ALAGA PILLAI Vs. RAMASWAMI THEVAN

JUDGEMENT

(1.) This appeal is against the judgment of bur learned brother, Wallace, J., allowing Second Appeal No. 834 of 1921. The only point in this appeal is whether Section 116 of the Indian Evidence Act is a bar to the plaintiff's suit. It is found that the defendants were let into possession of the plaint property 40 years before the suit by the plaintiff's paternal grandfather. The plaintiff brought the suit for ejecting the defendants from the possession of the plaint property. The District Munsif of Shiyali dismissed the suit as being barred by limitation.

(2.) On appeal the Additional Subordinate Judge of Tanjore at Mayavaram set aside the decree of the District Munsif and gave a decree to the plaintiff for possession of the property and directed him to pay Rs. 400 as compensation being the value of the house on the suit property. Wallace, J. set aside the decree of the Subordinate Judge and restored that of the District Munsif. The plaintiff has preferred this appeal.

(3.) Mr. Muthiah Mudaliar for the appellant contends that the defendants were not entitled to set up the title of the Government in answer to the plaintiff's suit. His argument is that the plaint land is a portion of Survey No. 498 and that he is the owner of the whole survey number though he paid tax only for the trees standing thereon, and the defendants having been let into possession by the plaintiff's predecessor-in-title are bound to deliver possession to the plaintiff. Under Section 116 of the Indian Evidence Act no tenant of immoveable 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 immoveable property. No tenant can set up a just tertii in a third person in answer to a suit by the landlora. But it is well settled that where the true owner evicts the tenant. the tenant could attorn to the true owner and set up the title of the true owner in answer to a suit for ejectment by the landlord who let him into possession. So long as his tenancy is subsisting the tenant is not entitled to set up the title of a third person. But if he is evicted from the possession of the land by the true owner then the tenancy ceases and after the eviction he could attorn to the true owner. The eviction need not be by actual dispossession of the tenant If the true owner is armed with a legal process for eviction which cannot be lawfully resisted even though the tenant is not put out of possession the threat to put him out of possession amounts in law to eviction. In this case the Government served upon the defendants notice Ex. III(b) under Section 7 of the Madras Land Encroachment Act (III of 1905). The Land Encroachment Act provides means by which persons in unauthorised occupation of Government land may be evicted. Under Section 7 before taking proceedings under Section 5 or Section 6 the Collector or Tahsildar or Deputy Tahsildar, as the case may be, shall cause to be served on the person reputed to be in unauthorised occupation of land being the property of Government a notre specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under Section 5 or under Section 6. Under Section 3 any person unauthorisedly occupying any land which is the property of the Government shall be liable to pay the full assessment imposed on the land. Under Section 5 a person in unauthorised occupation of land belonging to Government may be made liable to pay what is known as penal assessment. Under Section 6 any person unauthorisedly occupying any land for which he is liable to pay assessment under Section 3 may be summarily evicted by the Collector. Ex. III(b) is a notice issued under Section 7 and on the failure of the defendants to comply with the terms of the notice eviction would have followed as a matter of course. The defendants paid the assessment and a year before the suit was brought they accepted patta from the Government. Ex. III (b), the notice under Section 7 of the Madras Land Encroachment Act (III of 1905) amounts in law to eviction. If the plaintiff had title to the land he should have brought a suit against the Government for a declaration that the land is his and for the recovery of the penal assessment levied from him as well as from his tenants. He did not take any action against the Government. The explanation given by Mr. Muthiah Mudaliar is that the plaintiff was a minor at the time and he attained majority only within three years before the suit. But that would not save his right against the Government.