Krishna Prasad Sing v. Adyanath Ghatak

Meredith, J.:— This is an appeal by the plaintiff against a decree dismissing his suit for declaration of title and recovery of possession over plot no. 2192 in mauza Jharia together with the building standing thereon. The defendant no. 1, who is the Jharia Raj doctor and the tenant of the house, has contested, the appeal. The defendant no. 2 who does not appear, is the Raja of Jharia, and the appellant is his uncle. The allegations in the plaint and written statement so far as now material are briefly as follows:

In 1847 the plaintiff's father was given a khorposh grant of the land in suit with other lands by the then Raja. The plaintiff succeeded his father in 1916, and the present defendant no. 2 succeeded to the Raj. In 1919-1920 the plaintiff enclosed the suit land with a compound wall, and built and furnished a house thereon called after himself ‘Krishna Kunja’. In 1925 in the finally published Record-of-rights the plaintiff's name was recorded as khorposhdar. The same year the Raja brought a suit to eject the plaintiff from all lands recorded in his name. On the 14th of September, 1926, this suit was decreed ex parte, the appellant's case being that he did not contest the suit as he and the Raja, had settled their disputes and the Raja promised not to execute the decree. The appellant, however, filed an application for re-hearing, and when that was dismissed filed an appeal against the order, which was also dismissed. In October, 1926, after the suit had been decreed against him, but while the subsequent proceedings were pending, the appellant let out the house on a monthly tenancy on a rental of Rs. 30 per month to the defendant no. 1. On the 27th of February, 1928, at the instance of a Receiver, who had shortly before been placed in charge of the Haj, possession was delivered in execution of the decree. The writ for delivery of possession was under Order XXI, rule 35, Code of Civil Procedure, and it was so executed by the peon, except with regard to the present suit land and house. Finding the house locked up, the peon with regard to plot 2192 gave only symbolical possession in accordance with the provisions of Order XXI, rule 36. The defendant no. 1, however, continued to pay rent to the appellant, or to a creditor of his on his behalf, up to December, 1937. On the 28th of December, 1937, however, the defendant no. 1 took a permanent lease from the defendant no. 2 at a rental of Rs. 51 per annum and without salami. Thereupon he declined to pay rent to the appellant's creditor, and repudiated the tenancy. This operating as a forfeiture, the appellant brought the present suit for ejectment.

The Raja filed a written statement supporting the plaintiff's case upon almost all points, and stating that he had executed the lease of 1937 under the undue influence of his doctor. He did not, however, appear at the hearing. The defendant no. 1 contested the suit, denied the plaintiff's title, and asserted that he was bound by the decree of 1927. The house, he said, had actually been built by the Raja, and not by the plaintiff. He (defendant no. 1) as a result of the decree and delivery of possession was compelled to attorn to the Raja. He was allowed to remain on in possession of the house by the Raja as his licensee, and he only continued to pay rent to the plaintiff to avoid incurring his displeasure, as he was a powerful and influential man in Jharia. In 1937 the Raja was about to sue him for ejectment, and the defendant no. 1 was, therefore, compelled to take a lease from him. He asserted further that after taking settlement from the Raja he had spent over Rs. 2,000 in making new structures on the land.

The learned Subordinate Judge held upon the evidence that the house had been constructed by the plaintiff, but the plaintiff was bound by the decree and had no title as khorposhdar. Nor had he title by adverse possession, since he could not tack his possession before the decree to his possession after it, and in any case the delivery of possession operated as a break in plaintiff's adverse possession. The defendant no. 1 had been evicted by title paramount, and was consequently not estopped from denying the plaintiff's title. His lease from the Raja was valid and binding, and the plaintiff being a trespasser was not even entitled to compensation, or to remove the materials under Section 51 of the Transfer of Property Act. He accordingly dismissed the suit with costs.

The appellant no longer presses his case that the decree of 1926 was collusive and not binding upon him, but he presses his claim to title by adverse possession. He asserts further that there has been no eviction by title paramount, and the defendant no. 1 is estopped from challenging his lessor's title. He is, therefore, in any view entitled to a decree for ejectment against defendant no. 1 even if he cannot get a declaration of his title as against defendant no. 2. Failing that, he is entitled to compensation for the value of the house, or at least to take away its materials.

