. Surendra Nath Sinha”, 7 Cal WN 596 (C).

29. In dealing with that case, the learned Judges observed that the case was not an authority for the wide proposition which was put forward before them, namely, that, in spite of attornment, it was open to the tenant to question the title of the landlord. They pointed out that in the earlier case of Lal Mahomed (B), (ibid), there was no question raised or decided as to what, if any, limitations there were of the tenant's privilege to deny the title of his lessor after attornment, when he was not inducted by such lessor. The learned Judges proceeded to comment on the earlier case thus:

“We do not suppose that the learned Judges intended to lay down that a person in occupation of land may select his rent-receiver and execute a solemn agreement promising to pay him rent and pay him rent for a time with full knowledge that he had no right to the land and, thereafter at any time decline to pay him rent pleading want of title in him and without attempting to show any other circumstance which would invalidate the contract of tenancy.”

30. With due deference, we are inclined to agree with these observations of the learned Judges.

31. The decision of the Judicial Committee in Krishna Prosad Lal v. Baraboni Coal Concern, Ltd., AIR 1937 PC 251 : 64 Ind App 311 (D), supports the line of reasoning that in case of such an attornment, estoppel will operate against the tenant. In that case, their Lordships held that Section 116 of the Evidence Act, does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant.

32. It deals with only one kind of estoppel. The section postulates that there is a continuing tenancy, 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 words “at the beginning of tenancy” in Section 116 of the Evidence Act, do not give a ground for the contention that when a person already in possession of land, becomes tenant to another, there is no estoppel against his denying his landlord's title.

33. It is, therefore, too much to contend that a tenant in possession, if he has in fact attorned to a landlord, would still be entitled to challenge his derivative title, because at the beginning of the Page: 192tenancy he was not let into occupation by the, landlord in question. The beginning of the tenancy in such a case would refer to the beginning of the new tenancy between the tenant and the landlord by virtue of the attornment, and the tenant's occupation of the land thenceforward would be referable to that attornment.

34. This decision of the Privy Council, therefore, is a clear answer to the contention of the learned ??? General, that there was no estoppel against the defendants. Indeed their Lordships referred, in the body of the judgment, to a decision in John Agabog Vertannes v. James Golder Robinson, 54 Ind App 276 : AIR 1927 PC 151 (E), where the Board applied Section 116 of the Evidence Act, to a case in which it was difficult to say that the tenant had obtained possession from the landlord.

35. Delivery of possession, for the purpose of creating a lease, must not necessarily be physical delivery of possession at the time of the agreement; but even constructive delivery of possession may be sufficient for the purpose of constituting a lease under Section 107 of the Transfer of Property Act. See “Mohan Lal v. Ganda Singh”, AIR 1943 Lah 127 (FB) (F).

36. We are, therefore, unable to concede to the argument of the learned Advocate General that, on the facts found in this case, the learned Subordinate Judge was not justified in holding that under Section 116 of the Evidence Act, the defendants were estopped from denying the plaintiffs' title to the disputed premises as their landlords.

37. The finding of the learned Judge in this Court, when he holds: “I have come to the conclusion that no fresh arrangement or agreement between the plaintiffs and the defendants has been proved, and that rent was being paid exactly in the same way as it was being paid during the life time of Musst. Lachmi”, is unwarranted, both in fact and in law.

38. As I said, in the first place, it was not open to the learned Judge to question the finding of fact; and, in the second place, there is a fallacy in the assumption that the rent was being paid exactly in the same way as it was being paid during the life time of Musst. Lachmi. If it is correct that the defendant No. 1 knew about the death of Musst. Lachmi and that even then he paid rent to the plaintiffs and had attorned to them, accepting them as his landlord, then the payment of rent would not be in the same manner as it was made during the life time of Musst. Lachmi.

39. The conditions of payment are in an entirely different set up. It is trite to say that a finding of fact is sacrosanct in Second Appeal unless vitiated by any error of law; but even then perhaps it may be apposite to refresh our memory with the important dictum of Sir John Wallis in “Secretary of State v. Rameswaram Devasthanam Trustee”, 61 Ind App 163 : (AIR 1934 PC 112) (G), where his Lordship observed:

“The question is mainly one of fact, and it is well settled that under Section 100 of the CPC, the High Court has no jurisdiction to reverse the findings of fact arrived at by the lower appellate Court, however erroneous, unless they are vitiated by some error of law. Sub-sequently to the date of the judgment under appeal, the Board has had occasion to emphasize the fact that this rule is equally applicable to cases, such as this, in which the findings of the lower appellate Court are based on inferences drawn from the documents exhibited in evidence.”

40. The inference that there was, in fact, an attornment by the defendants to the plaintiffs, was entirely an inference of fact; and this inference has/been arrived at by the learned Subordinate Judge after a thorough and sifting examination of the evidence on record. We are unable to agree the existence of the relationship of landlord an tenant, as pleaded by the plaintiffs, was an ??? of law, nor are we prepared to accept ??? comment in the judgment of the learned Judge that the finding at which the learned Sub-ordinate Judge Wad arrived, was based on presumption aid speculations.

41. The other contentions which Mr. Lahiri his advanced before us are—

(1) that the certificate granting leave to appal under the Letters Patent, does not disclose any reasons by the learned Judge and, therefore the certificate is invalid, and the appeal should no be entertained by this Court.

42. He argues, upon the analogy of Sections 11 of the CPC and responding Articles of the Constitution. The ??? in our opinion, does not held good in ??? case. It is to be remembered that the leave we grated by the learned Judge on the date of which he delivered the judgment, & he must have done so with full consciousness of the fact that it was a fit case for appeal under the Letters Patnt.

43. There is no other alternative category under which the learned Judge could grant leave. We, therefore, find it unnecessary to review some of the cases which have been cited by the learned count in support of his contention. Here, the only thing which the learned Judge had to consider was whether it was or was not a fit ??? for appeal, and having delivered judgment, granted leave on the ground that it was such case.

44. Therefore, the contention of the learned counsel cannot be entertained. In any case, the irregulary in not mentioning any grounds in the certificate, even if there was any, could not affect the ??? of the appeal itself, if the learned. Judge thought that the Letters Patent appeal could be entertained in the circumstances, and grant leave accordingly.

45. The other contention of the learned counsel is that the learned Subordinate Judge did not discus the evidence on the other points, namely whether the premises were required bona fide ??? the plaintiffs and whether there was due and pro per nice of ejectment served on the defendant ??? the tenancy. It is, therefore, ??? the points should be re-investigated.

46. Its true that the learned Subordinate Judge has ??? discussed the evidence specifically of those this, but it is quite obvious, on a perusal of hisecision, that he had in details considered the ??? and applied his mind to it, before he final arrived at his conclusion on those points in the ??? part of his judgment. We, therefore, think that those findings also cannot be challenged before us now.

47. The appeals are, therefore, allowed. The decision of the learned Judge of this Court must, be set aside; the judgment and decrees of the learned Subordinate Judge must be restored; and the suit decreed with costs throughout. We allow two months' time to the defendants vacate the premises; failing which, the plaintiff will be entitled to execute the decrees.

48. Deka, J.:— I agree.

49. Appeals allows.