BADRUDDIN KHAN Vs. BHAGLOO KOERI

JUDGEMENT

(1.) The only point for consideration in this case is whether by reason of Section 116, Evidence Act, the defendant who is the respondent in this appeal was estopped from denying the plaintiff's title. The plaintiff claimed to be the assignee of the reversion of certain lands and the defendant as his tenant. There is no doubt that the defendant, after the reversion had been assigned to the plaintiff, executed a kabuliyat in favour of the plaintiff. The plaintiff in this action claimed rent for the period of the kubuliyat and also to eject the defendant. The defence set up was that the plaintiff had no title. The Court below has held that the defence was open to the defendant and therefore had dismissed the plaintiff's suit on the ground that one Gopal Lal was entitled to the land and not the plaintiff.

(2.) As I have said the question is whether the defendant is a person who is estopped by reason of Section 116, Evidence Act, which reads as follows: No tenant of immovable property, or person claiming through such tenant, 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 immovable property, and no person who came upon any immovable property, etc. I am concerned only with the first part of the section, and the substantial question, is, what is meant by the words "at the beginning of the tenancy." In India these words have been construed in various ways and decisions have been most numerous in the Madras High Court and by reason of a conflict of decisions in that Court the matter was referred to a Full Bench in the case of Venkata Chetty V/s. Aiyanna Gounden 1917 Mad 789.

(3.) The judgment was first delivered in the case by Coutts-Trotter J., and Seshagiri Ayyar, J., both holding that the doctrine of estoppel laid down in Section 116, Evidence Act, was not different from that of the English law. In substance the judgment of the learned Judges was to the effect that a person in the position of the defendant in this suit was estopped from denying the title of his landlord, although the landlord was an assignee of the reversion and although the landlord had not let the defendant into possession, unless the defendant could show either fraud or circumstances which would vitiate the contract and that he was not bound by the lease which he had executed.