The first question argued was whether the appellant had title by adverse possession, and I shall, therefore, begin with this. There can, in my judgment, be no doubt that the Subordinate Judge was wrong in holding that the decree itself created a break in the adverse possession so as to prevent tacking of possession before and after the decree. The respondent upon this point relies upon certain Bombay cases, of which a typical one is Akbaralli Mir v. Abdul Ajiji, in which it was held that the period of adverse possession is calculated for the benefit of the party setting up adverse possession, and if a decree is passed against him, then there is an end of that period and he must if he wishes to acquire a good title by adverse possession start afresh after the decree. I cannot accede to that view. I cannot understand how a mere decree, even a decree for possession, which is not executed, can possibly in itself interrupt adverse possession. The decree merely emphasises its adverse character. This question is, to my mind, set at rest by the Privy Council in Subbaiya Pandaram v. Mahammad Mustapha Marcayar. In the course of his judgment in that case Lord Buckmaster said: “Their Lordships do not think that the decree had that effect. At the moment when it was passed the possession of the purchaser was adverse, and the declaration that the property had been properly made subject to a trust disposition, and therefore ought not to have been seized, did not disturb or affect the quality of his possession; it merely emphasised the fact that it was adverse. No further step was taken in consequence of that declaration until the present proceedings were instituted, when it was too late.” Again in Kesho Prasad Singh v. Madho Prasad Singh the Privy Council used language indicating that in their view an unexecuted decree was not an interruption in adverse possession. There, after saying that possession had certainly been adverse all along from 1887 to the present day, Lord Shaw mentioned that the plaintiff had sued for ejectment and obtained a decree. He then says: “He accordingly obtained his decree, but having obtained his decree, nothing was done with regard to the possession of the villages of the respondents, and it is not denied that the respondents and their predecessors did continue, notwithstanding that decree, to possess, as they have done to this day (the two villages in question).”

In Singaravelu Mudaliar v. Chokkalinga Mudaliar a Division Bench of the Madras High Court severely criticised Akbar Ali v. Abdul Ajij, and adopted the view suggested by these Privy Council decisions. Spencer, J. made the following observations, which, if I may say so, accurately express my own view: “But I am with due respect quite unable to understand how the judgment of a Court declaring that one of the parties has no legal title to the properties in suit, can have the effect of causing his possession to cease to be adverse to the opposite party from the moment of its pronouncement, so long as possession remains undisturbed. Such a judgment would rather appear to emphasise the adverseness of the possession of the trespasser as against the true owner. It cannot benefit the true owner who omits for some reason or other to take steps to eject the trespasser before the latter completes the period of possession required for the establishment of a prescriptive title.” In that case their Lordships would not agree that there could be any distinction in principle between a declaratory decree and a decree for possession which the decree-holder failed to execute within the statutory period. This seems to me obviously correct. A decree for possession after declaration of title obviously becomes merely a declaration of title once the right to execute it is gone.

Next arises the question whether the delivery of possession on the 27th of February, 1928, though defective in certain respects, nevertheless operated to break momentarily the adverse possession. This is not so easy a question as that just dealt with, and the decisions of the various High Courts display a wide divergence of opinion.

It is necessary to indicate, first, exactly what did happen. The defendant first party, as he took a lease after the decree, was certainly bound by the decree and liable to be ejected in execution thereof. Consequently the writ for delivery was rightly issued under Order XXI, rule 35, Code of Civil Procedure, and the peon was authorised to remove any person bound by the decree who might refuse to vacate the property. The peon, however, delivered possession only in accordance with the provisions of Order XXI, rule 36. In his report he stated that he had given symbolical possession. He said:

“Be it stated that there are houses and buildings in plot nos. 2192 (and two others) in which people reside, but the outer doors being closed I could not give delivery of possession by having the houses vacated. Delivery of possession of the rest has been regularly given.”

He, however, stated that he had intimated the contents of the writ to the general public by beat of drum. The receipt for delivery of possession specifies that actual possession had been received for a number of plots, but symbolical possession only of three plots including 2192 with which we are concerned.

Thus, the question which arises is, where there is a tenant under the judgment-debtor in adverse possession who is bound by the decree, and the peon instead of delivering possession under rule 35 delivers possession erroneously under rule 36, leaving the tenant in possession, will this irregular delivery operate to break the adverse possession of the judgment-debtor?

