Judgment :- 1. The interesting question that arises for consideration in this Second Appeal is whether a tenant who has not been put into possession at the commencement of the tenancy by the landlord, but was already in possession on that day is bound by the rule of estoppel contained in S.116 of the Indian Evidence Act. I am stating in this Second Appeal only such of those facts as are necessary for the decision of this appeal and these facts lie in a very narrow compass. The plaint schedule property belonged in jenmom to Kuttiprom Kovilakom. One Chandu Nambiar had a tharaka right under the Kovilakom and one Chirutha under whom first defendant claims as a suecessor-in interest was in possession of the property under Chandu Nambiar. The original jenmi, the Kovilakam, executed a Melcharthu in favour of one Kalleri Moosa who, on the strength of the Mabharthu, instituted O.S. 547 of 1919 of the Badagara Munsiff's Court for eviction, impleading both Chirutha and the tarwad of Chandu Nambiar, the latter being the intermediary. He obtained a decree, in execution of which he filed an execution petition. To get delivery he had to deposit value of improvements. But he did not deposit the value of improvements and the execution petition was dismissed. Thereafter he entered into an arrangement directly with Chirutha the lessee defendant, as a result of which Chirutha executed a lease deed (marupat), Ext. Al dated 18-7-1920, in favour of Moosa. Nothing happened thereafter for a number of years. Moosa's rights devolved on the plaintiff and thereupon the plaintiff issued a registered notice to Chirutha terminating the lease. But then Chirutha did not accept the stand that she was holding tinder Ext. Al. In the suit eviction is sought for on the basis that defendants 1 to 3 who were descendants of Chirutha were holding under Ext.A1 and defendants 4 to 9 claim under defendants 1 to 5. Recovery of possession with arrears of rent is sought for. The rights of the intermediary Chandu Nambiar have been taken assignment of by the 12th defendant and he sets up a claim adverse to that of the plaintiff. Recovery of possession with arrears of rent is sought for. The rights of the intermediary Chandu Nambiar have been taken assignment of by the 12th defendant and he sets up a claim adverse to that of the plaintiff. Plaintiff has a case that amounts due to the defendants under the decree in O. S.574 of 1919 by way of value of improvements were paid and their claims were satisfied, so much so, the intermediary right of Chandu Nambiar does not subsist and therefore also there is no bar to Ext. Al being acted upon. In the alternative it is pleaded that the lessee Chirutha having entered into a lease arrangement with Moosa under Ext. Al she is bound by the terms of the lease and she would be estopped from denying the title of the plaintiff in a suit for eviction. 2. The trial court dismissed the suit and the appellate court confirmed this. Both courts found that there was no scope for estoppel and this is what is challenged before me in the Second Appeal. 3. Though it was argued before me by the learned counsel for the appellant that the decree in O.S.574 of 1919 was satisfied by payment of the value of improvements as directed in the decree to the defendants therein, namely, the representatives of Chirutha and the representatives of Chandu Nambiar, there is no evidence to show that the claim of Chandu Nambiar to value of improvements as found in the decree has been satisfied. Therefore that contention has to be found against. 4. According to the learned counsel for the appellant Ext. Al was executed under circumstances in which Chirutha, in possession as a lessee from Chandu Nambiar, would have been acting only prudently in entering into a fresh lease with Moosa. A decree for eviction had been obtained and eviction was imminent and therefore, according to Counsel, the execution of a fresh lease Ext. Al was under threat of eviction by title paramount. That, according to him, would be sufficient to terminate the relationship between Chandu Nambiar and Chirutha and validly create a new tenancy between Chirutha and Moosa. If this contention is not accepted, it is urged, then the plea of estoppel my be gone into. 5. It is true, that Moosa obtained a decree for eviction against Chirutha and the representatives of Chandu Nambiar. If this contention is not accepted, it is urged, then the plea of estoppel my be gone into. 5. It is true, that Moosa obtained a decree for eviction against Chirutha and the representatives of Chandu Nambiar. But eviction through court was not obtained and it could not have been obtained unless the amounts directed to be deposited towards value of improvements were either paid or deposited. There is no evidence that they have either been so paid or deposited. The question is whether, under these circumstances, a plea of eviction by title paramount can be taken so as to justify the execution of a new lease by the tenant. 