Appeal No 459 of 1958
Appeal by special leave from the judgment and decree dated June 291955 of the former Andhra High Court in Second Appeal No 730 of 1949
AV Viswanatha Sastri and P V R Tatachari for the appellants
K Bhimasankaram and G Gopalakrishanan for the respondents
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 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 913 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 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 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 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 suchthe 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 fora 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
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 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 exhibit P 6 dated May 6 1929 for six years from Josyula Krishnavenamma had attorned to Ramakotiah and Seetharamiah by executing the Kadapa Kabuliat exhibit 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 exhibit 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 exhibit 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 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 owing to the incapacity of the testator
 In krisna Proshad Lal Singha Deo vs Baraboni Coal Concern 1 the Privy Council said at page 318 when considering the scope of section 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 section 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 eg 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
926 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 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 exhibit D 4 and Cowle exhibit 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 exhibit 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 927 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 exhibit 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


Summary:
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 thatthough there was a kadapa by which it might be said that the tenants who were there from before had attorned to the so calledreversioners 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 wasreal attornment by payment Of rent sent back the case to the said court for a fresh findingon 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 KC Das Gupta and KJC Shah JJ 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 vs 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