There is only one direct decision of the Patna High Court, and that is of a single Judge. In Maharaja Pratap Udai Nath Sahi Deo v. Bhaiain Sunderbans Koer Adami J. said: “The delivery of symbolical possession even erroneously operates as actual possession against the judgment-debtor and his representatives.” The Calcutta High Court has consistently taken the same view. In Joggobundhu Mitter v. Puranund Gossami a Full Bench of five Judges, following a previous Full Bench decision in Joggobundhu Mukerjee v. Ram Chunder Bysack held that symbolical possession is effective against the judgment-debtor, and a suit brought within twelve years of that event is not barred by limitation.

Those were cases where symbolical possession had rightly been given, but in Hari Mohan Shaha v. Baburali the same principle was applied to a case where the judgment-debtor was in possession, and, therefore, actual possession ought to have been given, and not symbolical possession. Maclean, C.J said: “But be that as it may, we have the fact which cannot be got over, that possession, call it symbolical possession if you will, was given by a Civil Court in this case to the plaintiff…………………… In this case, it seems clear that symbolical possession which in law is possession, was given on the 8th November, 1881. It may be that it was wrongly given by reason of the fact that actual possession ought to have been given under section 318 of the Code, but still possession was given to the plaintiff by a Civil Court; and, under the circumstances, it seems to me that the period of limitation must begin to run from the date of that possession being given.”

In 1917 in Thakur Sri Sri Radha Krishna Chanderji v. Ram Bahadur the Privy Council referred, with approval, to Joggobundhu Mukerjee v. Ram Chunder Bysack, and held that symbolical possession availed to dispossess the defendant sufficiently because they were parties to the proceedings in which it was ordered and given. Thus, where symbolical possession has been rightly given, the matter must be regarded as settled by the Privy Council. In Janoki Nath Shaha v. Baikantha Nath Ghattak a Bench of the Calcutta High Court referred to the above Privy Council decision and also to certain Bombay decisions which I shall notice presently, and held that as against a defendant claiming through the judgment-debtor the plaintiff was entitled to treat the delivery of symbolical possession as equivalent to delivery of actual possession. After referring to Bombay cases their Lordships say: “In those cases a distinction is drawn as regards the right of the purchaser at a sale in execution of immoveable property in certain circumstances to actual possession and in other circumstances to formal or symbolical possession. The view of the Bombay High Court seems to be that the decisions of this Court and of the Privy Council to which I have referred only apply to those cases in which the purchaser at the auction sale is entitled in the circumstances to delivery of formal possession………………………… It is conceded that there is no authority in this Court for the distinction recognized in the Bombay cases and in the present case at any rate I am not prepared to consider whether any such distinction would be consistent with the view taken in decisions of this Court by which I am bound and which have received the approval of the Privy Council.”

The Madras High Court has adopted the Calcutta view. A single Judge of that Court in Kamayya v. Bhimarasetti Paridasi had held that where a judgment-debtor is actually in possession and the decree-holder is entitled to actual possession he cannot get anything less than that and if he does not get actual possession he cannot rely upon symbolical possession. This case came before a Bench in Letters Patent appeal [Kamayya v. Mahalakshmi], and the decision was reversed, and it was expressly held that where actual delivery is applied for in execution but only symbolical possession is delivered, the judgment-debtor who is a party to the execution proceedings and is bound by the decree is not entitled to deny that he was disposed even though he was not actually evicted. He cannot, therefore, claim to be in adverse possession from the date of his original entry. Their Lordships dissented from the Bombay view, and said: “The controversy would seem to have been concluded by a ruling of the Privy Council, Radha Krishna v. Ram Bahadur which approved Joggobundhu Mukerjee v. Ram Chunder Bysack. It is, no doubt, true that both of these were cases where the only delivery to which the decree-holders were entitled was symbolical, but their Lordships of the Privy Council laid down a rule of general application to the effect that symbolical possession availed to dispossess the defendants sufficiently because they were parties to the proceedings in which it was ordered and given.” Reference was also made to a Lahore case, Harbhagwan v. Taj in which Jai Lal, J. held that the delivery of symbolical possession even erroneously amounts to delivery of actual possession so far as the judgment-debtor and his representatives are concerned. They finally said that the balance of authority was overwhelmingly in favour of the view that, in a case like this, a judgment-debtor, who is a party to the execution proceedings and bound by the decree, is not entitled to deny that he was dispossessed, even though he was not actually evicted. They thought that the rule laid down by the Privy Council was so worded as to be of general application.

