Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Douglas Grant and Co.
  • Hy. S.L. Polak and Co.
  • Dingle Foot
  • C.S. Rewcastle
  • Charles Bagram
Judges
  • Sir John Beaumont
  • Sir Madhavan Nair
  • Reid
  • Morton Of Henryton
  • Justice Lords Uthwatt
Acts
  • S. 116. Evidence Act,
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Douglas Grant and Co.
  • Hy. S.L. Polak and Co.
  • Dingle Foot
  • C.S. Rewcastle
  • Charles Bagram
Judges
  • Sir John Beaumont
  • Sir Madhavan Nair
  • Reid
  • Morton Of Henryton
  • Justice Lords Uthwatt
Acts
  • S. 116. Evidence Act,
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

This appeal arises from a judgment and decree dated 21 April 1943 of the High Court of Judicature at Patna which reversed a judgment and decree dated 27 May 1940 of the Subordinate Judge, Dhanbad, Bihar.

The underlying suit was commenced on 11 January 1939 by respondent 1 (referred to in the opinion as "the plaintiff") against the appellant (referred to as "defendant 1") and respondent 2 ("defendant 2"). The plaintiff sought a declaration of title and a decree for possession in respect of plot No. 2192, with buildings thereon, in the district of Manbhum, Pargana Jharia.

Background events of relevance in the opinion:

  • Defendant 2 had earlier (in Suit No. 43 of 1919) established title as proprietor of the Jharia Raj estate, including the property in suit; notwithstanding this, the plaintiff's name was recorded as owner in possession in the local Record of Rights on 26 January 1925.
  • Defendant 2 filed Suit No. 57 of 1925 in the Subordinate Judge's Court at Dhanbad seeking declaration of title and vacant possession of plot No. 2192 (and other relief). On 14 September 1926 an ex parte judgment declared defendant 2 entitled and entitled to vacant possession; the plaintiff's applications to set aside that ex parte decree were dismissed (3 May 1927 and on appeal 24 July 1928).
  • Between the ex parte decree and the dismissal of the setting-aside application the plaintiff granted defendant 1 an oral monthly tenancy of plot No. 2192 at Rs. 30 per month.
  • In 1927 a receiver was appointed and substituted as decree-holder for defendant 2. The receiver applied for execution on 29 November 1927; writ of execution issued 24 February 1928; on 27 February 1928 the court bailiff purported to give symbolical possession (beat of drum) and reported that on certain plots, including No. 2192, occupants were residing and the outer doors were closed; employees of the decree-holder signed a receipt for delivery of possession for plot No. 2192. The opinion treats such symbolic delivery as effectively terminating the possession of the plaintiff and defendant 1 on 27 February 1928.
  • Defendant 1 testified that immediately after delivery he obtained permission from defendant 2 and from an official in the receiver's office to remain in occupation; he continued to pay Rs. 30 per month to the plaintiff but claimed payment was made out of fear and not as rent. The trial Judge accepted this; the High Court rejected it and treated the payments as rent, concluding defendant 1 remained the plaintiff's tenant.
  • On 28 December 1937 defendant 2 granted defendant 1 a permanent lease (Exhibit G) of plot No. 2192 at an annual rent of Rs. 51; thereafter defendant 1 ceased paying Rs. 30 to the plaintiff. The High Court regarded this lease as voluntary attornment and not an eviction by title paramount.
  • Defendant 2's written statement admitted the plaintiff's claim against defendant 1 and alleged the lease (Exhibit G) was obtained by undue influence and fraud. Defendant 2 did not give oral evidence, the suit was dismissed against him and the dismissal was upheld on appeal; defendant 2 did not appear before Their Lordships on this appeal.

Legal Issues Presented

  1. Whether the estoppel created by S.116 of the Evidence Act (that a tenant cannot during tenancy deny the landlord's title) was terminated by eviction by title paramount (i.e., whether execution of the decree and symbolic delivery of possession on 27 February 1928 terminated the plaintiff's tenancy such that defendant 1 could no longer be estopped).
  2. Whether, after 27 February 1928, defendant 1 occupied as a tenant of the plaintiff (a fresh tenancy inferred from continued payments of Rs. 30) or as a licensee/occupant under permission from defendant 2 or the receiver.
  3. Whether the plaintiff retained any right to remove the materials or house erected on the land (i.e., whether such a claim survived the 1925 suit and the execution of the decree).

Arguments of the Parties

Appellant (Defendant 1) — as presented in evidence

  • After the symbolic delivery of possession on 27 February 1928, defendant 1 says he obtained permission from defendant 2 and from an official in the receiver's office to remain in occupation of the house on plot No. 2192.
  • He continued to pay Rs. 30 per month to the plaintiff, but asserted that such payments were made out of fear of the plaintiff and therefore were not payments of rent.
  • He relied on being permitted to occupy by defendant 2 or the receiver (i.e., as a licencee rather than as tenant of the plaintiff) until the lease was granted in 1937.

