Gappu Umed Deswali v. Ramsingh Devisingh — 1959 DIGILAW 97 (MP)

JUDGMENT V.R. Nevaskar, J. This second appeal arises out of a suit for ejectment and arrears of rent. The parties to this dispute however belonged to the family with common ancestor Umed. Umed had three sons Devisingh, Govind and Gappu. Devisingh had two sons Ramsingh and Fakirchand. Fakirchand is dead leaving behind three sons Hardeo, Nensingh and Ishwar. Ramsingh and these three sons of Fakirchand are the Respondents. These four persons of the branch of Devisingh filed the present suit for recovery of rent in respect of the field known as 'Odhiwala' in the village Manpur alleging that there had been partition between the three branches of Devisingh, Govind and Gappu about 25 or 30 years back and the ancestral property had been divided and each branch was put in separate possession of the property falling to its share. The land known as 'Odhiwala' had been divided into two partsone falling to the share of Govind and the other falling to the share of Devisingh. Lands at Undawa and Kakriya had fallen to the share of the Defendant. The portion of the land known as Odhiwala which had fallen to Devisingh's share measured 1.6 acres and bore Khasra No. 395/1-1. About six years prior to the date of the suit this portion of the land known as 'Odhiwala' bearing Khasra No. 395/1-1 was given by the Plaintiffs to Defendant Gappu on rent at the rate of Rs.35 per annum. The Defendant had agreed to pay the rent Rs.35 P. A. every year and further had agreed to pay the revenue in respect of the same. The Defendant however did not pay any rent from the beginning of the creation of the tenancy in spite of notice to that effect. The Plaintiffs were entitled to rent in respect of six years but the claim in suit was confined to last three years as the rest of the claim had become barred by time. The Defendant contended that the field known as Odhiwala at Manpur had not fallen to the share of Devisingh and Govind but had fallen to the share of the Defendant and Govind. The Defendant had actually obtained a Patta jointly recorded in the name of himself and Govind. For some days subsequent to the partition, according to him, the Defendant was in possession of his portion of the Odhiwala field but he was forcibly dispossessed by the Plaintiffs. The Defendant had actually obtained a Patta jointly recorded in the name of himself and Govind. For some days subsequent to the partition, according to him, the Defendant was in possession of his portion of the Odhiwala field but he was forcibly dispossessed by the Plaintiffs. He denied that the land had been taken on rent by him from the Plaintiffs about six years prior to the filing of the suit or that he had agreed to pay Rs.35 P.A. as rent and to bear the revenue assessment. On these respective contentions of the parties the trial Court at the initial stage framed 4 issues which were as follows: 1. Whether in the family partition the Odhiwala field had been divided between Devisingh and Govind as alleged by the Plaintiff ? Whether in the aforesaid partition the suit land was divided between Govind and the Defendant and whether the names of both of them had been entered over that land in the last settlement ? Whether the land in suit had fallen to the share of Devisingh ? Whether Plaintiff Fakirchand had given the land in suit to Defendant, on lease on his agreeing to pay Rs.35 P.A. as rent ? After these issues were framed an application was submitted on behalf of the Plaintiff to delete all the issues except the 4th one. This application succeeded and the Court by its order dated 24-9-1951 directed the deletion of the first three issues. The reasoning given by the learned Judge for deletion of these issues was that in case the Plaintiffs succeed in establishing the tenancy as alleged the Defendant automatically becomes liable to pay the rent. The parties therefore went to trial with that one issue namely, issue No. 4, The Court considered the evidence which the parties led on that point and held in Plaintiffs' favour. As a result the trial Court decreed the Plaintiffs' suit. In the appeal preferred against that decision it was contended that the deletion of the first three issues which had a material bearing on issue No. 4 has resulted in miscarriage of justice. It was also contended that the finding arrived at by the trial Court on issue No. 4 was erroneous. In the appeal preferred against that decision it was contended that the deletion of the first three issues which had a material bearing on issue No. 4 has resulted in miscarriage of justice. It was also contended that the finding arrived at by the trial Court on issue No. 4 was erroneous. The appellate Court held that it was totally unnecessary to consider which land fell to the share of which of the parties inasmuch as the Plaintiffs had claimed Rs.105 under an agreement to pay rent. The deletion of the three issues, according to it, therefore involved no prejudice to any of the parties. On the question of existence of the alleged agreement it agreed with the conclusions of the trial Court. The appeal was consequently dismissed, This is a second appeal against that decision. It is contended by Mr. Avadhoot for the Appellant that both the Courts below have committed an error of law in holding that issues Nos. 1 to 3 were irrelevant and unnecessary for the purpose of deciding the present suit. The principal question, according to the Learned Counsel, which fell to be considered was whether the Defendant had taken the land in question from the Plaintiff Fakirchand on lease on annual rent of Rs.35. The Defendant sought to meet this case by contending that the land initially belonged to the family but that in the family partition it fell to the share of the Defendant and Govind and that since then he had been in possession of the land in his own right. The Plaintiffs in the plaint itself had suggested that in the family partition the land fell to the share of their ancestor Devisingh and Govind. The truth or falsehood of the principal case as regards the lease of the land to the Defendant therefore depended much upon whether what the Plaintiffs Hated as regards the family partition was true or what the Defendant alleged was true. If the Plaintiffs fail to establish the fact that in the family partition the land fell to the share of Devisingh and Govind and if the Defendant succeeds in establishing that in the partition the land fell to his share and that of Govind then it would be highly improbable that with the land falling to his own share in the partition the Defendant would take the same from the Plaintiffs on lease. The deletion of issues Nos. 1 to 3 therefore, according to the Learned Counsel, involves an error of law. The Courts below could not have proceeded to apply the principle of estoppel under Section 116 of the Evidence Act to the present case inasmuch as their assumption that the Defendant was a tenant of the Plaintiffs was vitiated as a result of the legal error committed by them in excluding material