I come now to the Bombay cases. In Mahadev Sakharam Parkar v. Janu Namji Hatle a Full Bench held that symbolical possession is not real possession, nor is it equivalent to real possession under the Code of Civil Procedure except where the Code expressly or by implication provides that it shall have that effect. Merely formal possession of immoveable property cannot prevent limitation running in favour of the judgment-debtor where the latter remains in actual possession and the property is not in the occupation of a tenant or other person entitled to occupy the same. This view was re-affirmed in Shridhar Madhavrao Dhopaokar v. Ganpati Punja Godse. It is to be noted, however, that in a later case, Mahadevappa Dundappa Hampiholi v. Bhima Doddapa Moled Kutarnahatti, Maclead, C.J, after referring to Mahadev Sakharam Parkar v. Janu Namji Hatle, said: “But in Radha Krishna v. Ram Bahadur it was decided by the Privy Council that symbolical possession is sufficient to interrupt adverse possession where the person setting up adverse possession was a party to the execution proceedings in which the symbolical possession was given. Their Lordships approved of the decision in Joggobundhu Mukerjee v. Ram Chunder Bysack. This decision of the Privy Council appears to throw considerable doubt on the decision of this Court in Mahadev Sakharam Parkar v. Janu Namji Hatle which may, when the occasion arises, have to be re-considered.”

In Jang Bahadur Singh v. Hanwant Singh a Full Bench of the Allahabad High Court chose to follow Mahadev Sakharam Parkar v. Janu Namji Hatle, and tried to confine the dictum of the Privy Council in Radha Krishna v. Ram Bahadur to cases where symbolical possession had been delivered, because it was the appropriate mode. They held in short that where possession is delivered in the mode appropriate to a particular case, such delivery of possession would give a new start to limitation. But where symbolical possession had been delivered when actual possession could and should have been delivered, there being no tenant on the land, then it would not operate to save limitation.

There are two cases of the Patna High Court which, though not strictly in point, throw some light upon the question. In Ram Prasad Ojha v. Bakshi Bindeshwari Prasad Sinha*, JJ. had to consider a case where the plaintiff purchased certain property in execution of a mortgage decree in 1908, and took out delivery of possession in 1915. In 1927 lie sued again, and the defendants contended that the suit was barred by limitation, their possession being adverse from 1908. It was contended for the defendant that the delivery of possession being only symbolical and he not being a party to the execution proceedings but a purchaser in execution of a money decree, he was not bound by that delivery of possession and such delivery of possession did not give a fresh start for limitation to the plaintiff. Noor, J., first, pointed out that when it is said that symbolical possession is not binding upon a third party but actual possession is, it is only meant that when a decree-holder or an auction-purchaser has been put in actual occupation of the property everybody else has been ousted from it, and consequently dispossessed. On the other hand, if the Court simply proclaims that the decree-holder or auction-purchaser has been given possession, but on account of the property being tenanted they have not been placed in physical possession, such a delivery of possession can only be binding upon those who were parties to, the proceedings, or on those who claim through them. The question will always be, he said, not what was the mode of delivery of possession, but who has in fact been ousted by it. He went on to find that the purchase by the defendants was after the passing of the decree in the mortgage suit and so subject to lis pendens. That being so, the defendants though not parties in the suit were bound by the decree. Therefore, the formal delivery of possession was effective against them, and it was only from the date of the delivery of possession that the defendants' possession became adverse. In Mt. Berunika Kuer… v. Francis Thakur…Opposite Party., J. sitting singly expressed similar views.