Respondent 1 (Plaintiff) — claims and contentions

  • Asserted title to the land and sought declaration and possession against defendant 1 based on estoppel arising from tenancy and S.116 Evidence Act.
  • Maintained that defendant 1 remained his tenant because of the continued payments of Rs. 30 per month after 27 February 1928.
  • Additionally claimed a right to remove the materials of the house erected on the property, arguing such a right survived even if he was not entitled to possession.

Defendant 2 — positions appearing in pleadings

  • In a written statement defendant 2 admitted the plaintiff's claim against defendant 1, while alleging that the lease (Exhibit G) granted to defendant 1 was obtained by undue influence and fraud.
  • Defendant 2 did not give oral evidence and did not appear on this final appeal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Thakur Sri Radha Krishna, Chanderji v. Ram Bahadur, 22 CWN 330 : AIR (4) 1917 PC 197 Authority supporting that a court bailiff's symbolic delivery of possession under Order 21, Rule 86 (by intimation such as beat of drum) effectively terminates possession of the previous occupant. The court relied on this precedent to conclude that the symbolic possession given by the bailiff on 27 February 1928 effectively terminated the possession of the plaintiff and defendant 1 as of that date.

Court's Reasoning and Analysis

The opinion's analysis proceeds in discrete steps, tied closely to the facts proved or admitted in the record:

  1. Determination of the original tenancy: Their Lordships held that the original tenancy between the plaintiff and defendant 1 was determined on 27 February 1928 by execution of the decree dated 14 September 1926, relying on the bailiff's symbolic delivery of possession (supported by the cited precedent).
  2. Assessment of defendant 1's post-execution status: The court accepted the trial Judge's finding (and found no reason to reject) that immediately after symbolic delivery defendant 1 obtained permission from defendant 2 and from an official in the receiver's office to remain in occupation. On that basis, defendant 1's occupation after 27 February 1928 was treated as that of a licensee of defendant 2 or the receiver, not as tenant of the plaintiff.
  3. Treatment of payments of Rs. 30: Although the continued payment of Rs. 30 per month to the plaintiff could, if standing alone, support an inference of a fresh monthly tenancy, Their Lordships found such an inference inconsistent with the broader facts. After execution both parties knew the plaintiff had no interest and defendant 1 had obtained permission to occupy from the true owner; the court accepted the explanation that payments may have been made to placate the plaintiff or out of fear, not as rent. Accordingly, the payments did not constitute rent creating a fresh tenancy.
  4. Effect on estoppel under S.116 Evidence Act: Because the original tenancy ended on 27 February 1928 and defendant 1 occupied thereafter as the licensee of the true owner (defendant 2 or the receiver), there was no continuing landlord-tenant relationship between the plaintiff and defendant 1. Therefore no estoppel under S.116 arose that would prevent defendant 1 from disputing the plaintiff's title after that date.
  5. Claim to remove house materials: The court reasoned that any right the plaintiff had to remove materials or the house should have been raised in the 1925 suit against defendant 2. The decree in that suit made no distinction between land and the house on it, and symbolical possession was given for the whole plot. Consequently, the plaintiff's claim to remove materials had lapsed.
  6. Conclusion on relief and costs: On the above factual and legal findings Their Lordships advised allowing the appeal, setting aside the High Court's decree and restoring the Subordinate Judge's decree, and ordered that respondent 1 pay the appellant's costs of the High Court appeal and the costs of this appeal to His Majesty.

Holding and Implications

APPEAL ALLOWED; the decree of the High Court dated 21 April 1943 is set aside and the decree of the Subordinate Judge dated 27 May 1940 is restored.

Immediate consequences for the parties:

  • Defendant 1 is not regarded as estopped from disputing the plaintiff's title after 27 February 1928 because the original tenancy was terminated by execution and defendant 1 occupied thereafter as licensee of defendant 2 or the receiver.
  • The plaintiff's asserted right to remove the materials or house erected on the land has lapsed and was held to have been forfeited by failure to raise it in the 1925 suit; the decree in that suit made no distinction between land and house and symbolical possession was given for the whole plot.
  • Costs were awarded against respondent 1: he must pay the appellant's costs in the High Court appeal and the costs of this appeal to His Majesty.

The opinion addresses the proper application of executed decree, symbolic delivery of possession, and the factual question whether subsequent payments created a fresh tenancy. The opinion does not purport to announce a new legal principle beyond its application of the cited precedent and the statutory estoppel in S.116 Evidence Act to the facts of this case.

