Civil Appeal No 2223 of 1987
From the Judgment and order dated 2181986 of the Andhra Pradesh High Court in CRP No 1518 of 1985
AK Ganguli and A Mariarputham for the Appellant
G Narasimhulu for the Respondent
The Judgment of the Court was delivered by SEN J
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 102vi of the Andhra Pradesh Buildings Lease Rent 148  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 ie the person having title paramount
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 PRN Upadhyaya on March 9 1977
Admittedly the main premises ie the building was demised by Krishnamurthy to the said PRN Upadhyaya in the year 1972 and in course 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 ie 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 Rs300 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 wef 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 102i and vi and 103biii of the Act ie 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 102i and vi holding that the premises in question was a building within section 2iii 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 of the High Court mainly rests on the rule of estoppel
149 The appeal must be allowed on the short ground that there being a threat of eviction by a person claiming title paramount ie 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 ie 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
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 Kumar vs Desraj Ranjit Singh ILR 1915 37 All 557 PC and Atyam Veerraju  Ors
vs Pechetti Venkanna  ors 19661 1 SCR 83 1
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 vs Baraboni Coal Concern Limited  orS 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 150 title of the landlord came to an end or that he was evicted by a 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 attorns 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 ejecment
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 Chatak vs Krishna Prasad Singh  Anr AIR 1949 PC 124
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 jural 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 para mount 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 attorns 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  Anr
vs Sardar Meharban Singh  ors
  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 vs Fazal Hussain  Ors AIR 1963 MP 232 KSM Guruswamy Nadar vs NG Ranganathan AIR 1954 Mad
151 402 SAA Annamalai Chettiar vs Molaiyan  Ors AIR 1970 Mad
396 and Chidambara Vinayagar Devasthanam vs Duraiswamy ILR 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 102i and vi of the Act by relying on the rule of estoppel embodied in section 116 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 102i 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 lessor Krishnamurthy after the attornment of the tenancy to him
The terms of section 102i 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 bona fide
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
 The High Court failed to appreciate that there could be no order of termination in terms of section 102i unless it could be said that in the facts and circumstances of the case the dispute as to title was not bona fide
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 estop 152 pel 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 102i and vi of the Act is not sustainable in law
In the result the appeal succeeds and is allowed
The proceedings for eviction of the appellant from the demised premises under section 102i and vi and 103biii of the Andhra Pradesh Buildings Lease Rent and Eviction Control Act 1960 are quashed
No costs
PSS Appeal allowed


Summary:
The appellant was a sub tenant of the tenant respondent
The landlord served a notice of eviction on him in November 1980 alleging that there was unlawful subletting by the respondent and that he had decided to terminate the tenancy with the expiry of that month
The appellant thereupon attorned in favour of the landlord agreeing to pay him the rent
After becoming the direct tenant the appellant stopped paying rent to the respondent
The respondent asserting to be the lessor commenced proceedings for eviction of the appellant under section 102i and vi and section 103biii of the Andhra Pradesh Buildings Lease Rent and Eviction Act 1960 on the ground that the appellant was in wilful default in payment of rent that there was denial of title on appellant s part and that he required the premises bona fide for his use
F The Rent Controller disallowed the application on the ground that the respondent not being a lessor had no locus standi to initiate the proceedings for eviction
The first appellate court however directed eviction of the appellant under section 102i and vi holding that in view of the denial of respondent s title as well as non payment of rent the appellant was estopped from denying the title
The High Court having upheld this view the appellant appealed to this Court by special leave
Allowing the appeal  HELD 1
There could be no order of termination in terms of section H 146 102i of the Andhra Pradesh Buildings Lease Rent and Eviction Control Act unless it could be said that in the facts and circumstances of the case the dispute as to title was not bona fide
In the instant case there is no such finding by the High Court
Furthermore the appellant could not be treated to be in arrears of rent since he has been paying rent to the head lessor
Therefore the order of eviction passed against the appellant under section 102i and vi of the Act is not sustainable in law
151G 152B 21 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 at the commencement of the tenancy 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
The words during the continuation of the tenancy  occurring in section 116 of the Evidence Act mean during the continuance of the possession that was received under the tenancy in question
 The rule of estoppel is thus restricted not only in extent but also in time ie restricted to the title of the landlord and during the continuance of the tenancy
149E F C D 22 The general rule of estoppel under section 116 is however subject to certain exceptions in that a tenant is not precluded from denying the derivative title of the persons claiming through the landlord
Similarly such estoppel is restricted to the denial of the title at the commencement of the tenancy it is open to the tenant even without surrendering possession to show that since the date of 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
149G H 150A B 23 In order to constitute eviction by title paramount it is not necessary that the tenant should be dispossessed or even that there should be a suit of ejectment against him
It will be sufficient if there was threat of eviction and if the tenant as a result of such threat attorns 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 147 Act
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 jural relationship of landlord and tenant as between them
150B D In the instant case having regard to the fact that the appellant was under threat of eviction by the title paramount it cannot be said 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 after being served with the notice of eviction attorned to the head lessor there came into existence a direct tenancy
151H 152A B Bilas Kunwar vs Desraj Ranjit Singh ILR 1915 All
557 PC Atyam Veerraju  ors
vs Pechetti Venkanna  Ors   Kumar Krishna Prosad Lal Singha Deo vs Baraboni Coal Concern Limited  ors  Adyanath Ghatak vs Krishna Prasad Singh  Anr AIR 1949 PC 124 27Halsbury s Laws of England 4th Edn pars 238 Mangat Ram  Anr
vs Sardar Meharban Singh  ors
  Fide Hussain vs Fazal Hussain  ors
 AIR 1963 MP 232 KSM Curuswamy Nadar vs NG Ranganathan AIR 1954 Mad 402 SAA Annamalai Chettiar vs Molaiyan  ors
 AIR 1970 Mad 396 and Chidambara Vinayagar Devasthanam vs Duraiswamy ILR  referred to