Ram Prasad Ojha v. Bakshi Bindeshwari Prasad Sinha being a decision of a Division Bench is binding upon us, and as I read it is in effect a decision that symbolical delivery of possession even where there is no tenant on the land is effective against the judgment-debtor and persons claiming through him (though not against third parties), and will give a fresh start to limitation. Apart from that, however, I myself feel no doubt at all as to how the question should be decided upon general principles. The law has no sympathy with a trespasser, and consequently will presume the possession of the rightful owner even where it is necessary to employ a legal fiction for the purpose. Thus, for example, where the trespasser's possession is interrupted by inundation the law at once presumes restoration of the true owner's possession during the period of interruption, even though he may never have been near the land. Similarly, one trespasser cannot tack on his own adverse possession to that of a previous trespasser. Between the two, by a legal fiction, it will be presumed that there was momentary possession of the true owner. Upon the same principle symbolical delivery of possession must, in my judgment, be held in law to amount at least to a momentary restoration of possession of the true owner, that is the decree-holder, against the judgment-debtor. Where there is a, tenant upon the land who is not bound by the decree the correctness of this proposition cannot be challenged in view of the Privy Council decision in Radha Krishna v. Ram Bahadur. Can the position be any different where there is a tenant on the land who is bound by the decree but who, either by accident or by choice of the decree-holder, is not ousted? I can see nothing upon which to found a distinction. This is not a case where actual ouster is the only means of delivering possession. Where there is a tenant on the land bound by the decree, it is clearly open to the decree-holder to choose for himself whether he will expel the tenant, or will allow him to remain as his own tenant. The case is not exactly similar to that considered in Jang Bahadur Singh v. Hanwant Singh, where there was no tenant at all on the land. Even in such a case, however, in my judgment, symbolical delivery of possession, though not the proper mode and not appropriate to the case, nevertheless cannot be treated as a complete nullity in favour of the trespasser. Symbolical possession is treated in law as a momentary possession of the decree-holder as against the judgment-debtor. If it is so treated where there is a tenant on the land, upon what principle can it be said that it should not be so treated in the prima facie clearer case where there is no one on the land but the judgment-debtor himself? The only difference I can see is that in one case the proceedings have been strictly regular, while in the other case there is this defect that the decree-holder has not been given all that he could and should have been given. Is that defect sufficient to render the delivery a complete nullity? In my judgment, it is not, and I think my analysis of the various rulings shows that on the whole my view is in accord with the balance of authority. I hold, therefore, that the plaintiff's adverse possession could date only from the 27th of February, 1928, when possession was delivered against him, and as the present suit was instituted on the 11th of January, 1939, the plaintiff cannot claim any title by adverse possession. He now claims no other title. So it must be held that as against the defendant no. 2 he has no title to the land in suit.

Next, however, arises the question whether the defendant no. 1 can take advantage of that, whether he can at all challenge the plaintiff's right to evict him, by establishing his want of title. No tenant of immoveable property can during the continuance of the tenancy deny his landlord's title at the time of the inception of the tenancy. The same estoppel applies against a licensee. This well established principle of law has been embodied in section 116 of the Indian Evidence Act. Section 116 applies in terms only to cases where the tenancy continues, but it is not exhaustive, and upon the authority of the Privy Council a similar estoppel exists in the case of the tenant holding over. The tenant cannot deny his landlord's title while he continues in possession. He must either have given up possession, or must have been evicted by title paramount. In Bhaiganta Bewa v. Himmat Bidyakar Sir Lancelot Sanderson, C.J and Sir Asutosh Mookerjee firmly rejected the contention that section 116 of the Indian Evidence Act was an intentional departure from the English law on the subject, and was intended to narrow the English principle which had repeatedly been applied in India before the enactment of the Evidence Act. In Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern, Limited the Privy Council expressed the same view. Sir George Rankin said (page 8): “Whether during the currency of a term the tenant, by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term, is estopped from disputing the claim which he has once admitted are important questions, but they are instances of cases which are outside section 116 altogether; and it may well be that as in English law the estoppel in such cases proceeds upon somewhat different grounds and is not wholly identical in character and in completeness with the case covered by the section.”

Again, in Mujibar Rahman v. Sheikh Isab Surati the Calcutta High Court held that section 116 of the Indian Evidence Act does not contain the whole law of estoppel, and the tenant's estoppel from questioning his landlord's title at the time of the demise operate even after the termination of the tenancy. Currimbhoy and Company, Limited v. Creet was a case where the Privy Council held that the estoppel could not be avoided without first restoring possession.

