M VENKATA RAO Vs. BSUBBA RAO

JUDGEMENT

(1.) The Sri Parthasarathi Temple, Triplicate, leased the suit land to the first defendant, the first defendant sub-leased it to the second defendant, and the second defendant to the plaintiff. At the termination of the period of tenancy, the second defendant brought proceedings under Chapter VII of the Presidency Small Cause Courts Act to recover possession from the plaintiff. An order was passed under Section 43 in the second defendant's favour, and the plaintiff thereupon filed this suit under Section 47. He raised very many pleas and they are set out in the five issues. Inter alia, the plaintiff alleged that the second defendant agreed to allow the plaintiff to remain in possession for three years which, he said, was the period of the lease of the first defendant from the temple and the second defendant from the first defendant. After the plaint was filed the temple obtained an order under Section 43 of the Presidency Small Cause Courts Act against the first defendant. The plaintiff thereupon obtained permission to amend his plaint and add another ground that the period of tenancy having determined, the second defendant had no right to possession. The plaintiff's suit was dismissed and hence this appeal.

(2.) The only point argued in appeal was whether the second defendant could retain possession in view of the fact that the period of her own tenancy had terminated. As already pointed out, one of the plaintiff's contentions was that the period of tenancy was for three years and that he too was entitled to remain in possession for three years. His present contention is therefore inconsistent with one of his main contentions in the amended plaint. It is however said that the matter has now been determined by an order under Section 43 in proceedings between the temple and the first defendant and that that finding is final, and binding until the first defendant has had it set aside in a suit in the City Civil Court under Section 47. Such a suit was filed by the first defendant and that suit is still pending.

(3.) The ordinary rule is admitted to be that a tenant must deliver possession before he can dispute his landlord's title arid that that estoppel ordinarily continues even beyond the term of the tenancy unless the tenant first delivers possession. A number of cases are quoted by Mulla in his Transfer of Property Act as holding that the estoppel continues after termination of the tenancy unless possession is given up. Halsbury, in Vol. XIII at page 506, says: But if the tenant came into possession under a lessor, the better opinion would seem to be that he must surrender possession before he disputes the lessor's title; it has, however, been held that it is not necessary that fie should actually go out of possession ... and that it is sufficient that he should come to a new arrangement with the person who really has the title to hold under him.