Full Judgment Text
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PETITIONER:
UPPALAPATI VEERA VENKATASATYANARAYANARAJU AND, ANOTHER
Vs.
RESPONDENT:
JOSYULA HANUMAYAMMA AND ANOTHER. J. C. SHAH
DATE OF JUDGMENT:
29/09/1961
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GUPTA, K.C. DAS
SHAH, J.C.
DAYAL, RAGHUBAR
CITATION:
1967 AIR 174 1962 SCR (3) 910
CITATOR INFO :
D 1989 SC1269 (18)
ACT:
Attornment-By tenants infavour of persons claiming but
having no title-How made-Payment of rent if necessary
Finding of fact-Interference by High Court in second appeal.
HEADNOTE:
In the present suit for possession the courts found that
none of the parties had a legal title to the property in the
dispute and in determining which of the parties had
possessory title to the said property the trial court found
that on the death of the daughter of the original owner the
so called reversioners got a Kodaha (Kabuliyat) executed in
their favour by two tenants of the last possessory of the
property and themselves executed a cowle in their favour but
the said tenants did not pay any rent to the so-called
reversioners. The trial court held that,though there was a
kadapa by which it might be said that the tenants who were
there from before had attorned to the so-called,reversioners
it was a mere paper transaction as no rent was paid. On
appeal the first appellate court relying, on the Kadapa and,
cowle, found that the so-called reversioners got peaceful
possession of the-property but did not enter into the
question whether any rent was paid to them by the tenants.
On, second appeal the High Court held that the real question
was whether the tenants really attorned to the reversioners
and as the, first appellate court did not consider whether
there: was.real attornment by, payment, Of rent sent back
the case to the said court for a fresh finding,on that
question whereupon that court returned a finding in favour
of the respondent on the question of possession. The
contention of the appellant on appeal by special leave was
that the High Court had no jurisdiction in second appeal to
reverse a finding of fact arrived at by the first appellate
Court and as the high Court indirectly reversed that finding
of fact by calling for a further finding on the question of
possession the judgment, of the High Court should be set
aside.
Held (per K. N. Wanchoo, K.C Das Gupta and K.J.C. Shah, JJ.)
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that if the so-called reversioners had title in the sense
that they were the next reversioners, then attornment by the
Kadapa would have been sufficient but where a person in
whose favour attornment had been made had no title, a mere
paper attornment would not be sufficient unless there was a
real attornment in the sense that the person who attorned
also paid rent voluntarily or under a decree to the
911
person in whose favour the attornment was, made. The first
appellate court had merely considered the paper attornment
and had not considered the evidence as to the payment of
’rent which was there and had been considered by the trial
court. The High Court- was therefore, justified in
calling for. a finding on a question which was not
considered by the lower appellate court.
Per Raghubar Dayal, J.-Once a tenant agreed, to accept the
person claiming title from the previous landlord, that
amounted to attornment in favour of the new landlord and was
no more dependent on the future conduct of the tenant by way
of payment of rent or otherwise.,
Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern,
(1937) L. R. 64 I. A. 31 I-, referred to.
There was no good reason why the possession of tenants who
had attorned to a person having no, title be not considered
to be, his possession in determining whether he had
preferential possessory title to that of another who too had
no title.
The mere, fact that certain evidence had not been closely
scrutinised in other words, not scrutinised in a manner in
which the second appellate court desired it to be
scrutinised, could not be a ground for interference with a
finding of fact in second appeal.
In the present case the Kadapal the terms of which were
different from those of the old one was not a deed of
attornment merely substituting the new landlord in place of
the old but was a document accepting fresh. tenancy but as
the new lessors had no title to the property the’ lease
executed by the created no right.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 459 of 1958.
Appeal by special leave from the judgment and decree dated
June 29,1955, of the former Andhra High Court in Second
Appeal No. 730 of 1949.
A.V. Viswanatha Sastri and’P. V., R. Tatachari, for the
appellants.
K. Bhimasankaram and G. Gopalakrishanan, for the
respondents.