In Bilas Kunwar v. Desraj Ranjit Singh the Privy Council laid down that the estoppel applies in the case of a tenant who is holding over after notice to quit. Again, mere going over to another person and paying rent to him behind the back of the landlord will not alter the nature of the tenant's possession, and will not enable him to deny the landlord's title: see Parbutti Dassi v. Ram Chand Bhattacharjee and Abdul Hakim Mia v. Pana Mia Miaji.

It is clear, therefore, that the defendant no. 1 cannot escape the estoppel merely by saying that his tenancy under the plaintiff was terminated, either by the delivery of possession, or by the plaintiff's own act in determining the tenancy and bringing the present suit for ejectment Nor can he escape it merely by saying that he came to an arrangement with the defendant no. 2 and attorned to him. Neither of these by itself is enough. The estoppel disappears, however, if the landlord's title is extinguished subsequent to the inception of the tenancy, or if there is eviction by title paramount. The defendant no. 1 does not claim that the plaintiff's title was determined subsequent to the lease. His case is that the plaintiff was a mere trespasser even when the tenancy was created. He does, however, rely upon eviction by title paramount, and contends that there was such eviction at the time of the delivery of possession, or alternatively when the defendant no. 2 in 1937 compelled him to take the lease (Exhibit G). It is, therefore, necessary to consider exactly what is necessary to constitute eviction by title paramount. It is settled law that no physical dispossession is necessary. If the true owner is armed with a legal process for eviction, which cannot be lawfully resisted even though the tenant is not put out of possession, the threat to put him out of possession amounts in law to eviction: Alaga Pillai v. Ramaswami Thewan. If in such circumstances the tenant openly and to the knowledge of his landlord attorns to the true owner the estoppel is gone. The attornment, however, must be under compulsion. The party evicting must have a good title, and the tenant must have quitted against his will: Jogendra Lal Sarkar v. Mahesh Chandra Sadhu. There is all the difference between mere voluntary attornment and attornment under compulsion. The distinction was well emphasised in Noorijan Sardar v. Bimola Sundari Gupta where it was found that the true owner far from exercising pressure to secure the attornment rather offered something in the nature of a bribe in the way of reduction of rent. In such circumstances it was held that the tenant could not plead eviction by title paramount. Nor will the mere institution of a suit against the landlord by the true owner be enough. It is true there is one case, Ram Chander Chatterji v. Pramatha Nath Chatterjee in which observations were made supporting such an inference. Those observations have, however, subsequently been dissented from: see Amrita Lal Ojha v. Uttam Lal Sarkar. In this case the necessity for the threat, or exercise of pressure by the true owner, is once more emphasised. In Bhagavatula Krishna Rao v. Mungara Sanyasi it was pointed out, again dissenting from Ram Chandra Chatterji v. Parmatha Nath that an unexecuted decree for possession obtained by a third party does not per se operate as an eviction of the tenant by title paramount, liberating him from the estoppel against pleading jus tertia. The respondent has relied upon Jagdish Chandra Deo Dhabal Deb v. Biseswar Lal Agarwalla. But that is a case easily distinguishable. The tenants had not been inducted by the unsuccessful landlord, but by the successful landlord, and they attorned to the very person who originally inducted them upon the land.

The defendant no. 1 also seeks to escape the estoppel in a very ingenious manner by saying that, though he may be personally estopped, he is not estopped as representative of the defendant no. 2. If there is an estoppel, however, the fact that the holder of the paramount title has also been impleaded can make no difference: see Mohes Chunder Biswas v. Gooroopersad Bose. The short, answer is that if he speaks not as plaintiff's tenant but as representative of defendant no. 2, all he can secure thereby is dismissal of the suit against defendant no. 2. It must be so dismissed, but that will not help defendant no. 1.

