KHALIL SUFI Vs. AZIZ BHAT

JUDGEMENT

(1.) THIS is a defendants second appeal directed against the decision of the District Judge at Srinagar who reversed the judgment) and decree of the Munsiff, Srinagar. The suit in this appeal was instituted by the respondent for arrear of rent for three years on foot of a lease deed dated 6th Magh 2004. The main defence in the suit was that the property leased did not belong to the landlord and that the lease deed came to be executed on account of coercion to which the appellant tenant was subjected by the respondent landlord and his friends. The suit was first decreed by the trial Court. On appeal, the District Judge remanded it for fresh disposal by the trial Court after recording a finding on. the issue of estoppel under S. 116 of the Evidence Act.

(2.) THE main ground on which the lower appellate Court has based its decision is that the appellant tenant is estopped by virtue of the provisions of S. 116 of the Evidence Act, from denying the title of the landlord respondent. It is common ground that the tenant was not let into possession of the land by the landlord. The concurrent finding of fact of the Courts below is that the appellant had already been in actual possession of the land when he executed the lease in favour of the respondent. Both sides have rightly accepted this finding of fact as binding on them. But they have grounded certain legal arguments on this finding. The learned counsel for the tenant has urged that the provisions of S. 116 of the Evidence Act will apply only to a case where -the landlord has let the tenant into possession of the land in pursuance of the lease and not to a case where the tenant was already in possession. The counsel for the landlord has, on the other hand, pointed out that the question whether the tenant was actually let into possession or not has no bearing on the applicability of S. 116. This section, so far as it is relevant to the present case, reads:

(3.) NO doubt, there is in English Case Law some authority for the view that a tenant is only estopped from denying his landlords title, if at the time when he took his lease he was not already in possession of the land. Some of the earlier decisions of the Indian Courts seem to have been influenced by the English Case Law, but the more recent decisions have clearly pointed out the distinction between the English Law and the Indian Law on the subject and have adhered to the provisions of S. 116 of the Evidence Act. The later trend of authority of the Indian Courts is reflected in the majority view in Venkata Chetty v. Aiyanna Gounden, ILR 40 Mad 561: (AIR 1917 Mad 789 (2) (FB). Seshagiri Aiyar J. with whom Phillips J. concurred, stated: