MANU/SC/0748/1987

Equivalent/Neutral Citation: AIR1987SC 2192, 1987(2)APLJ (SC ) 65, 1987(2)ARC 371, 1987 INSC 250, JT1987(3)SC 571, 1987(2)SC ALE577,
(1987)4SC C 424, [1988]1SC R145, 1988(1)UJ175

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2223 of 1987
Decided On: 15.09.1987
D. Satyanarayana Vs. P. Jagadish
Hon'ble Judges/Coram:
A.P. Sen and B.C. Ray, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.K. Ganguli, Adv
For Respondents/Defendant: G. Narasimhulu, Adv.
Case Note:
Tenancy - eviction - Andhra Pradesh Buildings (Lease, Rent and Eviction)
Control Act, 1960 and Section 116 of Indian Evidence Act, 1872 - whether
appellant estopped from denying title of lessor under Section 116 despite of
threat of eviction by owner of premises - as per Section 116 no tenant of
immovable property shall during continuance of tenancy be permitted to deny
that landlord of such tenant had at beginning of tenancy title to such
immovable property - rule of estoppel is restricted not only in extent but also
time - considering evidences appellant cannot be said to be under threat of
eviction - appellant entitled to dispute title of respondent - held, Order of
eviction in favour of respondent not sustainable.

JUDGMENT
A.P. Sen, J.
1. This appeal by special leave brought from the judgment and order of the High Court
of Andhra Pradesh dated August 21, 1986 raises a question of general importance. The
High Court has upheld the judgment of the Chief Judge, City Small Causes Court dated
April 29, 1985 directing the eviction of the appellant from the demised premises under
Section 10(2)(vi)of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act,
1960. The question is whether the appellant was estopped from denying the title of the
lessor under Section 116 of the Evidence Act, 1872 despite the fact that there was
threat of eviction by the owner of the demised premises one Krishnamurthy i.e. the
person having title paramount.
2 . There is no material point of fact which is now in dispute. The demised premises
which is a removable wooden cabin or kiosk located at one corner of a building
belonging to one Krishnamurthy was let out on a rent of Rs. 6 per day which later was
increased to Rs. 10, by the respondent P. Jagadish, son of the original tenant P.R.N.
Upadhyaya on March 9, 1977. Admittedly, the main premises i.e. the building was
demised by Krishnarauithy to the said P.R.N. Updhyaya in the year 1972 and in course

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of time he had sublet different portions of the premises to different persons. By a notice
dated November 8, 1980 the head lessor Krishnamurthy served a notice of eviction on
the appellant and other sub-tenants alleging that there was unlawful subletting by the
lessee and that he had decided to terminate the tenancy of the tenant, Upadhyaya with
the expiry of that month i.e. by the end of December 1980. Thereupon, the appellant on
December 4, 1980 was constrained to attorn in favour of the original lessor
Krishnamurthy agreeing to pay him a rent of Rs. 300 per month. Evidently, the
appellant had paid rent to the respondent upto March 31, 1980. After becoming a direct
tenant under the head lessor Krishnamurthy, the appellant stopped paying rent to the
respondent w.e.f. April 1, 1980. On March 13, 1981 the respondent asserting to be the
lessor commenced proceedings for eviction of the appellant from the demised premises
under Section 10(2)(i) and (vi) and 10(3)(b)(iii) of the Act i.e. on the ground that the
appellant was in wilful default in payment of rent, that there was denial of title on his
part and for his bona fide requirement. The First Additional Rent Controller, Hyderabad
by order dated November 3. 1982 disallowed the application on the ground that the
respondent not being the lessor had no locus standi to initiate the proceedings for
eviction. On appeal, the Chief Judge, City Small Causes Court, Hyderabad by judgment
dated April 29, 1985 reversed the order of the learned Rent Controller and directed the
eviction of the appellant under Section 10(2)(i) and (vi) holding that the premises in
question was a building within Section 2(iii) of the Act and that in view of the denial of
his title as well as admitted non-payment of rent, the appellant was estopped from
denying the title. That decision of his has been upheld by a learned Single Judge of the
High Court by the judgment under appeal. The judgment the High Court mainly rests on
the rule of .estoppel.
3. The appeal must be allowed on the short ground that there being a threat of eviction
by a person claiming title paramount i.e. head lessor Krishnamurthy, the appellant was
not estopped under Section 116 of the Evidence Act from challenging the title and his
right to maintain the eviction proceedings of the respondent P. Jagadish as the lessor.
Section 116 of the Evidence Act provides that no tenant of immovable property 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.
Possession and permission being established, estoppel would bind the tenant during the
continuance of the tenancy and until he surrenders his possession. The words "during
the continuance of the tenancy" have been interpreted to mean during the continuance
of the possession that was received under the tenancy in question, and the Courts have
repeatedly laid down that estoppel operates even after the termination of the tenancy so
that a tenant who had been let into possession, however, defective it may be. so long
as he has not openly surrendered possession, cannot dispute the title of the landlord at
the commencement of the tenancy. The rule of estoppel is thus restricted not only in
extent but also in time i.e. restricted to the title of the landlord and during the
continuance of the tenancy; and by necessary implication it follows that a tenant is not
estopped, when he is under threat of eviction by the title paramount; from contending
that the landlord had no title before the tenancy commenced or that the title of the
landlord has since come to an end.
4 . The rule of estoppel embodied under Section 116 of the Evidence Act is that, a
tenant who has been let into possession cannot deny his landlord's title, however
defective it may be, so long as he has not openly restored possession by surrender to
his landlord. During the continuance of the tenancy, the tenant cannot acquire by
prescription a permanent right of occupancy in derogation of the landlord's title by mere
assertion of such a right to the knowledge of the landlord. See: Bilas Kunwar v. Desraj
Ranjit Singh ILR (1915) 37 All. 557 (PC) and Atyam Veerraju and Ors. v. Pechetti