6. Estoppel between the landlord and tenant continues so long as the tenant is in possession under the earlier tenancy and the leasehold has not been surrendered to the landlord. If the tenant enters into an arrangement with a third person claiming paramount title, that will not terminate the earlier tenancy nor will it relieve the tenant from the operation of the rule of estoppel under S.116 of the Evidence Act. Estoppel would disappear when the landlord's title is extinguished by events subsequent to the commencement of the tenancy, one of which may be by eviction by title paramount. This does not require a physical dispossession of the tenant. No doubt such physical dispossession by the holder of a title paramount would be a sufficient answer to the plea of estoppel by the landlord as against a tenant. But even if the tenant is not evicted from the property he can contend that the rule of estoppel as between the landlord and himself is no longer enforceable if he has entered into a new arrangement of tenancy with the holder of the paramount title under a threat of eviction by title paramount. But this must necessarily be subject to the existence of certain conditions. The holder of the title paramount must be armed with a legal process for eviction which enables him to seek imminent dispossession of the tenant. The process which such person is armed with must be such as could not be lawfully resisted. The tenant must have openly and to the knowledge of the landlord entered into a new arrangement with the holder of the title paramount. The process which such person is armed with must be such as could not be lawfully resisted. The tenant must have openly and to the knowledge of the landlord entered into a new arrangement with the holder of the title paramount. If these conditions are satisfied, even if there be no physical dispossession of the tenant by eviction, the estoppel as against his landlord would come to an end. The test is whether the tenant was compelled to quit against his will or would be compelled to quit against his will. Since this proposition is not very seriously opposed by the counsel for both sides, I need not refer to the decisions bearing on this question. But I may make reference to the decision of the Patna High Court reported in Krishna Prasad v. Adyanath Ghatak (AIR. 1944 Patna 77) wherein the learned judges have discussed the question elaborately and formulated the principles applicable to a case of this nature. 7. Certainly in this case it cannot be said that there was a threat of eviction by title paramount. Moosa, the holder of the decree in O. S.574 of 1919, could have certainly executed the decree. But he could have done so only after depositing the amounts, which he was bound to under the terms of the decree. Therefore there was no imminent threat which was not capable of being resisted. It follows that it is not open to either of the parties to Ext. Al to say that the original landlord Chandu Nambiar was evicted by title paramount at or about the time of execution of Ext A. 8. The other question and the one on which considerable reliance is placed by the appellant is one of estoppel arising under S.116 of the Evidence Act. It is the plaintiff's case that irrespective of the question whether the earlier lease terminated or not, the lessee, having entered into an arrangement of tenancy, is bound by Ext. Al though that will not enable the plaintiff to get a decree against the true owner, if there be any. What is prayed for by the plaintiff is a decree based on the rule of estoppel and not on title and plaintiff contends that, if necessary, the question of competing title as between the plaintiff on the one hand and the 12th defendant on the other, may be left open. What is prayed for by the plaintiff is a decree based on the rule of estoppel and not on title and plaintiff contends that, if necessary, the question of competing title as between the plaintiff on the one hand and the 12th defendant on the other, may be left open. It is further agreed that in view of the provisions of Kerala Land Reforms Act 1 of 1964, as to claim for arrears of rent, what need be considered is only whether a decree for arrears could be granted to the plaintiff based on Ext. Al subject to the provisions of Act 1 of 1964. 9. On the date of Ext. Al the earlier lease under which Chirutha held the property had not terminated. Though a decree for eviction of Chirutha and her lessor had been obtained that was not executed. All the same whether Chirutha would be bound by Ext. Al and is answerable for the obligations arising under it is the question which calls for an answer here. 10. The grounds for avoidance of a contract of lease are the same as those of any other contract, viz. such as fraud, undue influence and coercion. If the tenant is not able to avoid such a lease on such grounds then it must necessarily follow that the lease is operative to produce the consequences which would normally arise from the terms thereof. The fact that there is defect in the title of the landlord would not be a sufficient reason for a tenant to refuse performance under the lease. S.116 of the Evidence Act runs as follows: "116. 