M MUJIBAR RAHAMAN Vs. ISUB SURATI

JUDGEMENT

(1.) This is an appeal by the defendant against the judgment and decree of the Additional District Judge of Hooghly at Howrah. The facts are these : It has been found that the plaintiff let out the premises in suit to the defendant at a certain rate of rent. He afterwards served a notice terminating the tenancy and then sued to recover possession of the property in question and also rent for the period the defendant was in possession as tenant. The plea of the defendant shortly stated was denial of the plaintiff's right to the entire share of the property. He stated that a certain share belonged to the sisters of the plaintiff and the letting out of the property was not by the plaintiff alone. He denied service of notice and he also alleged that the plaintiff was not entitled to any rent as the defendant had spent a large sum of money for repairing the promises on the basis of a contract by which the owners had agreed that no rent should be demanded until the house was thoroughly repaired. The trial Court found that the plaintiff was the sole person who demised the premises to the defendant and inducted him on the land. He also found that proper notice to quit had been served on the defendant. With regard to the question of title to the property the trial Court held that the plaintiff was only a co-sharer, but the defendant was estopped from disputing the title of the plaintiff who had demised the premises to him. Upon that view that Court made a decree for ejectment. With regard to the question of arrears of rent which was put in issue 7 the Munsif held that there was no evidence in the suit that the arrears claimed were due and unpaid, and upon that ground he dismissed the claim for rent. There were two appeals before the lower appellate Court, one by the plaintiff for arrears of rent and the other by the defendant as against the decree for ejectment. The learned Additional District Judge who heard both the appeals affirmed the decree of the Munsif for ejectment on the ground that the defendant was estopped from disputing the title of the plaintiff, but he remanded the case on the question of arrears of rent to the Munsif in the appeal preferred by the plaintiff, that is 252 of 1924, for a fresh trial on the question regarding the claim for rent.

(2.) From this decree of the lower appellate Court the defendant appeals, and the principal question that is urged on his behalf is that the defendant is entitled to show that the title of the plaintiff has ceased to exist with regard to the share belonging to the sisters of the plaintiff which the defendant has purchased shortly before the suit was instituted. The Additional District Judge did not allow the plea to be raised on the ground of estoppel as well as on the ground that the decision of this question would involve enquiries of a more complicated nature than an enquiry in a simple suit for ejectment.

(3.) The question of fact that it was the plaintiff who put the defendant into possession of the house cannot be questioned. The sole question for decision in-this appeal, therefore, is whether the defendant is estopped from raising the plea that the plaintiff was not the sole owner of the property when he was let into possession by the plaintiff; and substantiating his plea that he had purchased the share from the sisters of the plaintiff and therefore, entitled to resist the plaintiff's claim for ejectment. Section 116, Evidence Act, lays down that no tenant of immovable property or parson 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.