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Venkanna and Ors. MANU/SC/0349/1965 : [1966]1SCR831 . The general rule is,
however, subject to certain exceptions. Thus a tenant is not precluded from denying the
derivative title of the persons claiming through the landlord. See: Kumar Krishna Prosad
Lal Singha Deo v. Baraboni Coal Concern Limited and Ors. MANU/PR/0072/1937.
Similarly, the estoppel under Section 116 of the Evidence Act is restricted to the denial
of the title at the commencement of the tenancy. From this, the exception follows, that
it is open to the tenant even without surrendering possession to show that since the
date of the tenancy, the title of the landlord came to an end or that he was evicted by a
paramount title holder or that even though there was no actual eviction or
dispossession from the property, under a threat of eviction he had attorned to the
paramount title-holder. In order to constitute eviction by title paramount, it has been
established by decisions in England and in India, that it is not necessary that the tenant
should be dispossessed or even that there should be a suit in ejectment against him. It
will be sufficient if there was threat of eviction and if the tenant as a result of such
threat attars to the real owner, he can set up such eviction by way of defence either to
an action for rent or to a suit in ejectment. If the tenant, however, gives up possession
voluntarily to the title-holder, he cannot claim the benefit of this rule. When the tenancy
has been determined by eviction by title paramount, no question of estoppel arises
under Section 116 of the Evidence Act. See : Adyanath Ghatak v. Krishna Prasad Singh
and Anr. MANU/PR/0056/1948. The principle must equally apply when the tenant has
attorned under a threat of eviction by the title paramount and there comes into
existence a new dural relationship of landlord and tenant as between them. The law is
stated in 27 Halsbury's Laws of England, 4th edn., para 238:
238. Eviction under title paramount. In order to constitute an eviction by a
person claiming under title paramount, it is not necessary that the tenant
should be put out of possession, or that proceedings should be brought. A
threat of eviction is sufficient, and if the tenant, in consequence of that threat,
attars to the claimant, he may set this up as an eviction by way of defence to an
action for rent, subject to his proving the evictor's title. There is no eviction,
however, if the tenant gives up possession voluntarily.
Quite recently, this Court in Mangat Ram and Anr. v. Sardar Meharban Singh and Ors.
MANU/SC/0774/1987 : AIR1987SC1656 , to which one of us was a party, observed:
The estoppel contemplated by Section 116 is restricted to the denial of title at
the commencement of the tenancy and by implication it follows that a tenant is
not estopped from contending that the title of the lessor has since come to an
end.
See also . Fida Hussain v. Fazal Hussain and Ors. MANU/MP/0084/1963 :
AIR1963MP232 , K.S.M. Guruswamy Nadar v. N.G. Ranganathan MANU/TN/0246/1954
: AIR1954Mad402 , S.A.A. Annamalai Chettiar v. Molaiyan and Ors.
MANU/TN/0185/1970 : AIR1970Mad396 and Chidambara Vinayagar Devasthanam v.
Duraiswatny ILR (1967) 1 Mad. 624.
5. In the premises, the High Court as well as the learned Chief Judge of the City Small
Causes Court were clearly in error in allowing the proceedings brought by the
respondent under Section 100(2)(i) and (vi) of the Act by relying on the rule of
estoppel embodied in Section 110 of the Evidence Act. The judgment of the High Court
cannot be sustained for the reason that there is no finding that the dispute as to title
was not bona fide in terms of Section 10(2)(i) and further inasmuch as the appellant
could not be treated to be in arrears of rent since he has been paying rent to the head

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lessor Krishanamurthy after the attornment of the tenancy to him. The terms of Section
10(2)(i) and (vi) of the Act are set out below:
10. Eviction of tenant.-(2) A landlord who seeks to evict his tenant shall apply
to the Controller for a direction in that behalf If the Controller, after giving the
tenant a reasonable opportunity of showing cause against the application, is
satisfied -
(i) that the tenant has not paid or tendered the rent due by him in
respect of the building within fifteen days after the expiry of the time
fixed in the agreement of tenancy with his landlord or in the absence of
any such agreement, by the last day of the month next following that
for which the rent is payable, or
(vi) that the tenant has denied the title of the landlord or claimed a
right of permanent tenancy and that such denial or claim was not
bonafide, the Controller shall make an order directing the tenant to put
the landlord in possession of the building and if the Controller is not so
satisfied, he shall make an order rejecting the application.
6 . The High Court failed to appreciate that there could be no order of termination in
terms of Section 10(2)(i) unless it could be said that in the facts and circumstances of
the case the dispute as to title was not bonafide. It cannot be said having regard to the
fact that the appellant was under threat of eviction by the title paramount, that the rule
of estoppel under Section 116 of the Evidence Act applied and therefore he was not
entitled to dispute the title of the respondent. Furthermore, the appellant having on
December 4, 1980 after being served with the notice of eviction attorned to the head
lessor, there came into existence a direct tenancy. It has been brought to our notice that
the appellant has since that date been paying rent to his present lessor Krishnamurthy
and is not in arrears of rent. The order of eviction passed by the learned Chief Judge as
well as the High Court against the appellant under Section 10(2)(i) and (vi) of the Act is
not sustainable in law.
7. In the result, the appeal succeeds and is allowed. The proceedings for eviction of the
appellant from the demised premises under Section 10(2)(i) and (vi) and 10(3)(b)(iii)
of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 are
quashed. No costs.
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