1961. September 29. The judgment of Wanchoo, Das Gupta
and Shah, JJ., was delivered Wanchoo, J., Dayal J.
delivered a separate
912
WANCHOO, J.-This is an appeal by special leave from the
judgment and decree of the Madras High Court. The
appellants were defendants in a suit brought by the
respondents for possession of certain properties which
originally belonged to one Subbarayudu. The case of the
respondents was that Subbarayudu executed a will dated
September 15, 1885. Under that will the property passed on
hit; death to his wife with life interest and after her
death absolutely to his daughter Krishnavenamma who was in
enjoyment thereof till her death in 1933. The daughter
executed a will on March 24, 1933, in favaur of her step son
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Nagaraju who came into possession of the property on her
death soon after. Nagaraju in his turn executed a will on
August 16, 1933, by which he gave life interest to his wife
who was the first plaintiff (now the first respondent before
us) and thereafter the property was bequeathed absolutely to
his daughters. The second respondent is the tenant of the
first respondent. Nagaraju died soon after executing the
will and the case of the first respondent was that she came
into possession of the property on his death and was in
enjoyment thereof till she was forcibly ejected in 1943 by
the appellants who claimed to be the purchasers of the
property from Seetaramayya and Ramakotayya who in their turn
claimed to be the reversioners of Subbarayudu.
Consequently, the suit out of which the present appeal has
arisen was filed in June, 1944, for possession and mesne
profits.
The suit was resisted by the appellants, and their case was
that they had purchased the property from the reversioners
of Subbarayudu in 1942. It was further contended on their
behalf that on the death of Krishnavenamma the reversioners
came into possession of the property through the tenants who
had been in possession from before under a lease granted to
them by Krishnavenamma. These tenants remained in
possession till the sale deed in favour of the appellants
and attorned to the
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appellants thereafter. Later the two tenants surrendered
possession to the appellants who thus came into actual
possession of the property in suit. The appellants also
contended that the so-called will executed by Subbarayudu
was a forgery and the first respondent had no title to the
property.
On these pleadings, the main point that arose for decision
was whether the first respondent had title to the property
and was in possession of it till she was dispossessed in
1943. Further the title set up by the appellants was also
gone into and their claim as to possession came up for
consideration. The trial court found that the will said to
have been executed by Subbarmyudu was not proved. In
consequence of this finding, it came to the conclusion that
the title of the first respondent which depended upon the
proof of this will was not a legal title. Further it found
that it was not established that Seetaramayya and
Ramakotayya were the next reversioners to the estate of
Subbarayudu. The result of these findings was that no title
was found in either party. These findings have been upheld
by the Subordinate Judge and also by the High Court in
second appeal and therefore it must now be accepted that
both the parties have no title to the property in suit.
The main contest therefore centred round possessory title
which was also asserted by both the parties in the trial
court. On this question the trial court found that after
the death of Krishnavenamma, the name of the first
respondent was entered in the revenue papers in her place
but the property was actually in possession of the two
tenants by virtue of the lease executed in their favour by
Krishnavenamma in 1929 for six years. Therefore, there was
a kind of race between respondent No. I and Seetaramayya and
Ramakotayya who set themselves up as reversioners to obtain
the favour of these two tenants, and the so. called
reversioners managed to obtain in June, 1933, a kadapa from
the two tenants for five years
914
ending with May, 1938. They also executed a cowle in favour
of the tenant,% and both these documents were registered in
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July, 1933. But the finding of the trial court was that
there was no payment of rents in the years 1933 ’and 1934
and that the real fight for the land started towards the end
of 1935 or the beginning of 1936 and although documents were
taken from the tenants by the so called reversioners no
actual payment of rent was made to them. It also held that
in this game of winning the favour of the tenants the real
gainers were the tenants who paid no rent to either the
first respondent or the so-called reversioners. The trial
court further held that it was in 1936 that the first
respondent managed to dispossess the tenants forcibly
through her tenant Moka Subbarao who seems to have been a
person of some influence in the village. Thereafter the
first respondent remained in possession through her tenant
till she was dispossessed in November, 1943, forcibly by the
present appellants after they had purchased the lands from
the go-called reversioners. In effect, therefore. the
finding of the trial court was that neither party was in
Possession. of the property up to 1936 and it was only in
1936 that the first respondent came into possession through
Moka Subbarao by dispossessing the tenants who were holding
the land from the time of Krishnavenamma and had paid no
rent to anybody after her death In consequence the trial
court hold that as the possession of the first respondent
was earlier she was entitled to succeed at least on the
ground of possessory title. Incidentally it also held that
although the title of the first respondent was defective for
the reason that Krishnavenamma did not have absolute right
in the property it was not :void but was only voidable at
the instance of the nearest reversioner or some one else
having better title, which the appellants or their
predecessors in-interest did not have. In the result the
suit was decreed with mesne profits.