Now let us consider the defendant no. 1's claim to eviction by title paramount in the light of the analysis of the law which I have just made. Was there such eviction in 1928 at the time of delivery of possession? In my judgment there certainly was not. In the first place, there was, in my judgment, no eviction. As against the tenant there was no delivery of possession, since only symbolical delivery of possession was made. The possession of the tenant was allowed to continue. He did not attorn to the Raja, nor was he apparently asked to do so. On the contrary, he not only failed to put his landlord upon notice of any such alleged attornment, but he conducted himself in such a way as to assure his landlord that he had not attorned, for he went on paying rent to the plaintiff for the next nine years. He would have us believe that his tenancy under the plaintiff then terminated, and he continued to pay rent only out of fear. That story cannot be accepted for one moment. The plaintiff was no one compared with the Raja, and as against the wishes of the Raja could not have been in a position to exercise any pressure. On the other hand, it seems clear that the Raja acquiesced in the payment of rent to the plaintiff. Not only is there nothing to show that he demanded any rent from the defendant no. 1, but admittedly he continued to pay him house allowance, and for some time at Rs. 30 a month, the very sum payable to the plaintiff. The defendant no. 1 says he went to the Raja and obtained permission to stay on in the house as his tenant. At that time, however, the Receiver was in possession of the Raj, and if he had taken such permission it would have been from the Receiver. There is no such allegation. I may mention here that I have, not the slightest doubt regarding the correctness of the finding of the learned Sub-ordinate Judge that the house was built by the plaintiff out of his own funds. The evidence on that point is entirely one-sided. The Raja, moreover, seems to have adopted all along the position that the house at least was the property of the plaintiff. It is to be noticed that in the original suit there was he specific claim with regard to the house, and when by Exhibit G he gave a lease to the defendant no. 1 no rent was fixed for the house, but only for the land. I am satisfied that in 1928 the defendant no. 1 neither attorned to the Raja, nor did the Raja ask him to.

Now, was there eviction by title paramount when Exhibit G was executed in December, 1937? Here there was certainly open attornment, but it was entirely voluntary. In my judgment, it was not an attornment under compulsion. It was more of the nature contemplated in Noorijan Sardar v. Bimola Sundari Gupta, where the tenant is offered a bribe, since whereas he had formerly been paying rent at Rs. 30 a month as a monthly tenant, the new lease was in perpetuity upon a mere nominal rental of Rs. 51 per annum. I think the defendant no. 1 as his doctor must have caught the Raja in a weak moment. He wanted to extend the house, and spend money upon it, and just after this lease admittedly he spent about Rs. 2,000 in building additional rooms. It seems clear enough that before he risked sinking money in the property he tried to make his position safe with the Raja, but as is clear from the rulings I have cited such voluntary attornment cannot constitute eviction by title paramount. To use the words of the Privy Council in Krishna Prasad Lal Singh Deo v. Baraboni Coal Concern, Limited “To take title from two rival sets of claimants may have been a good business step but it involved keeping faith with both”.

The defendant no. 1 has tried to make out that he took the lease in 1937 under threat of a suit for ejectment. There is no evidence worth the name to support that contention, and it is difficult to believe that the Raja after nine years would suddenly make up his mind to eject the defendant, especially in view of the fact that what he did do just afterwards was to give a lease in perpetuity upon an insignificant rental. There is nothing whatever to support the defendant's case upon this point except his own statement and certain recitals in the lease (Exhibit G). His own statement is of little value. It is conceded that he was not above making deliberately incorrect statements. For example, he denied that he had paid off a mortgage upon the holding, which had been executed by the plaintiff. It is said he denied this under bad advice, but the fact remains that this circumstance prevents us from placing any reliance upon his bare statement. As to the recitals in Exhibit G, they are irrelevant. As statements of the Raja, they are pure hear-say. As admissions of defendant no. 1, they are in his own favour. It is said that a lawyer was consulted, and papers were sent. There is not a scrap of evidence, oral or documentary, to support it. Apart from this question of fact, there is a legal difficulty about attornment in 1937. There could be no eviction by title paramount at that time because the Raja had no immediate right to possession, execution of the decree having become time-barred.

Accordingly, I hold that there has been no eviction by title paramount, and the defendant no. 1 is estopped from denying the plaintiff's title.

Lastly, the defendant no. 1 has taken a technical objection based upon the provisions of section 111 of the Transfer of Property Act. Order VI, rule 6 and Order VI, rule 11 of the Code of Civil Procedure. Section 111 lays down, inter alia, that a lease of immoveable property determines in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, and the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. Order VI, rule 6 says: “Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.” Order VI, rule 11 says: “Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, are material.”

