SHANKAR NANA PATIL Vs. JAGANNATH MATHURALAL BHAT

JUDGEMENT

(1.) The plaintiff in this case sued to recover rent of Rs. 182-4-0 on an oral agreement by which the defendants attorned to the plaintiff. The Kabulayats passed by the defendants, Exhibits 16 and 17, are proved by the evidence of the plaintiff and the previous oral tenancy was also proved. The learned Subordinate Judge held that the defendants were estopped from disputing the plaintiff's initial right to let out the land during the continuance of the tenancy as the defendants admittedly came on the land through their deceased father.

(2.) The first point taken in this application is that the learned Subordinate Judge had no jurisdiction to entertain the suit as the Notification in the Bombay Government Gazette for 1911, Part, page 1694, did not give power to the Subordinate Judge by name to entertain suits for recovery of rent, under Clause (8) of the second schedule of the Provincial Small Cause Courts Act. In Akshay Kumar Shaha V/s. Hira Ram Dosad (1908) I.L.R. 35 Cal. 677, it was held that reading Clause (1) of Section 15 of the Provincial Small Cause Courts Act with Clause (8) of the second schedule of the Act, the expression "the Judge of the Court of Small Causes" in Clause (8) of the second schedule must be taken to apply either to a Court of Small Causes constituted under the Act or to a Court invested with the jurisdiction of a Court of Small Causes, and the Judge in Clause (8) means a Court invested with the jurisdiction of a Court of Small Causes. It is not necessary to invest the powers by reference to the name of the particular Judge. We think, therefore, that the notification is not ultra vires, and the Subordinate Judge had jurisdiction to decide the case.

(3.) The next point taken on behalf of the applicants is that the lower Court erred in holding that the defendants were estopped under Section 116 of the Indian Evidence Act from disputing the plaintiff's right to let out the land and reliance is placed on the decision of the Full Bench of the Madras High Court in Venkata chetty V/s. Aiyanna Gowndan (1916) I.L.R. 40 Mad. 561, f.b. and the decision of the Privy Council in Bilas Kunwar V/s. Desraj Ranjit Singh (1915) I.L.R. 37 All 557, s.c. 17 Bom. L.R. 1006, p.c. It was held by their Lordships of the Privy Council that (p. 587)- Section 116 of the Indian Evidence Act is perfectly clear on the point, and rest on the principle well established by many English cases, that a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as ho has not openly restored possession by surrender to his landlord.