915
This was followed by an appeal to the Subordinate Judge by
the present appellants. We have already said that the
Subordinate Judge upheld the findings of the trial court on
the title of the parties and came to the conclusion that the
title of neither party was proved. He also rejected the
view of the trial court that the first respondent at any
rate had some title though defective it might be. He then
addressed himself to the question of possessory title and
considered whether the finding of the trial court that the
first respondent was in possession’ earlier than the
appellants and was therefore entitled to recover possession
on the basis of her. possessory title, was correct. He.
came to the conclusion that the so-called reversioners had
got possession of the property peacefully immediately after
the reversion opened. in 1933 and therefore the appellants
were entitled to maintain their possession as they derived
their title from the so called reversioners who had earlier
possession than the first respondent. In coming to this
conclusion the Subordinate Judge relied on the Kadapa
executed by the tenants in favour of the so-called
reversioners in June, 1933, and the cowle executed by the
so-called reversioners in favour of the tenants. But the
Subordinate Judge did not consider the further question
which was considered by the trial court,. namely, whether
after the execution of the Kadapa and the cowle the so
called reversioners. ever collected rents from the tenants
who were there from the time of Krishnavenamma between 1933
and 1936. This question had been specifically considered by
the trial court and it had come to the conclusion that
though the kadapa and the cowle had been executed they were
mere paper transactions and the so-called reversioners had
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never collected rents during this period and the tenants had
never paid the rent to anybody during this period. The
Subordinate Judge, however, allowed the appeal and dismissed
the
916
suit on the view taken by him that the so-called
reversioners had come into possession of the property after
the death of Krishnavenamma end were forcibly ejected in
1936 by Moka Subbarao as the tenant of the first respondent.
This was followed by a second appeal by the respondents.
The High Court took the view that the finding of the
Subordinate Judge that the so-called reversioners were in
possession from 1933 to 1936, could not be accepted.
According to the High Court, the main question was whether
the tenants who were there from before really attorned to
the reversioners. The High Court then went into some of the
evidence and held that various matters which should have
received the attention of the Subordinate Judge in coming to
a conclusion on this important point of fact were not
considered by him; therefore it was not prepared to accept
the finding of the Subordinate Judge in second appeal and
required the Subordinate Judge to submit a fresh finding on
this question. When the’ matter went back to the
Subordinate Judge he examined the entire evidence and came
to the conclusion that the so-called reversioners in order
to create evidence of possession had taken the kadapa from
the tenants after winning them over to their side, perhaps
by a promise not to collect rent from them. He also came to
the conclusion that the so-called reversioners were not in
possession of the property after the death of Krishnavenamma
from 1933 to 1936 and that it appeared that during that
period neither party was in possession and only ’the tenants
who were there from the time of Krishnavenamma continued to
being possession but without paying rent to anybody. He
further held that in the circumstances the possession of the
tenants could only ’be treated as that of the rightful owner
which neither party was in this case. Finally he came to
the conclusion that it was for the first time in 1936 that
Moka Subbarao took possession of the
917
land as the tenant of the first respondent and the
appellants got possession for the first time in 1943.
Therefore he held that as the first respondent’s possession
was earlier it must be restored. This finding was accepted
by the High Court with the result that the second appeal was
allowed and the order of the trial court restored. The
appellants have come to this Court by special leave.
