HANUMANTHAIYA Vs. THAVAKAL SAN AND

JUDGEMENT

(1.) The appellant filed a suit for the recovery of "Wara" produce or its value for the agricultural year 1946-47. it is alleged that the defendants were cultivating the schedule laud for about five years prior to suit and failed to deliver the landlord's share of the produce due in January 1947. The defendants denied the lease during the suit year and pleaded that one Gangamma, in pursuance of a decree against the plaintiff and his brother, brought the schedule property to sale and purchased the same; she also took possession of the property through Court; they plead that they have delivered the produce to the vendee of Gangamma and the liability is thus discharged.

(2.) The original lease of the suit land by the plaintiff has been established. The lease appears to be oral continuing from year to year and the agricultural year begins on 1st April of every year and ends on 31st March of the subsequent year. The courts below have found on facts that Gangamma who obtained a maintenance decree against the plaintiff and his brother in O.S.No. 307 of 37-38 on the file of the Munsiff of Tumkur, purchased the properties belonging to the plaintiff's family the suit land being one of the items charged for maintenance. The purchaser also obtained delivery of possession of the property in Misc. Case No. 176 of 1945-46 on 28th March 1946. These findings are not challenged in this Curt. The trial Court held that the plaintiff is estopped from claiming the rent and dismissed the suit which finding was also confirmed by the first appellate Court. This second appeal is against the appellate decree.

(3.) Sri T. Madhava Rao contended that the tenants are estopped from denying the title of the landlord, during the continuance of the tenancy. According to Section 116, Evidence Act, no tenant of the immoveable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immoveable property. The rule embodied in the section, no doubt, precludes the tenant from denying title at the tie of the creation of the tenancy but admits of the qualification that subsequent to the creation of tenancy the tenant is not debarred from contending that the land-lords's title is subsequently lost or defeated.