Show full summary ...

    Adyanath Ghatak v. Krishna Prasad Singh And Another

    Sir John Beaumont.-

    This is an appeal from a judgment and decree dated 21st April 1943, of the High Court of Judicature at Patna, which reversed a judgment and decree dated 27th May 1940, of the Subordinate Judge, Dhanbad, Bihar.

    [2] The suit out of which this appeal arises was commenced on 11th January 1939, in the Court of the Subordinate Judge, Dhanbad, Bihar, by respondent 1, who will hereafter be referred to as "the plaintiff," against the appellant, who will hereafter be referred to as "defendant 1," and respondent 2, who will hereafter be referred to as "defendant 2." The plaintiff claimed a declaration of his title to the land in suit and a decree for possession against defendant 1, and other relief which is not material to the present appeal. The property in suit was a plot No. 2192, with buildings thereon, situate in the district of Manbhum, Pargana Jharia.

    [3] J The claim of the plaintiff against defendant 1 was based on the contention that defendant 1 was his tenant and estopped from disputing his title to the land in suit. The learned Subordinate Judge, whilst not questioning the general proposition of law, embodied in India in S. 116. Evidence Act, which precludes a tenant of immovable property during the continuance of the tenancy from denying that his landlord had at the beginning of the tenancy a title to such property, considered that the estoppel had been terminated by the eviction of the plaintiff and defendant 1 by title paramount. In appeal, the High Court agreed that eviction by title paramount would terminate the estoppel, but considered that there had been no such eviction, and that defendant 1 was estopped from disputing the title of the plaintiff. Accordingly the High Court decreed the plaintiff's suit against defendant 1. It is apparent that the difference between the Courts in India arose upon the facts proved and the inferences to be drawn from them, and this is the matter which falls for determination in the present appeal.

    [4] Prior to the commencement of the suit the plaintiff claimed to been titled to the property in suit which formed part of the Jharia Raj estate. Defendant 2 in Suit No. 43 of 1919, which originated in the Subordinate Court of Alipore and was finally decided in appeal by His Majesty in Council, had established his title as proprietor of the Jharia Raj estate including the property in suit. Notwithstanding this the plaintiff had got his name recorded as the owner in possession of the property, plot No. 2192, in the local Record of Rights on 26th January 1925.

    [5] On 19th August 1925, defendant 2 filed Suit No. 57 of 1925 (hereinafter referred to as "the 1925 suit") in the Court of the Subordinate Judge of Dhanbad, Bihar, against the plaintiff and other parties praying for a declaration of his title to (inter alia) plot No. 2192, for vacant possession of such plot and other plots, and for cancellation of the entry of the plaintiff's name in the Record of Rights. On 14th September 1926, judgment was given in the 1925 suit, ex parte as against the plaintiff who did not appear at the hearing. The learned Judge made a declaration that defendant 2 was entitled to the property in suit and to get vacant possession of the same. Thereafter, the plaintiff applied under the provisions of the Code of Civil Procedure to set aside the ex parte decree made against him in the 1925 suit. This application was dismissed on 3rd May 1927, and an appeal from the order of dismissal was dismissed on 24th July 1928,

    [6] On a date which has not been definitely determined but which was between the passing of the ex parte decree of 14th September 1926, and the dismissal of the application by the plaintiff to set aside such decree, the plaintiff granted to defendant 1 an oral monthly tenancy of the property in suit, plot No. 2192, at a rent of Rs. 30 per month.

    [7] Some time in 1927, a receiver of the property was appointed by the High Court at Calcutta, and the receiver was substituted as a decree-holder for defendant 2 in the 1925 suit. On 29th November 1927 the receiver applied to the Court to execute the decree of 14th September 1926, The petition for execution prayed for getting symbolical possession of various plots including plot No. 2192.

    8 On 24th February 1928, the Court issued a writ of execution to the Court bailiff directing him to put the receiver in possession of the properties covered by the decree and authorising him to remove any person bound by the decree who might refuse to vacate the property. On 27th February 1928, the bailiff gave symbolical

    possession intimating the contents of the writ by beat of drum. In his report to the Court, the bailiff stated that on certain plots, including plot No. 2192, people were residing and as the outer doors were closed he could not give delivery of possession by having the houses vacated. On the same day, the employees of the decree-holder on his behalf signed a receipt for delivery of possession of plot no. 2192. As defendant 1 was in occupation of plot No. 2192 as a tenant of the judgment-debtor, their Lordships think that the Court bailiff was justified in giving symbolical possession under O. 21, R. 86, and that thereby the possession of the plaintiff and defendant 1 was effectively terminated on 27th February 1928: See Thakur Sri Radha Krishna, Chanderji v. Ram Bahadur, 22 CWN 330 : (AIR (4) 1917 PC 197).