The main contention urged before us on behalf of the
appellants is that the High Court had no jurisdiction in
second appeal to reverse the finding of fact arrived at by
the first appeal court as to possession, and inasmuch as the
High Court indirectly reversed that finding by calling for a
further finding on the question of possession, the judgment
of the High Court should be set aside as without
jurisdiction. On the other hand it has been urged on behalf
of the respondents that though the first order of the High
Court calling for a finding looks as if it was interfering
with a finding of fact as to possession, a close examination
of the circumstances and the findings of the trial court and
the first appellate court will show that in fact there was
no finding by the first appellate court on the crucial
question which arose in the suit resting on possessory title
and therefore the High Court was justified in calling for a
finding in the matter. It is urged that where the case is
based on possessory title only, a party must establish
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effective possession before it can succeed on its possessory
title. On the question of effective possession the trial
court had found that though there was a kadapa by which, it
may be said, the tenants who were there from before had
attorned to the so-called reversioners, that was a mere
paper transaction and the tenants never paid rents to the
so-called reversioners; as such,the reversioners never had
effective possession between 1933 and 1936. According to
the respondents, this finding of the trial court should have
been specifically considered by the Subordinate
918
Judge; but all that ’the Subordinate Judge did ’was" to rely
on the kadapa and hold on the basis of that document that
the so-called reversioners had come into possession
peacefully. It is said that whatever may be said about the
value of attornment: made in favour of the true owner the
position. is different where attornment is in favour of a
person who is not- the true owner. In such case before the
person in whose favour an attornment has been made, can
establish that , his possession was effective it must also
be shown that he was paid rent by the tenants who attorned
to him. Therefore, it is urged that, as there was no
finding by the Suboridnate Judge on this crucial question
the, High Court was justified in sending the case back to
the Subordinate Judge for a finding in- this regard. As
such, it is urged that this is not a case where the High
Court had reversed, a finding of fact by the first appellate
court which it is admitted it has no jurisdiction to ’do;
but it is a case where there was no finding on the crucial
question of fact by the Subordinate Judge and the High Court
therefore hid jurisdiction to call for a finding in this
regard.
We are of opinion that though on a first reading of the High
Court judgment calling for,a finding it does look as if the
High Court was reversing the finding of fact as to
possession’ when it called for a further finding on the
question, a closer examination of its Judgment calling for a
finding along with the findings by the Munsif and the
Subordinate Judge on the crucial question involved in this
case shows that it held that there was no ’finding by the
Subordinate Judge on that crucial question,, though the
trial court had given a finding in favour of the first
respondent in that respecter, As both parties were relying
on possessory title, it was necessary that they should prove
effective possession over the, property in order to succeed
on the basis of possessory title. By effective possession
we mean either’ actual possession or
919
possession through a tenant who must have paid rent
voluntarily or under a decree to the person claiming
possessory title. The kadaps by the previously existing
tenants in favour of the so-called reversioners all along
been treated as an attornment by all the three courts and
we therefore accept it as such. If the so-called
reversioners Third title in the sense that they were the
next reversioners, then attornment by the kadapa would have
been sufficient to establish their possession over the
property; but where the person in whose favour the
attornment bad been made has no title,, a mere paper
attornment would not be enough to establish as against third
parties the possession of the person in whose favour
attornment has been made and it will still have to be shown
that the possession. was effective in, the sense that the
person who attorned also paid rent voluntarily or under a ,
decree to the person in whose favour he made the attornment.
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The fact that, the tenants who had executed the kadapa may
be estopped from challenging the title of the so-cAlled
reversioners, if a suit was brought Against them makes no
difference to the position stated above. The finding of the
Munsif was that no rent had been paid to anyone by the
tenants; further no suit had, been brought by the so-called
reversioners, to recover the rent before the first
respondent got into possession. The kadaps therefore
remained a mere paper transaction and attornment through it
would not be sufficient to put the so-called reversioners in
effective possession and confer possessory title on them
which could be taken advantage of by the appellants to show
earlier possessory title as against the undoubted
Possessory title of the first respondent from 1936.
