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Charubala Basu v. German Gomez
Summary of Opinion (Jack, J.) — Appeal Allowed
Factual and Procedural Background
This appeal arises from a suit for ejectment of a sub-tenant and for mesne profits. The defendant originally held the land under a kola karsha kabuliyat for nine years executed in favour of Mr. John Louis. The defendant obtained a renewal in 1320 B.E., executing a fresh kabuliyat for nine years, and paid rent up to 1327 B.E. for the land and for three years to the plaintiff, to whom Mr. John Louis had transferred his interest in 1325 B.E. (corresponding to 1918). On termination of the lease in 1922 the plaintiff asked the defendant to quit possession and served a notice.
In the trial Court the suit was decreed: the plaintiff's title was declared and it was ordered that she should recover khas possession after eviction of the defendant. On appeal the appellate Court allowed the appeal in part: it declared the plaintiff's title and held the defendant to be her tenant, but dismissed the prayer for khas possession. This further appeal followed.
Legal Issues Presented
- Whether the learned Subordinate Judge in the Court of appeal erred in applying the provisions of Act 4 of 1928 to a suit filed in October 1923, given that the earlier statute (the "old Act") was admitted to be applicable.
- Whether a tenant who has been let into possession by a predecessor in title is estopped from disputing the landlord's title, including after termination of the tenancy.
- Whether the plaintiff is entitled to khas possession and mesne profits against the defendant who remained in possession after expiry of the lease.
Arguments of the Parties
Appellant's Arguments
- The Court of appeal erred in applying Act 4 of 1928 because the suit was filed in October 1923 and that Act did not come into force until 21st February 1929; the earlier statute (the "old Act") was applicable.
- Under the old Act, the landlord is entitled to eject the tenant on the expiry of the lease, and therefore the plaintiff should have been entitled to khas possession.
Respondent's Arguments
- The defendant (respondent) had been let into possession by the predecessor of the plaintiff and, it was argued for the respondent, because the landlord's interest was not transferable the predecessor was not entitled to transfer it to the present plaintiff; on expiry of the lease and being sued as a trespasser the defendant was entitled to dispute the plaintiff's title.
- The respondent further contended that, having been sued as a trespasser on expiry of the lease, the tenant's estoppel no longer operated.
- Fact asserted by respondent: after expiry of the lease the defendant executed a kabuliyat in 1924 in favour of the superior landlords (the howladars) and claimed to be in possession under them.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bilas Kunwar v. Desraj Ranjit Singh. AIR 1915 PC 96 | Establishes that a tenant who has been let into possession cannot deny his landlord's title; Section 116 of the Evidence Act supports this estoppel. | The court relied on this authority to hold that the defendant, having been let into possession by a predecessor, was not entitled to dispute the plaintiff's title while he had not surrendered possession. |
| Muzibar Rahaman v. Isub Surati. AIR 1928 Cal 546 | Recognizes the principle that the tenant's estoppel operates even after termination of the tenancy. | The court cited this case to reject the respondent's contention that the estoppel ceased on termination of the tenancy and to uphold the plaintiff's right to khas possession. |
Court's Reasoning and Analysis
The court examined two main strands: (1) the applicability of Act 4 of 1928 and (2) the operation of tenant's estoppel where a tenant was let into possession by a predecessor in title.
On the statutory point the court agreed that the Court of appeal was wrong to allow the appeal on the ground of applying Act 4 of 1928 to a suit filed in October 1923, since the earlier Act was applicable and, under that old Act, the landlord is entitled to eject the tenant on expiry of the lease.
On the estoppel point the court applied established authorities. It held that where a tenant has been let into possession by a predecessor in title he cannot deny the landlord's title so long as he has not openly restored possession by surrender. The court relied on Bilas Kunwar v. Desraj Ranjit Singh (AIR 1915 PC 96) and the principle in Section 116 of the Evidence Act to support this rule.
The court observed that the defendant had not restored possession to his landlord; although the defendant executed a kabuliyat in 1924 in favour of the howladars and claimed to hold under them, the plaintiff remained in possession through her tenant and related eviction proceedings were being heard along with this appeal. The court further accepted the authority of Muzibar Rahaman v. Isub Surati (AIR 1928 Cal 546) for the proposition that the tenant's estoppel continues to operate even after the tenancy terminates. The court found it "clearly impossible" to hold that immediately upon termination the tenant would be entitled to question the landlord's title.