    [9] The main difficulty in the case lies in determining what happened after that date and what legal position resulted. In his evidence defendant 1 stated that on the day after delivery was made as aforesaid he approached defendant 2 who permitted him to remain in occupation of the house in suit and said that he would see to it later on. Defendant 1 says that he also approached the office of the receiver who also permitted him to occupy the house. He admits that after 27th February 1928, he continued to pay the sum of Rs. 30 per month to the plaintiff, but his case is that he paid that sum, not as rent, but out of fear of the plaintiff. The learned Subordinate Judge believed this story, but the High Court rejected it, and held that the Rs. 30 per month were paid as rent, and that accordingly defendant 1 remained the tenant of the plaintiff. On 28th December 1937, defendant 2 granted to defendant 1 a permanent lease, exhibit G, of the plot no. 2192 at an annual rent of Rs. 51. Thereafter defendant 1 remained in occupation of the property, and ceased to pay the sum of Rs. 30 per month to the plaintiff. The learned Judges of the High Court considered that the taking of this lease amounted only to a voluntary attornment to defendant 2, and did not constitute eviction by title paramount. The difficulty in ascertaining the facts is enhanced by the attitude adopted by defendant 2 who put in a written statement in which he admitted the claim of the plaintiff against defendant 1, and alleged that the lease, Ex. G, was obtained by undue influence and fraud on the part of defendant 1. Defendant 2 did not give evidence, and the suit was dismissed against him as also was the appeal to the High Court. He has not appeared on this appeal.

    10. In their Lordships' view the position is this. The original tenancy between the plaintiff and defendant 1 was determined on 27th February 1928, by execution of the decree of 14th September 1926. Their Lordships see no reason to reject the story of defendant 1 that immediately after this date he got permission from defendant 2 and from an official in the office of the receiver to remain in occupation of the property in suit, a story which was not contradicted by defendant 2 or the receiver, and was believed by the trial Judge. If this story be accepted then defendant 1, after 27th February 1928, was in occupation of the property as licensee of defendant 2 or the receiver. The payment of Rs. 30 per month to the plaintiff no doubt creates a difficulty. If this transaction stood alone, it would justify an inference that defendant 1 was a monthly tenant of the plaintiff, and, since the old tenancy had been determined by eviction by title paramount, a fresh tenancy would have to be inferred commencing after 27th February 1928. In their Lordships' opinion however any such inference would be inconsistent with the facts proved. After the execution of the decree of 14th September 1926, both parties knew that the plaintiff had no interest in the property, and defendant 1 had obtained a right to occupy from the true owner. Defendant 1 may well have been ready to continue to pay the amount of his former rent to the plaintiff in order to keep him quiet and prevent him from attempting to interfere with the grant of the lease which defendant 1 hoped to obtain from defendant 2. The fact that in this suit defendant 2 is siding with the plaintiff against defendant 1 suggests that the latter's fear of the influence of the plaintiff may not have been without justification. At any rate, whatever the reason for the payment, their Lordships are satisfied that after 27th February 1928, the payment of the sum Rs. 30 by defendant 1 to the plaintiff was not a payment of rent, that defendant 1 was in occupation as licensee of defendant 2 or the receiver until 1937 when the lease, Ex. G, was granted under which defendant 1 remained in occupation. On this view of the facts, no question of defendant 1 being estopped from disputing the title of the plaintiff as his landlord arises since the plaintiff was not his landlord at any time after 27th February 1928, when the original tenancy was determined.

    [11] In the case of the plaintiff, as respondent 1 delivered in this appeal, he claimed that even if he was not entitled to possession of the property in suit, he was nevertheless entitled to remove the materials with which the house on the property had been constructed. Assuming that the house in question was erected by the plaintiff at bis own expense, any right which he had to remove the house or the materials of which it was constructed should have been claimed in the 1925 suit as against defendant 2. The decree in that suit drew no distinction between the land and the house erected thereon, and symbolical possession was given in execution of the decree of the whole plot. Whatever right the plaintiff may have had originally, the claim to remove the materials with which the house was erected has long since lapsed.

    [12] For these reasons, their Lordships will humbly advise His Majesty that this appeal be allowed, that the decree of the High Court of Judicature at Patna dated 21st April 1943, be set aside, and that the decree dated 27th May 1940, of the Subordinate Judge, Dhanbad, Bihar, be restored. Respondent 1 must pay the costs of the appellant in the appeal to the High Court and the costs of this appeal to His Majesty.

    Appeal allowed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Adyanath Ghatak v. Krishna Prasad Singh And Another
    (Dec 7, 1948)