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 license 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 license was given." The rule that the tenant shall not be permitted to deny the title of the landlord "at the beginning of the tenancy" cannot be restricted to cases where the tenant has been put in possession at the beginning of the tenancy. It may be that on the date of commencement of the tenancy the tenant is in possession and he either attorns to the new landlord or he enters into a fresh contract of tenancy with him. In the case before me it is not one of attornment but of a fresh tenancy under Ext. Al. Sir George Rankin in the case reported in Krishna Prasad v. Baraboni Coal Concern (AIR. 1937 P. C. 251) said: "Further, their Lordships cannot accept the construction of S.116 for which the defendant contended. There is in English case law some authority for the view that a tenant is only estopped from denying his landlord's title if at the time when he took his lease he was not already in possession of the land. But in S.116, the Indian Legislature has formulated no such condition. The words "at the beginning of the tenancy" give no ground for it. When a demise of land is made and acted on when the tenant proceeds to occupy and enjoy under the grant, gets the shelter of the grantor's title and the benefit of his covenants, it is difficult to see why "during the continuance of the tenancy" he should be free of this form of estoppel. "Tenant who has occupied but not entered" is a difficult notion to thrust into S.116 and quite impossible to find therein." This decision of the Privy Council has been cited time and again in cases where the question of estoppel under S.116 has arisen and the correctness of the principles laid, down by their Lordships of the Privy Council have never been doubted. 11. But Sri. Bhaskaran Nambiar, learned counsel for respondents 4 to 9 contend for the view that if a tenant was already in possession when he either attorned to the new landlord or entered into a fresh agreement of tenancy with him the rule of estoppel arising by reason of S.116 of the Evidence Act would not apply. The case before the Calcutta High Court reported in Lal Mohamad v, Kallanus (ILR.11 Cal. 519) is the one on which considerable reliance is placed by Sri. Bhaskaran Nambiar. According to him that case is one on all fours with the facts of this case. In that case a kabuliat was executed by the tenant in favour of a new landlord, he having been in possession even earlier. 519) is the one on which considerable reliance is placed by Sri. Bhaskaran Nambiar. According to him that case is one on all fours with the facts of this case. In that case a kabuliat was executed by the tenant in favour of a new landlord, he having been in possession even earlier. Pursuant to the kabuliat he also paid rent. Later he disputed the title of the landlord. He was met with the plea of estoppel under S.116 and the court held that the words "at the beginning of the tenancy" in S.116 of the Evidence Act shows that the Section only applies to cases in which tenants are put into possession under the tenancy by the person to whom they have attorned, and not to cases in which the tenants have previously been in possession. What has been said in the case before the Privy Council clearly goes against the view taken by the Calcutta High Court so far as it concerns the particular question canvassed before me. But Mr. Bhaskaran Nambiar relies on the reference to Lal Mohamad v. Kallanus (ILR.11 Cal. 519) in the same judgment of the Privy Council and would urge that the Privy Council has approved the correctness of the Calcutta High Court's view. But I do not think that the learned counsel is right. How the Calcutta decision is explained is apparent from the following passage in the judgment: "Of the Indian cases, 11 Cal. 519 and 7 CWN596 have sometimes been taken as establishing the doctrine now advanced by the defendant company, but both cases are really outside S.116, not being concerned with title at the beginning of the tenancy, but with the common case of a sitting tenant attorning to anew individual as entitled to receive rent. It is important to notice in such cases that neither a new tenant nor a new kabuliat necessarily implies a new tenancy." (1937 PC. 251) It would appear from what their Lordships of the Privy Council have said in this connection that the rule of estoppel would apply in the case of a new tenancy but not if it be one of mere attornment. The case before me is one of a new tenancy and not a mere attornment, and therefore in any view of the matter the decision in 11 Cal. 519 will not apply. The case before me is one of a new tenancy and not a mere attornment, and therefore in any view of the matter the decision in 11 Cal. 519 will not apply. What was said by the Privy Council was said even earlier by the Indian High Courts and I need only refer to the decision of the Bombay High Court which considers some of the earlier cases. It was said by a Bench of the Bombay High Court in the case reported in Shankar Rana v. Jagannath (AIR. 1928 Bombay 265) that There are no words in S.116, Evidence Act. to show that the tenant must be put into possession by the landlord in order to estop the tenant from disputing the landlord's title. The words "at the beginning of the tenancy" have been construed in some cases to mean the time when the tenant was first let into possession. That view is not accepted by the majority of the judges of the Full Bench in Venkata Chetty v. Aiyanna Coundan (2) and is not quite consistent with the view taken by this court in Vasudev Daji v. Babaji Ranu (4) and Trimbak Ramachandra v. Shekh Culam Hilani (5). It may be that in some cases the tenant may be in possession before the new tenancy begins and he may attorn to another landlord by executing a lease which constitutes a new tenancy. The question, therefore, to be decided in each case under S.116 would be whether a new tenancy had arisen and not whether the tenant had been let into possession by the landlord. In support of the contention that there was no relation of landlord and tenant between the parties the tenant may assert that the contract of tenancy is void or voidable on account of misrepresentation or fraud." That the rule of estoppal embodied in S.115 of the Evidence Act extended to cases where the tenant was already in possession and that this principle was recognised in the decision in Krishna Prasad v. Baraboni Coal Concern (AIR. 1937 P.C. 251) was noticed by the Calcutta High Court in Indian Elec. Works v. B. S. Mantosh (AIR. 1956 Cal. 146). To the same effect is the decision of the Jammu and Kashmir High Court in Khalil Sufi v. Aria Bhat (AIR. 1960 J. & K. 132). 