Applying these principles to the facts, the court concluded that the plaintiff was entitled to khas possession, mesne profits, and costs, and that the decree of the lower appellate Court must be set aside and the decree of the trial Court restored.
Holding and Implications
Holding: The appeal was allowed and the decree of the trial Court restored. In particular:
- DISPOSITION: The appellate Court's dismissal of the prayer for khas possession was set aside; the trial Court decree in favour of the plaintiff was restored.
- Remedies awarded: The plaintiff is entitled to khas possession, mesne profits at the rate of Rs. 12 per year with interest at 6% per annum until realization, and costs throughout.
Implications: The decision enforces the established rule that a tenant who has been let into possession cannot dispute his landlord's title while in possession and that this tenant's estoppel survives the termination of the tenancy. The opinion relies on existing authorities for these principles; it does not indicate that a new legal precedent is being created beyond the application of those established rules to the facts of this case.
Jack, J.:— This appeal has arisen out of a suit for ejectment of a sub-tenant and for mesne profits. The defendant originally held the land under a kola karsha kabuliyat for nine years which he executed in favour of Mr. John Louis. He got a renewal of the lease in 1320 executing a fresh kabuliyat for nine years and paid rent up to 1327 BE. for the land and for three years to the plaintiff to whom Mr. John Louis had transferred his interest in 1325 corresponding to 1918. On the termination of the lease in 1922 the plaintiff asked the defendant to quit possession and had a notice served upon him. In the trial Court the suit was decreed. The plaintiff's title as claimed was declared and it was ordered that she should recover khas possession after eviction of the defendant.
2. In the appellate Court the appeal was allowed and the prayer for khas possession was dismissed. The plaintiff's title to the land was declared and it was declared that the defendant was her tenant. The appellant urges that the learned Subordinate Judge in the Court of appeal below erred in law in applying the provisions of Act 4 of 1928 to this case inasmuch as the suit waa filed in October 1923 whereas that Act did not come into force until 21st February 1929 and the defendant was holding the land as an under-raiyat and inasmuch as it is admitted that the previous Act is applicable to this case.
3. In these circumstances the Court of appeal below was certainly wrong in allowing the appeal on the ground on which it was allowed inasmuch as under the old Act, which was applicable, the landlord is entitled to eject the tenant on the expiry of his lease. However the decree a the Court below has been assailed on the ground that as the defendant had been let into possession by the predecessor of the plaintiff he was not entitled to deny his landlord's title as he seeks now to do for the respondent it has been urged inasmuch as the landlord's interest was not transferable he was not entitled to transfer it to the present plaintiff and on the expiry of the lease the respondent having been sued as a trespasser was entitled to dispute the title of the plaintiff. The case in Bilas Kunwar v. Desraj Ranjit Singh . AIR 1915 PC 96 is however an authority for holding that he is not entitled to dispute the plaintiff's title. Their Lordships of the Judicial Committee of the Privy Council said in that case that Section 116 of the Evidence, Act is perfectly clear on this point and rests on the principle well established by many English cases that a tenant who had been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord.
4. In this case there is no question that the tenant, the defendant, has not restored possession to his landlord. He claimed to be in possession under the superior landlord, the howladars, in whose favour he has executed a kabulyat subsequent to the expiry of his lease, namely, in 1924. But it is clear that the plaintiff is still in possession of the land through his tenant inasmuch as the landlord sued to evict the plaintiff and the appeal in that case was being heard along with the appeal in this case. It is urged by the respondent that the lease having terminated and the defendant having been sued as a trespasser the tenant's estoppel no longer operates. But it has been held that the tenant's estoppel operates even after the termination of the tenancy. In this connexion we have been referred to the case of Muzibar Rahaman v. Isub Surati . AIR 1928 Cal 546 in which reference is made to several other cases in which this principle has been recognized. It is clearly impossible to hold that immediately on the termination of the tenancy the tenant would be entitled to question his landlord's title. We therefore think that the plaintiff is entitled to khas possession and the decree of the lower appellate Court must be set aside and that of the Court of first instance restored. The plaintiff will recover mesne profits at the rate of Rs. 12 per year with interest at six per cent per annum till realization. The plaintiff is entitled to his costs throughout.
Mallik, J.:— I agree.
K.S
5. Appeal allowed.
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