D DEVALRAJU Vs. MAHAMED JAFFER SAHEB

JUDGEMENT

(1.) The Subordinate Judge has reversed the District Munsif s decree on two grounds: (1) that as a competent court has decided in Original Suit No. 139 of 1901 that the second plaintiff and not the first plaintiff (appellant) is the dharmakarta, the appellant cannot maintain a suit on the basis of a rent deed executed to him as dharmakarta; (2) that the defendant has discharged the claim in full.

(2.) The second contention is undoubtedly inadmissible. Not only was no plea of discharge set up by the first defendant, but it is clear that the Subordinate Judge s view that the payments, noted on the foot of the deed Exhibit A, operated as a full discharge of the rent to the end of the lease is based on a mistaken view of that document. It is distinctly stated in Exhibit A that the last payment is only for faslis 1309 and 1310.

(3.) The other point is more difficult of decision. On the whole I am inclined to think that it must be governed by Section 116 of the Evidence Act, which prevents a tenant during the continuance of his tenancy from denying his landlord s title at the commencement thereof. In this case there is nothing to indicate that the tenancy under Exhibit A has terminated. The first defendant has not attorned to the second plaintiff in any way nor has he been evicted. It is argued with some plausibility that the decree in Original Suit No. 139 of 1901 is tantamount to a determination of the tenancy; but after careful consideration I do not think this plea can be accepted in the peculiar circumstances of this case. The second plaintiff got a decree for possession and for mesne profits, but he has not executed the former portion and has entered into a compromise with the first plaintiff by which he accepted certain money payments in full satisfaction of his claim for mesne profits. Even apart then from the second plaintiff s being joined in the present suit and acquiescing (as he appears to have done) in the first plaintiff s claim there is no reason why the first defendant should not be held bound by the ordinary rule of estoppel or should be allowed to escape payment of the rent due by him in accordance with the terms of the lease.