pertaining to issues Nos. 1 to 3. The Learned Counsel in this connection relied upon the decisions reported in Sk. Rashid v. Hussain Bakash 1943 NLJ 318 : AIR 1943 Nag. 265 and Shiba Prasad Singh v. Nilabji Bali AIR 1947 Pat. 45. In my opinion the contentions raised by the Learned Counsel are well founded and ought to be accepted. The only question which the trial Court considered material for the purpose of deciding the case was whether Plaintiff Fakirchand had given the land in suit to the Defendant on annual rent of Rs.35. This is no doubt the principal question but in this case it has to be seen that the lease put forward is not evidenced by any document in writing. Admittedly from the inception of the alleged lease there had been no payment of rent. The Plaintiffs confined their claim for rent only for three years and relinquished their claim for the earlier three years as it was barred by time. Plaintiffs themselves felt it necessary to put forward reasonable basis for the suggestion that the Defendant who is the brother of their ancestor Devisingh is in possession of the land as a tenant. They alleged that the field known as Odhiwala fell to the share of Devisingh and the third brother Govind and that as between Devisingh and Govind the land was divided half and half, the portion which is the subject-matter of the suit, falling to the share of Devisingh. The Defendant could depend in support of his defence upon the circumstance that in the family partition the land in suit had been allotted to his share and that the whole of the Odhiwala field fell to the share of himself and Govind and not what is alleged by the Plaintiffs. The Defendant could depend in support of his defence upon the circumstance that in the family partition the land in suit had been allotted to his share and that the whole of the Odhiwala field fell to the share of himself and Govind and not what is alleged by the Plaintiffs. If the Defendant succeeds in establishing this part of the claim and the Plaintiffs fail in what they state as to the partition that will have a material bearing on the question as to whether the alleged tenancy should be held to have been established or not. The reason put forward by the lower appellate Court justifying the action of the trial Court in deleting the issues Nos. 1 to 3 is that the Defendant as a tenant is estopped from denying his landlord's title. This is no doubt so provided that the Defendant is a tenant. Section 116 of the Evidence Act upon which the lower appellate Court relies is 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 by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given. It is clear from the wording of the section that it would apply to the cases where the tenancy is either admitted or is not in controversy. This does not mean that a Defendant who is alleged to be a tenant could not deny that he is in fact a tenant. This view seems to be well supported by the wording of Section 116 of the Evidence Act as well as by the decision reported in Shiba Prasad Singh v. Nilbaji Bali AIR 1947 Pat. 45, where Ray J. observes: It is true that once a valid and subsisting lease is established between the parties, the lessee may be bound by the principle of estoppel and may be debarred from disputing the question of title of the lessor, but that does not prevent the alleged lessee to deny his own status as a lessee. 45, where Ray J. observes: It is true that once a valid and subsisting lease is established between the parties, the lessee may be bound by the principle of estoppel and may be debarred from disputing the question of title of the lessor, but that does not prevent the alleged lessee to deny his own status as a lessee. He is bound by the rule of estoppel only when he acts as a lessee and in that capacity tries to refute the title of his own lessor. That well established principle of estoppel as between lessor and lessee as enacted in Section 116, Evidence Act, does not prevent any Defendant to make out the case that he has never been a lessee and the lease purporting to make him a lessee was never a valid document, and, in that behalf to plead such circumstances as may invalidate the lease or otherwise make it null and void. In Sk. Rashid v. Hussain Bakash 1943 NLJ 318 : AIR 1943 Nag. 265, Gruer J. relied upon the observations of Niyogi J., in Lalchand v. Ramsingh 1942 NLJ 136, to the effect that Section 116 of the Evidence Act no doubt estops a tenant from disputing the title of the landlord at the date of the lease but that it presupposes that the person affected by the estoppel is a tenant. The question for consideration in the aforesaid Nagpur case was whether the Defendant who was alleged to be the vendor of the pro-perty was a tenant or not. It was in this connection observed that the evidence about the nature of the sale deed was relevant on the question of existence or non-existence of the oral lease under Section 11(2) of the Evidence Act. It was pointed out that if the sale was proved to be genuine that fact coupled with the continued possession of the vendor would make the oral lease more probable but that if the sale deed was bogus it might have been possible to argue that there was in fact no oral lease at all or that the oral lease was also bogus. The learned Judge in that case held that the evidence as to sale was wrongly held by the Courts to be irrelevant. The learned Judge in that case held that the evidence as to sale was wrongly held by the Courts to be irrelevant. It was pointed out that this error on the part of the trial Court in ignoring that piece of evidence might have affected the decision on the question of fact which had to be arrived at by taking into account all the circumstances which the parties wanted to put forward having a bearing on the material question. In my opinion the decision in this case is applicable to the facts in the present case. The trial Court had acted wrongly in directing deletion of issues Nos. 1 to 3 as being irrelevant and the lower appellate Court has similarly erred in upholding that action. The lower appellate Court further erred in law in proceeding to apply the principle of estoppel when material pieces of evidence having a bearing on the question of Defendant's tenancy had been thus wrongly excluded. The decision of the lower appellate Court therefore involved substantial error in the procedure which might have possibly produced an error in the decision of the case upon the merits. The appeal, therefore, ought to be accepted and the decision of the lower Court and the decree passed by it ought to be Bet aside and the case remanded to the trial Court who shall restore issues Nos. 1 to 3 which had already been directed to be deleted and afford opportunities to the parties to lead evidence and thereafter to dispose of the case in accordance with the law and in light of the observations made above. The Appellant will be entitled to his costs from the Respondents of this Court as well as of the lower appellate Court. Costs of the trial Court will abide the final result.