It seems to us that, that is what the High Court meant when
it said that the crucial question in this case was "whether
the tenants really attorned to the reversioners". We
emphasise the word "really" Which shows that the High Court
was not satisfied With mere paper attornment which was all
920
that was found by the Subordinate Judge and rightly
required in a case based on possessory title only that
the attornment should be a real attornment, i. e., one in
which the person attorning should also have paid rent either
voluntarily or under a decree to the person in whose favour
the attornment was made. The Subordinate Judge, however,
had merely considered the paper attornment and had not
considered the evidence as to payment of rent, which was,
there and which had been considered by the trial court. The
trial court had come to the conclusion after considering the
evidence relating to payment of rent that in fact there was
no payment though the attornment was made through the
kadapa. The trial court therefore held that from 1933 to
1936, only the tenants were in possession but they never
paid rent to anybody and thus neither party was in
possession through them. This aspect of the finding of the
trial court was completely overlooked by the Subordinate
Judge who decided the question of possession merely on the
paper attornment (namely, the kadapa). What the High Court
seems to have meant when it said that the real question was
not properly considered by the Subordinate Judge therefore
was that he was merely satisfied with paper attornment in a
case based on possessory title which was not enough in law
and had not given any finding as, to whether the attornment
was a reality in the sense that the rent was paid and would
thus result in effective possession of the so-called
reversioners through the tenants. It seems to us therefore
that though the form in which the High Court expressed
itself when it called for a finding was not happy, what the
High Court really did was to hold that there was no finding
by the Subordinate Judge on the question of effective
possession of the so-called reversioners after a
consideration of the evidence relating to payment of rent
etc.; it therefore called for a finding on the question of
effective, possession after
921
consideration of the entire evidence. This in our opinion
the High Court was justified in doing because the trial
court had considered the entire ,evidence and had come to
the conclusion that the so-called reversioners had no
effective possession and the attornment through the kadaps
was a mere paper transaction. In these circumstances it
cannot be said that the High Court had no jurisdiction to
call for a finding.
It is not disputed that if the High Court had jurisdiction
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to call for a finding the final order of the.-High Court
allowing the appeal based on the finding which was submitted
was not open to question.
We therefore dismiss the appeal but in the circumstances
pass no order as to costs of this Court.
RAGHUBAR DAYAL, J.-I agree that the appeal be dismissed, but
for different reasons.
If Narasimhulu and Ramudu alias Mark, who were in possession
of the land in suit under the lease, Ex. P-6, dated May 6,
1929, for six years from Josyula Krishnavenamma, had
attorned to Ramakotiah and Seetharamiah by executing the
Kadapa (Kabuliat) Ex. D-4, on March 16, 1933, I do not
think that any further payment of rent was necessary to make
the attornment effective and am of opinion that in that case
the view of the learned Subordinate Judge to the effect that
the predecessors-in-interest of the defendants-appellants
were in possession through their tenants over the land in
suit, Was correct. The High Court did not decide by its
first order remitting the point No. 2, viz., ,whether the
plaintiffs got into possession of the suit properties
earlier than the defendants and their predecessor-in-title
and whether they are entitled to recover possession of the
suit properties on the strength of their Possessory title’
for a fresh finding that the attornment by the execution of
the deed of Kadapa was not good attornment without the
executants paying rent to Ramakotiah and Seetharamiah. The
learned Judge simply said:
922
"Apart from ’the question whether the
principle of law adopted by the learned.
