Short Note : 1. It was a revision by the defendants against the order dated 11-12-1976 whereby the defendant's application under section 10 CPC for the stay of the suit was disallowed. The plaintiff-non-applicant No. 1 had filed the suit against the applicant Nos. 1 and 2 and their brother Kailash Narayan and mother Vaikunthi Bai for ejectment and arrears of rent alleging that Gaurishanker, deceased father of the present applicant, was his tenant of the suit house since 4-7-1969 for 11 month and he having died in the year 1971, the defendants continued to reside in the suit house having inherited the tenancy rights. The defendants had in their written statement while controverting the plaint allegation, inter alia, contended that the suit house was a part of their ancestral property wherein defendants Nos. 1 and 3 (sons of deceased Gaurishanker) were residing in their own right of survivorship and that the defendant No. 4 was residing with them being their mother and that they were not residing in the suit-house as the heirs of deceased Gaurishanker. It was also contended that there was a dispute with regard to the joint ancestral property between the deceased Gaurishanker and his brother, and therefore, sham sale of the joint ancestral property including the suit house was made without any consideration and without any legal necessity by Gaurishanker at the instigation of the plaintiff, who was his son-in-law in favour of the plaintiff and, as a part of the said sham transaction of sale, the rent note was executed in favour of the plaintiff regarding the suit house that very day i.e. on the date of the sale to give the sale in question a colour of genuineness. The defendants had also contended that earlier to the institution of the present suit there were already three suits pending, and in all those suits the validity of the sale-deed which included the sale of the suit house and the rent not which was in question in the present suit had been challenged. The defendants had also contended that earlier to the institution of the present suit there were already three suits pending, and in all those suits the validity of the sale-deed which included the sale of the suit house and the rent not which was in question in the present suit had been challenged. Held : As could be gathered from the arguments of the learned council for the parties, the controversy is centered only on one question that as the present suit is based on the contract of tenancy, the question of title cannot be investigated in it and, therefore, the question involved in the previously instituted suits cannot be said to be directly and substantially involved in the present suit. To solve the aforesaid controversy, reference has to be made to section 116 of the Evidence Act. To bring this section into play so as to operate against the tenant and in favour of his landlord, the real question to be decided is whether there was a tenancy. Therefore, the alleged tenant or any person alleged to be claiming under the tenant is not debarred from putting his defence that he was not put in possession by the landlord or that he is not claiming any right under the alleged tenant. So also the alleged tenant or any person alleged to have been claiming under him is not debarred from raising a defence that the alleged contract of tenancy contained in a lease deed or rent note shows only a part of other document, forming one transaction and such a transaction is illegal. In this view of the matter, in the instant case, the defence of the defendants, being, inter alia, that they are occupying the suit premises under their own birth right being the co-owners of a joint Hindu family to which according to them the property belonged and that their deceased father had no right to alienate it, cannot be precluded by attracting the provisions of section 116 of the Evidence Act. Bhayan Lallu v. Umar Mohammed Bhaiji and others, AIR 1927 Bombay 129, Trivenidevi Naraindas v. Vijay Mohan Bose, 1976 JLJ 140 relied on. Shriram pasricha v. Jagannath and others, AIR 1976 SC 2335 distinguished. Revision allowed.