The argument put forward by Mr. R.S Chatterji for the defendant no. 1 is that notice in writing has been neither proved nor even pleaded in the present case, and, therefore, the suit for ejectment cannot succeed. This point has been raised for the first time in this Court, and I gravely doubt whether an objection of this kind can be taken at this stage. In Hanmantram Surajmal Marwadi v. Shankarlal Abaji Marwadi it has been laid down that in a suit for possession and rent against the defendant as tenant the latter cannot for the first time in appeal be allowed to raise objection to sufficiency of notice to quit after having failed in the first Court on his plea of title.

There is, however, another good answer. Prior to Act XX of 1929 the words “gives notice in writing to the lessee” were not in section 111(g). By the Act of 1929 those words were substituted for the words “does some act showing”. This amendment was made by section 57 of Act XX of 1929. Section 63 of that Act contained an express provision that certain of the sections including section 57 should not operate retrospectively. The lease in the present case was long before 1929. Therefore, the incidents of the tenancy cannot be governed by the amended section 111. In the case of such a lease all, therefore, that is necessary to constitute forfeiture is the disclaimer by the tenant and some act by the lessor indicating his intention to determine the lease. The plaint in the present case says nothing about notice, but it does contain a clear implication that the plaintiff had indicated his intention to determine the lease. Paragraph 15 says: “That thereupon while the plaintiff was about to file a suit against the defendant no. 1, he (the defendant no. 1) with the consent and approval of the defendant no. 2 approached the plaintiff for an amicable settlement, but the negotiations ultimately fell through.”

Moreover, Order VI, rule 6 must be read along with Order VIII, rule 2. It is for the defendant to raise by his pleading all matters which show the suit not to be maintainable. Order VI, rule 6 merely says: Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading. Subject to that, all conditions precedent are to be taken as implied in the pleading. The plaintiff could not in the first instance, anticipate any contest on this point. Therefore, it was not for him to plead the condition precedent in the first instance. It was for the defendant to raise the point if he wished to contest it, and this he did not do. Hence no issue upon the point was framed, or decided. A general averment of the performance of all conditions precedent is implied in every pleading, and, therefore, it need not be alleged: Gates v. Jacobs. This has been followed by a Judge of this Court, and, in my opinion, rightly followed, in Murli Manohar v. Raja Nand Singh.

As for Order VI, rule 11, that is not a rule laying down that notice must be pleaded. It merely prescribes the form which the pleading should take in such cases as it is material to allege notice. It governs the statement in the pleadings of anything which is a part of the cause of action, as notice may sometimes be. Strictly speaking, however, a condition precedent merely as such does not form part of the cause of action. In my judgment this technical objection is without merit, and cannot avail the defendant.

Upon the view which I take of this case, the question whether the appellant is entitled to compensation for the value of the house, or in the alternative to remove his materials, does not arise. I shall, however, briefly express my opinion. Section 51 of the Transfer of Property Act has no application since it must be held that the plaintiff erected the house not as a transferee but as a trespasser. Moreover, I think if the appellant wished, to claim compensation, he should have done so in the suit of 1926. I do not think the plaintiff as a trespasser could claim compensation for improvements upon the land. A trespasser makes improvements at his own risk. Nevertheless, there can be no doubt upon the evidence that the plaintiff in building the house acted bona fide upon a claim of title, and the Raja stood by and allowed him to construct the house, which was certainly done to his knowledge. In such circumstances even a trespasser would, in my judgment, upon ejectment be entitled to remove the materials of the house which he has erected; see Barkat Ali v. Abdul Rahman, Kalyan Das v. Jan Bibi and Kidar Nath v. Mathu Mal.

Upon the findings at which I have arrived in this case the appeal must fail as against the defendant no. 2, the plaintiff having established no title. Against this defendant, who, as I have said, has not appeared, I would dismiss the appeal but without costs. As against defendant no. 1 the appellant is entitled to a decree for ejectment. It is conceded, however, on his behalf that he is liable to compensate the defendant no. 1 for the improvements made by him, and it is not denied that the defendant no. 1 expended Rs. 2,000 on this account. I would accordingly allow the appeal and decree the suit against this defendant, subject to the condition that before ejecting him the plaintiff must pay him compensation in the sum of Rs. 2,000. As against this defendant I would allow costs, throughout calculated upon the suit valuation reduced by Rs. 2,000.

Sinha, J.:— I agree.

K.D

Appeal partly allowed.