MAMMOO Vs. KUNHIRAMAN

JUDGEMENT

(1.) THE interesting question that arises for consideration in this Second Appeal is whether a tenant who has not been put into possession at the commencement of the tenancy by the landlord, but was already in possession on that day is bound by the rule of estoppel contained in S. 116 of the Indian Evidence Act. I am stating in this Second Appeal only such of those facts as are necessary for the decision of this appeal and these facts lie in a very narrow compass. THE plaint schedule property belonged in jenmom to kuttiprom Kovilakom. One Chandu Nambiar had a tharaka right under the Kovilakom and one Chirutha under whom first defendant claims as a suecessor-in interest was in possession of the property under Chandu Nambiar. THE original jenmi, the kovilakam, executed a Melcharthu in favour of one Kalleri Moosa who, on the strength of the Mabharthu, instituted O. S. 547 of 1919 of the Badagara munsiff's Court for eviction, impleading both Chirutha and the tarwad of Chandu nambiar, the latter being the intermediary. He obtained a decree, in execution of which he filed an execution petition. To get delivery he had to deposit value of improvements. But he did not deposit the value of improvements and the execution petition was dismissed. THEreafter he entered into an arrangement directly with Chirutha the lessee defendant, as a result of which Chirutha executed a lease deed (marupat), Ext. Al dated 18-7-1920, in favour of Moosa. Nothing happened thereafter for a number of years. Moosa's rights devolved on the plaintiff and thereupon the plaintiff issued a registered notice to chirutha terminating the lease. But then Chirutha did not accept the stand that she was holding tinder Ext. Al. In the suit eviction is sought for on the basis that defendants 1 to 3 who were descendants of Chirutha were holding under ext. A1 and defendants 4 to 9 claim under defendants 1 to 5. Recovery of possession with arrears of rent is sought for. THE rights of the intermediary chandu Nambiar have been taken assignment of by the 12th defendant and he sets up a claim adverse to that of the plaintiff. Plaintiff has a case that amounts due to the defendants under the decree in O. S. 574 of 1919 by way of value of improvements were paid and their claims were satisfied, so much so, the intermediary right of Chandu Nambiar does not subsist and therefore also there is no bar to Ext. Al being acted upon. In the alternative it is pleaded that the lessee Chirutha having entered into a lease arrangement with Moosa under ext. Al she is bound by the terms of the lease and she would be estopped from denying the title of the plaintiff in a suit for eviction.

(2.) THE trial court dismissed the suit and the appellate court confirmed this. Both courts found that there was no scope for estoppel and this is what is challenged before me in the Second Appeal.

(3.) IT is true, that Moosa obtained a decree for eviction against Chirutha and the representatives of Chandu Nambiar. But eviction through court was not obtained and it could not have been obtained unless the amounts directed to be deposited towards value of improvements were either paid or deposited. There is no evidence that they have either been so paid or deposited. The question is whether, under these circumstances, a plea of eviction by title paramount can be taken so as to justify the execution of a new lease by the tenant.