JUDGMENT Hon’ble S.U. Khan, J.—Heard learned counsel for the appellants and learned counsel for defendants respondent Nos. 2 to 5. 2. Defendant/ Respondent No. 1 has entered into compromise with the appellants and it has been agreed that decree of the trial Court may be restored. The compromise was filed in Second Appeal No. 1690 of 1982 and verified by the Registrar on 31.10.1991. 3. These are plaintiff’s second appeals arising out of O.S. No. 25 of 1974, which was decreed on 10.11.980 by VI Additional Munsif, Mathura. Against the said decree two appeals were filed. One was by defendant Nos. 2 to 5, which was numbered as Civil Appeal No. 245 of 1980 and the other appeal was filed by defendant No. 1 Ram Prakash which was numbered as Civil Appeal No. 256 of 1980. The appeals were decided by III A.D.J., Mathura on 23.2.1982. Judgment and decree passed by the trial Court for eviction was set aside. However suit was decreed against defendant No. 1, Ram Prakash for recovery of Rs. 67.40 as arrears of rent. Against the said decrees these appeals have been filed. 4. The suit was filed for possession of land and for recovery of rent. It was alleged in the plaint that defendant No. 1, Ram Prakash was the tenant on behalf of the plaintiff of the land in dispute whose tenancy had been terminated and he was defaulter also since 6.12.1972. Rate of rent was alleged to be Rs. 18/- per month. It was also alleged that defendant No. 1 had sublet part of the property in dispute to defendant Nos. 7 and 8 without the permission of the landlord. It was also alleged in the plaint that defendant No. 1 intended to sell his constructions standing on the part of the land in dispute to defendant Nos. 2 to 6. Notice was given on 13.6.1973. 5. The defendant No. 1 replied the notice and stated that rate of rent was Rs. 5/- per month and defendant Nos. 2 to 6 were in possession as his licencees. In the written statement also same things were stated by the defendant No. 1. Tenancy was admitted. It was further pleaded that initially defendant No. 1 was the tenant of Town Area through patta dated 28.3.1964 for 25 years at the rate of Rs. 5/- per month and defendant Nos. 2 to 6 were in possession as his licencees. In the written statement also same things were stated by the defendant No. 1. Tenancy was admitted. It was further pleaded that initially defendant No. 1 was the tenant of Town Area through patta dated 28.3.1964 for 25 years at the rate of Rs. 25/- per year, however plaintiffs filed a suit (O.S. No. 4 of 1965) against him and the town area and in that suit town area did not adduce any evidence regarding its ownership hence under compulsion defendant No. 1 had accepted the plaintiff as his landlord at the rate of Rs. 5/- per month. It was further pleaded in the written statement of defendant No. 1 that defendant Nos. 2 to 6 were his licencees and he had sold the superstructure (malwa) of northern portion to them. It was also stated that after the agreement in O.S. No. 4 of 1965 plaintiff had also executed a perpetual lease deed dated 1.2.1971 in favour of the defendant No. 1, original of which was with the plaintiff. Defendant No. 1 filed its copy as Paper No. 84-ga. 6. Defendant Nos. 2 to 6 filed written statement and pleaded that their possession was not on behalf of defendant No. 1 but they were in possession as owner/ Zamindar and as the land in dispute was vacant hence by virtue of being Zamindar/lumberdar, their father was the owner. It was further pleaded that due to some error during consolidation the land was included in Plot No. 313. It was further pleaded that in order to settle the dispute regarding the constructions, defendant Nos. 2 to 6 paid the cost of the constructions on 20.2.1974 to the defendant No. 1 and thereafter possessed the same. 7. As defendant No. 1 has admitted the case of the plaintiff and vacated the portion in his possession hence the dispute remains only in between plaintiffs appellants and defendants respondent Nos. 2 to 5. Defendant Nos. 7 and 8 also did not pursue the matter. 8. These appeals were admitted on 19.11.1982 by the following order: “Questions posed as question Nos. (a), (b), (c) and (e) are substantial questions of law.” The said questions are quoted below: “(a) Whether in the instant case, Paper No. 84-ga was proved and could be relied upon? Defendant Nos. 7 and 8 also did not pursue the matter. 8. These appeals were admitted on 19.11.1982 by the following order: “Questions posed as question Nos. (a), (b), (c) and (e) are substantial questions of law.” The said questions are quoted below: “(a) Whether in the instant case, Paper No. 84-ga was proved and could be relied upon? (b) Whether the aforesaid Paper No. 84-ga was inadmissible in evidence for want of registration? (c) Whether the notice under Section 106 of Transfer of Property Act sent on behalf of the appellants only was invalid? (e) Whether the respondent Nos. 2 to 6 being licensee and respondent Nos. 7 and 8 being sub-tenants were liable to ejectment?” 9. The questions of law are word by word identical in both the appeals. 10. Defendants respondent Nos. 2 to 5 set up the case that they had purchased superstructure from defendant No. 1. Defendant No. 1 was admittedly the tenant. If defendant Nos. 2 to 5 are held to be licencees of defendant No. 1 they are bound to be evicted under the decree against the defendant No. 1 and they cannot prevent defendant No. 1 from entering into compromise with the plaintiffs. Firstly defendant No. 1 could not transfer a better title to defendant Nos. 2 to 5 than what he himself had got. Secondly, defendant Nos. 2 to 5 merely by purchasing malwa cannot claim any right over the land beneath the superstructure merely on the basis of purchase of malwa. 11. The case taken up by the defendant Nos. 2 to 5 was that in fact they were owners hence just to end/ settle the dispute they purchased superstructure which had been raised by defendant No. 1 and resumed the land beneath the superstructures as true owner/ paramount title holder. Firstly, defendant Nos. 2 to 5 have not been able to establish their ownership title/ paramount title. Secondly, defendant No. 1 did not admit or attorn in the paramount title of defendant Nos. 2 to 5. There is not even an allegation by defendant Nos. 2 to 5 that defendant No. 1 admitted them or attorned in their favour as true owner/ paramount title holder. Defendant No. 1 was in possession of the property which he had taken from town area since March, 1964. Defendant Nos. 2 to 5. There is not even an allegation by defendant Nos. 2 to 5 that defendant No. 1 admitted them or attorned in their favour as true owner/ paramount title holder. Defendant No. 1 was in possession of the property which he had taken from town area since March, 1964. Defendant Nos. 2 to 5 did not assert any right or title for a very long period. Litigation against town area and defendant No. 1 was also initiated by the plaintiff. 