Judge is welf-founded or not, on which I
express-no opinion at present it seems to me
that the finding of the learned Judge that,,
the first defendant bad prior, possession from
193 to 1936 cannot be accepted in second
appeal"
The finding about the prior possession, of the learned
Subordinate Judge was not accepted by the High Court because
it considered that the Subordinate Judge bad not closely
scrutinized the evidence in the case on the very crucial
question in issue between the parties. This crucial
question was formulated as ’whether the tenants really
attorned to the reversgioners and the reversioners
recognized the possession of the tenants as theirs.’ What
was want by the High Court from this question, is not clear
to me. If the execution of the deed, Ex. D-4, amounted to
the attornment by the tenants in favour of Seetharamiah and
Ramakotiah, who claimed to be the heirs of Krishnavenamma,
and the execution of the cowle, Ex. D-5, by those two
persons in favour of the tenants, to the recognition of the
tenants as their tenants, no further question of scrutiny of
any other evidence on record could have arisen. The other
evidence on record about which the High Court expressed its
opinion, and that too not in a final form, as a fresh
finding was being called on the basis of that evidence,
mainly consisted of the evidence in favour of the
defendant,%. Non-consideration of that evidence could have
been a grievance to the defendants, but not to the
plaintiffs appellants before the High Court. Expression of
opinion in that form on such evidence wag detrimental to the
interest of the defendant in a fresh ’consideration of that
evidence by the Subordinate Judge, who,, naturally, in his
fresh finding, followed a practically similar line of
criticism against "that evidence. The mere fact that
certain evidence had not been closely scrutinized or, in
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other orders, not scrutinized, in & manner, in which the
second
923
appellate Court desires, it to be scrutinized, cannot be
round for interference with the finding of fact in the
second appeal. If the High Court considered, is being now
urged for the respondent, that without proof of the tenants
actually paying rent to,, Seetharamiah and Ramakotiah, who
laid claim as heirs but have been proved to be not heirs of
Rat Krishnavenamma, there was no valid attornment, the order
for a fresh finding about attornment could be justified on
the ground that the Subordinate Judge had not referred to
the evidence having a hearing on the question of the payment
of rent by the tenants and its receipt by the new landlords
Seetharamiah and Ramakotiah. I however find it difficult to
put such a construction on the High Court’s order when it
did not decide upon the principle of law adopted by the
first appellate Court.
"Attornment, in its strict sense, is an agreement of the
tenant to a grant of the reversion made by the landlord to
another, or, as it has been defined’, ’the act of the
tenants putting one person in the place of another as his
landlord"-see paragraph 732, Foa’s General Law of Landlord
and Tenant. This means that in the first instance
attornment is made in favour of the person who has derived
his title or supposed’ title from the Original landlord. It
implies a continuity of the tenancy created by the original
landlord in favour of the tenant. It is in these
circumstances that the existing tenant, for the rest of the
period of his Tenancy, agrees to acknowledge the new
landlord as his landlord. Such an agreement of the tenant
amounts to attornment and by such an attornment the tenant
by his act substitutes the new landlord in place of the
previous one. Such attornment is complete the moment the
tenant agrees to acknowledge the new landlord to be his
landlord. Any future payment or non-payment of rent does
not affect the relationship created by the attornment. The
new landlord will have his remedies with respect to the
rents falling in arrears.
924
Again, it is stated in paragraph 745 at page 475 :
"With regard to the title of person from whom
the possession was not obtained, but who has
been recognised as landlord by the tenant,
such recognition may be by express agreement,
by attornment, or other formal acknowledgment
(as by paying a nominal sum of money), by
payment of rent, or of a. nominal sum as rent,
or by submission to a distress."
The attornment is here described as one mode of recognising
a person as one’s landlord, just as payment of rent is
another mode for the purpose. Expression to similar effect
is to be found in paragraphs 746, and also 747 where it is
further noted :
"But the tenant is not allowed to impeach the
title of a person to whom he has paid rent, or
whose title he has otherwise recognised,
without showing a better title in some other
person. Thus he cannot, after attorning to a
person who derives his title under a will,
contend merely that upon a true construction o
f
the will he had no title; nor can he, after
paving him rent, dispute his title merely on
the ground that the devise to him was void,
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owing to the incapacity of the testator."
In krisna Proshad Lal Singha Deo v. Baraboni Coal Concern
(1) the Privy Council said at page 318, when considering the
scope of S. 116 of the Indian Evidence Act:
"Whether during the currency of a term the
tenant by attornment to A who claims to have
the reversion, or the landlord by acceptance
of rent from B who claims to be entitled to
the term, is estopped from disputing the’
claim which he has once admitted,, we
important questions, but they are instances of
cases which are outside s. 116 altogether."
(1) (1937) L. R. 64 I. A. 311.
