This is an appeal in an action for recovery of rent on the basis of a kabuliyat alleged to have been executed by the Defendant on the 1st January, 1889 (1295, B.S). The rent claimed was for the years 1303, 1304 and 1305, B.S
The Defendant denied execution of the kabuliyat and pleaded that the land for which rent was claimed belonged to a third party, the Gauripur zemindars, and not the Plaintiffs.
The main issue raised, in the case was “whether the relationship of landlord and tenant exists between the parties;” and on this issue the lower Courts have held that the Defendant had executed the kabuliyat propounded by the Plaintiffs and had paid rent to them for some years under it. They, therefore, decreed the suit against the Defendant.
A question was raised before the Munsif as to the competency of the Defendant to go into evidence to prove the want of the title of the predecessors of the Plaintiffs to the land covered by the kabuliyat and the existence of that title in the Gauripur zemindars. They contended and the contention has been repeated here that the Defendant could show that the predecessor in title of Plaintiff to whom they had attorned by executing the kabuliyat had no interest in the land at the date of its execution. The Courts below did not allow the Defendant to go into evidence on the point.
The kabuliyat was for occupation of land already in the occupation of the Defendants and he did not enter it by virtue of the lease of the 1st January, 1889.
It is one of the first principles of the law of estoppel as applied to the relations between landlord and tenant that the latter is estopped from denying the title of the former. The rule, however, applies only to the title of the landlord who lets the tenant in. If the tenant did not obtain possession from a person who was only recognised as landlord either by express agreement, or by attornment, or formal acknowledgment by payment of rent, he may always show that his conduct was due to mistake or ignorance of facts relating to title, misrepresentation or fraud. In Gregory v. Doidge it was held that the tenant having come into possession under a former owner and having entered into an agreement with the Defendant to pay him rent in ignorance of the defect in the Defendant's title might show that the Defendant was not his landlord. The Court observed that the principle was clearly well established by Rogers v. Pitcher(2) and the language of Buller, J., in Williams v. Bertholomew(3), “If the tenant could have proved that his attornment proceeded from misrepresentation of him who claimed as remainderman, he might have proved that another was still alive and entitled.”
In the present case the Defendant denied the execution of the kabuliyat propounded by the Plaintiffs, pleaded that it was forged and denied payment of rent under it to the Plaintiffs. He did not plead that he had executed the kabuliyat and paid rent to the Plaintiffs on account of ignorance, mistake or misrepresentation. He failed to establish his pleas and he cannot now on the pleadings and the issue raised in the case be permitted to prove that the Plaintiffs are not the true landlords. The case is similar to Protap Chandra Roy Chowdry v. Jogendra Chandra Ghosh in which the Defendant tenant denied the execution of the kabuliyat propounded by the Plaintiff and when the denial was found to be false set up the title of a third person to the land. Jackson, J., observed in that case: “It seems to me that this is a change of position which the Defendant ought not to have been allowed to make, and which certainly ought not to have been made for him. It is not contended that upon discovering, as he now alleges, the want of title in the Plaintiff, he had given Plaintiff any notice that he declined to pay rent to him, or that he resiled from his engagement. The Plaintiff was allowed to retain the kabuliyat and to sue upon it, and when suing he was met with the denial that the kabuliyat was never executed. It appears to me that in that state of the case the Defendant having executed this kabuliyat and having resisted the Plaintiff's suit by denial of such execution, only expects that upon that denial being found false, the Court should give judgment in favour of the Plaintiff for his rent.”
It is, however, contended that Lal Mahomed v. Kallanus is an authority in favour of the Defendant for the broad proposition that a tenant is always competent to show the want of title of his lessor, if he was not inducted into the land by such lessor, and it is not necessary for the tenant to allege and prove coercion, fraud, mistake, or misrepresentation or any other circumstance invalidating the contract.
In Lal Mahomed v. Kallanus the Plaintiff Kallanus claimed rent as an ijaradar under one Mahomed Ismail in whose favour the Defendant Lal Mahomed had executed a kabuliyat. The Defendant used formerly to pay rent to one Ekram Hossein. On his death there was a dispute as to who were entitled to inherit his properties. The Defendant Lal Mahomed alleged in the suit for rent that he had been paying rent to Surya Mia and others before the execution of the kabuliyat to Mahomed Ismail and that the kabuliyat was obtained by coercion. He also alleged that Mahomed Ismail and others who were some of the heirs of Ekram Hossein had lost their right under a mimansapatra. It was found that the plea of coercion was false, and the Subordinate Judge who tried the case in first appeal gave the Plaintiff a decree holding, inter alia, that as the Defendant had attorned to the Plaintiff he was liable to pay the rent sued for until such time as it might be established that Surya Mia had a better title than the Plaintiff. In second appeal to this Court by the Defendant Lal Mahomed, the learned Judges Madonell and Macpherson, JJ., held that as the Plaintiff Kallanus claimed under a derivative title and as the tenant had not been inducted into the land by the Plaintiff or Mahomed Ismail the Defendant was entitled to show that rent was payable to a third person and he was not estopped by sec. 116 of the Evidence Act from disputing the Plaintiff's title. It was argued for the Plaintiff that the rule laid down in sec. 116 of the Evidence Act operated as an absolute bar to the Defendant setting up the title of Surya Mia as his landlord and it was argued on the other hand that there was no such bar as the Defendant had not been inducted into the land under the kabuliyat. No question was raised or decided as to what, if any, limitations there are of the tenant's privilege to deny the title of his lessor after attornment when he was not inducted by such lessor. We therefore think that Lal Mahomed v. Kallanus is not an authority for the wide proposition contended for by the Appellant. 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 circumstances which would invalidate the contract of tenancy.
In the circumstances of the present case, the lower Courts were right in not allowing the Defendant to adduce evidence to prove the want of title of his lessor, and we dismiss the appeal with costs.
S.C.S
Appeal dismissed.