12. Under certain circumstances a person who has forcibly been evicted may forcibly take back the possession from the trespasser before the trespasser has matured his title on the basis of prescription. However, in the instant case neither there is any such allegation nor evidence. When defendant Nos. 2 to 5 purchased the superstructure from defendant No. 1 it clearly amounted to their admission of the right of defendant No. 1 which he had driven from the plaintiffs. There is no such allegation that defendant No. 1 while transferring the superstructure to defendant Nos. 2 to 5 also delivered possession of the land beneath that admitting the defendant Nos. 2 to 5 to be the owners of the same. Even if it is so, still it will not confer any right upon defendant Nos. 2 to 5 as they had no clear title. There is no such allegation that there was any threat of eviction of defendant No. 1 by defendant Nos. 2 to 5. 13. The Supreme Court in Vashudeo v. Bal Kishan, AIR 2002 SC 569 , has discussed in detail the theory of paramount title holder and attornment of tenancy in his favour by the tenant. Para-12 of the said authority is quoted below: “12. 2 to 5. 13. The Supreme Court in Vashudeo v. Bal Kishan, AIR 2002 SC 569 , has discussed in detail the theory of paramount title holder and attornment of tenancy in his favour by the tenant. Para-12 of the said authority is quoted below: “12. To constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into possession of the leased premises three conditions must be satisfied: (i) the party evicting must have a good and present title to the property; (ii) the tenant must have quitted or directly attorned to the paramount title holder against his will; (iii) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or there must be an event, such as a change in law or passing of decree by a competent Court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount title holder directly; or, in other words, the paramount title holder must be armed with such legal process for eviction as cannot be lawfully resisted. The burden of raising such a plea and substantiating the same, so as to make out a clear case of eviction by paramount title holder, lies on the party relying on such defence.” 14. The said authority was followed in Om Prakash Gupta v. R.B. Goyal, AIR 2002 SC 665 , para-9 of which is quoted below: “9. In Vashu Dev’s case (supra) the landlord-owner of the tenancy premises was a Trust. The Trust had let out the premises to a tenant and the tenant had inducted a sub-tenant in the premises. The Trust had instituted a suit for eviction against the tenant subsequent to the institution of the suit by tenant against sub-tenant claiming arrears of rent and eviction of the latter. Immediately on institutions of suit by the principal owner, i.e. the Trust, the sub-tenant had voluntarily attorned in favour of the principal owner and without the consent of the tenant. Suit by the principal owner against the tenant was still pending. Immediately on institutions of suit by the principal owner, i.e. the Trust, the sub-tenant had voluntarily attorned in favour of the principal owner and without the consent of the tenant. Suit by the principal owner against the tenant was still pending. This Court noticed the provisions of local rent control law whereunder entitlement of the tenant to hold the suit premises as tenant would not come to an end unless a decree for eviction against him was passed by a Court of law in a suit for eviction institution by the principal owner against the tenant and then held-’till then he would remain a tenant of the Trust. Mere institution of a suit for eviction by the Trust, the owner of the property, against the respondent does not bring the tenancy of the respondent to an end. The respondent cannot be said to have been evicted by title paramount. It cannot be said that the respondent-tenant does not have any defence nor can he lawfully resist the suit filed by the owner Trust. The plain and simple legal position which flows is that the appellant must discharge his statutory obligation to put his landlord, that is, the respondent, in possession of the premises in view of the latter’s entitlement to hold the tenancy premises until his own right comes to an end and the respondent must discharge his statutory obligation to put his own landlord, that is, the Trust, in possession of the tenancy premises on his entitlement to hold the tenancy premises coming to an end. The plea of eviction by paramount title is not available to the appellant for three reasons; firstly, it cannot be said that the Trust is armed with a legal process for eviction which cannot be lawfully resisted by the tenant-respondent or to which he has no defence; secondly, the attornment by the appellant in favour of the Trust is voluntary and not under any compulsion; and thirdly, it cannot be said that the Trust has such good and present title against the tenant-respondent so as to hold the appellant liable to be evicted against his will.” 15. Accordingly, the argument that after purchasing malwa defendant Nos. 2 to 5 resumed possession as owner is utterly fallacious. They cannot claim any independent title hence they cannot question compromise between plaintiffs and defendant No. 1 16. Accordingly, the argument that after purchasing malwa defendant Nos. 2 to 5 resumed possession as owner is utterly fallacious. They cannot claim any independent title hence they cannot question compromise between plaintiffs and defendant No. 1 16. As defendant No. 1 has entered into compromise with plaintiffs, hence question Nos. (a), (b) and (c) do not require decision. 17. As far as question No. (e) is concerned, in view of the above discussion and in view of legal position that a licensee and a sub-tenant, both are liable under the decree against the main tenant, it is decided in favour of the appellants. Accordingly, both the appeals are allowed on the basis of compromise against defendant No. 1 and on merit against the other defendants. Judgment and decrees passed by the lower appellate Court are set aside and the decree passed by the trial Court is restored. ——————