925
And again, at page 319
"In the ordinary case of a lease intended as a
present demise-which is the case before the
Board on this appeal-the section applies
against the lessee, any assignee of the term
and any sub-lessee or licencee. What all such
persons are precluded from denying is that the
lessor had a title at the date of the lease,
and there is no exception even for the case
where the lease itself discloses the defect of
title. The principle does not apply to
disentitle a tenant to dispute the derivative
title of one who claims to have since become
entitled to the reversion, though in such
cases there may be other grounds of estoppel,
e.g., by attornment, acceptance of rent etc.
In this sense it is true enough that the
principle only applies to the title of the
landlord who let the tenant in’ as distinct
from any other person claiming to be
reversioner."
These observations make it clear that simply by attornment
the tenant is estopped from questioning the derivative title
of the claimant’s successor just as the acceptance of rent
will create an estoppel against the landlord from denying
the person, who paid the rent, to be his tenant. These
observations do not indicate that any actual payment of rent
by the tenant who has attorned is necessary to make the
attornment effective. If it was otherwise, the new landlord
in whose favour the tenant has attorned, will not be able to
take successfully any action against that person till that
person had made the first payment of rent.
I am therefore of opinion that on co the tenant has agreed
to accept the person claiming title from the previous
landlord, that amounts to effective attornment in favour of
the landlord and- is no more dependent on the future conduct
of the tenant by way of payment of rent or otherwise.
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A person can establish his possessory title by establishing
that he had been in actual possession of the land in suit or
had been in possession through tenants. So long as the
persons in actual possession are deemed to be his tenants on
account of their conduct in recognising that person as their
landlord and are estopped to question his title, I see no
good reason why their possession be not taken to be, the
possession on behalf of that person, irrespective of the
fact whether that person bad legal title or not. If he had
legal title, no question of relying on possessory title
would ever arise. It is only in the case of his failure to
establish his legal title that he has to fall back upon
possessory title. I see no good reason why the possession
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of tenants who had attorned to a person having no title be
not considered to be his possession in determining whether
he had preferential possessory title to that of another, who
too has no title and secured possession of the land
subsequent to the attornment.
In this view of the matter, I am of opinion that the High
Court was wrong in asking for a fresh finding on the
question of possession when it bad not decided that the
tenants had not, in law, attorned to Seetharamiah and
Ramakotiah, on the basis of the two documents Kadapa Ex. D-
4 and Cowle Ex. D-5, and when according to the first
appellate court, the effect of those documents was that the
tenants had attorned to them.
I am, however, of opinion, though the point was not raised,
that the Kadapa Ex. D-4 is not an agreement by tenants
simply accepting the claimants to be the new landlords as,
by this document, they do not just substitute the new
landlords in the place of the old. They really took a new
lease from those two persons. The terms of the new lease
were different from those of the lease of Krishnavena The
unexpired period of the tenancy was two years. Under the
Kadapa, the new tenancy was to continue for five years from
June, 1933. The lease does not cover just the land which
they held under
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their previous tenancy, but included some other land as
well. The amount of rent they were to pay also differed.
It was much reduced. Such a document is not a deed of
attornment but is a document accepting fresh tenancy.
Seetharamiah and Ramakotiah could not in law lease the land
in suit to those tenants as they had no tit ,in themselves,
they being not heirs of Krishnavenamma. Any lease executed
by them created no right. These lessors were not in actual
possession of the land at any time. They could not have,
therefore, conveyed possession to their tenants. As the new
lesseess got no title under the lease, their continued
possession over the land in suit could not be possession
under the lease on behalf of the new lessors, especially
when their possession can be traced to the valid tenancy
under the deed, Ex. P-6, in favour of Krishnavenamma and
will be deemed to be on behalf of legal heir. Seetharamiah
and Ramakotiah, therefore, cannot be held to be in
possession of the land in suit through their tenants between
June, 1933, and some time in 1936, when those tenants were
dispossessed by Moka Subba Rao on behalf of plaintiff No. 1.
It follows that the predecessors-in-interest of the
defendants have been rightly held to be not in possession of
the land in suit prior to plaintiff No. 1, ’who too., had no
title, getting possession of the land in suit and that the
order under appeal is correct.
Appeal dismissed.
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