1937 P.C. 251) was noticed by the Calcutta High Court in Indian Elec. Works v. B. S. Mantosh (AIR. 1956 Cal. 146). To the same effect is the decision of the Jammu and Kashmir High Court in Khalil Sufi v. Aria Bhat (AIR. 1960 J. & K. 132). "It is well settled that to enable a. landlord to invoke S.116 of the Evidence Act against his tenant he need not have let his tenant into actual possession of the land on the execution of the lease deed; a tenant who was already in possession at the time of the execution of the base will be as much estopped under S.116 as the one who was let in by the landlord on the execution of the lease. The contention of the appellant, tenant that the rule of estoppel embodied in S.116 does not apply to him is, therefore, devoid of force." Justice Misra of the High Court of Orissa in the decision in Laxminarayan v. Durgadevi (AIR. 1967 Orissa 92) has noticed the decision in 11 Cal .519 and according to the learned judge the decision of the Privy Council has not accepted the Calcutta decision as laying down the correct law. 12. Before I leave this question I have necessarily to notice the decision reported in John Nadjarian v. E.F. Trist (AIR. 1945 Bombay 399) which according to the counsel for the respondents, strikes a note different from that of the various High Courts. In that case Justice Chagla was referring to the distinction between the creation of a new tenancy and an attornment with reference to the applicability of S.116 of the Evidence Act. Mere attornment does not create a new tenancy. The question in every case where the question of applicability of S.116 arises would be whether it is a mere case of attornment without the creation of a new tenancy or whether a new tenancy has been created. S.116, in terms, would apply only where a new tenancy is created and not in a case where there is mere attornment though even in such a case the general principle of estoppel may have application. That is really what has been pointed out by the learned judge in the Bombay decision, to which I have just now adverted. 13. S.116, in terms, would apply only where a new tenancy is created and not in a case where there is mere attornment though even in such a case the general principle of estoppel may have application. That is really what has been pointed out by the learned judge in the Bombay decision, to which I have just now adverted. 13. I have already observed that though the rule of estoppel may operate to bind a party to a lease deed so as to debar him from challenging the title of the landlord at the commencement of the tenancy whether he be put in possession under the tenancy or was already in possession a challenge to such deed can be made on grounds permissible under law as valid grounds of challenge to a contract. But it is urged before me that even unilateral mistake is sufficient to seek avoidance of such a document. In support of this contention a passage from the judgment of Mr. Justice Chagla in the decision reported in John Nadjarian v. E. F. Trist (AIR. 1945 Bom. 399) is relied on by the learned counsel. The learned counsel points out that in the Bombay case the learned judge takes the view that the tenants are not altogether estopped from showing that, either through ignorance of title of the landlord or by fraud in the matter of execution of the kabuliyat, the tenants have attorned. Ignorance on the part of one of the parties to the transaction, of the real state of affairs may amount only to a mistake and unilateral mistake is certainly not a ground to avoid a contract. S.22 of the Contract Act which reads "A contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact" answers this. Therefore I cannot agree with the contention that Ext. Al can be avoided if one of the parties to it was under a mistake. On the facts of this case there is no scope for any mistake nor is there any such plea. 14. From what I have stated above, it follows that the tenant under Ext. Al was bound by estoppel under S.116 of the Evidence Act from disputing her liability to answer for the obligations arising thereunder. On the facts of this case there is no scope for any mistake nor is there any such plea. 14. From what I have stated above, it follows that the tenant under Ext. Al was bound by estoppel under S.116 of the Evidence Act from disputing her liability to answer for the obligations arising thereunder. In that event the plaintiff will be entitled to a decree for arrears of rent. But what would be the quantum of rent that he would be entitled to is a matter for investigation, applying the provisions of S.73 of the Act 1 of 1964. I am remitting this case back to the trial Court for the purpose, and only for the purpose of determining the quantum of rent for which a decree is to be granted to the plaintiff, in the light of what I have stated above and to pass a decree accordingly. The Second Appeal is allowed to a limited extent as above. But in the circumstances of the case, I direct the parties to suffer costs throughout.