UPPALAPATIVEERA VENKATA SATYANARAYANARAJU AND ANOTHER versus JOSYULA HANUMAYAMMA AND ANOTHER

September 29,.

910 SU~REME COT:JRT REPORTS

UPPALAPATIVEERA VENKATA SATYANARAYANARAJU AND ANOTHER

JOSYULA HANU!lfAYAMMA AND ANOTHER (K. N. W.aNOHoo, IC C. D.as GUPTA, J.C. SHAH and RAGHUBAR DAYAL, JJ.)

Atlornmtnt-By tenant" in. favour of ptreons claiming but having no titl!.-.:::-How made-Payment of rent if tteceeaary-Finding of /Mt-Interference by High Court in second appeal.

In the prescn t suit for possession the courts found that none of the parties had legal title to the propcrfy in the dispute and in determining which of the parties had possessory iitle to the said property the trial court found th~t on the death of the daughter of the original owner the so called reversioners got Kodaha (Kabuliyat) executed in their favour by two tenants of the last possessor of the property and them-selves exe~uted CO\v]e in their favour but the said tenants did not pay an() rent to the so-called revcrsioners. The trial c,ourt held that though there was kadapa by which it might be said that the tenants \vho were there from before had attorned t6 the so~called rcversioners it \Vas 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 ~reyersioners 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 rtversioners and as the first appellate court did not cdnsider whether there \Vas real attornment by payment of rent sent back the case to the said court for fresh finding on that question whereupon that court returned 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 finding ofJact arrived at by the first appellate court and as the High Court 'indirectly reversed that finding of fact by calling for further finding on the question of possession the judgment of the High Court should be set aside.

Qeld (per K. N. Wanchoo, K. C. Das ,Gupta and T. C. Shah, JJ.) that if the so-called revcrsioners had title in ihe sense that they were the next revcrsioners, then attonnent by the'l(adapa would have been sufficient but where person in whose favour attornment had been made had no title, n1ere paper attornmcnt would not be sufficient unless there~ was rea\ attornment in the licnse that the person who attorncd so paid rent voluntarily or unrier decree to the

!Jll

3 S.C.R. SUPREME COURT REPORTS

person in \Vhosc favour the attornment was made. The first appellate court had merely considered the paper attorn-rnent and had not considered the evidence as tr> the payment of rent which \~as there and had been considered by the trial court. The High Court ""'.as, therefore, Ju_~tified in calling for finding on question which was not considered by the lower appellate court.

Per Raglmbar Dayal, J .-Once tenant agreed to accept the person claiming title fron1 the previous landlord, that amounted to attornment in favour of the ne\v landlord and was no more dependent on the future conduct of the tenant by way of payment of rent or otherwise.

Krishna }.Jrasad Lal Singha Deo v. Baraboni Coal ()oncern, (1937) L.R. 64 I. A. 3ll, referred to.

There was no good reason why the possession of tenants \vho had attorned to 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 closclv scrutinised or in other \Vords, not scrutinised in manner i;1 which the second appellate court des.ired it to be scrutinised, could not be ground for interference ,,,.ith finding of fact in second appeal.

In the present case the Kadapa the terms of which were different from those of the old one, \Vas not deed of attorn-ment merely substituting the new landlord in place of the old but was document accepting fresh tenancy but as the new lessors had no title to the property the lease executed by the created no right.

CIVIL ArPELLA'l'E Jum~DlC'l'IUN: Civil Appeal No. 459 of l!J58.

Appeal by special leave from the judgment antl decree dated June :2!l, 1955, of the former Andhra High Court in Second Appe il No. 730 of 1949.

A. V. Viswanatha Sastri and '1'. V. R. Tatachari, for the appellants.

K. Bhimasankaram and G. Gopafokrishnan,

for the respondents.

l!J61. September 29.

The judgment of

Wanchoo, Das Gupta and Shah, JJ., was delivered' by Wanchoo, J .. Dayal J., delivered separate judgment.

1P61 Uppalapali Veera VenJ:ata Sa(Yanarayanaraju v, Jo3yula llanuma;·amma

Uf11Mlapa1i Vtua Vtnka1a S~rcnarayanaraju v. ,1Qsy6'ia ll«n~'"7lma Wano\oo J.

!J 12 SUPRE~IE OOURT REPORTS

[l!J62)

'VA}ICUOO, J.-This is an appoal by special loave from the judgment and decree of tho Madraa High Court. Tho appellants wero defendants in suit brought by the rnspondents for posseBSion of certain properties whi"h originally belonged to one Subbarayudu. The case of the rcspoudents wa.a that Subbaro.yudu executed will dated September 15, 1885. Under that will tho property pa.ssed on his death to his wife with life interest and after her death absolutely to his <laughter Krislmavenam· ma who was in enjoyment thereof till her death in l!l33. The daughter executed will on March 24, 1933, in favaur of her step son Nagaraju who came into possession of tho property on her death soon after. Nagaraju in his turn executed will on August 16, 1933, by which he gave life interest to his wife who was the first plaintiff (now the first respondent bofore us) and thereafter the property was bequeathed absolutely to his daughiere. Tho second respondent 1s tho tenant of the first repondent. Nagaraju died sorm after eiwcuting tho will and tho 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 I !J43 by the appellants who claimed to be the purchasers of the property from Scotarnmayya and Ramakotayya who in their turn claimed to be tho reversioners <if Subbarayudu. Consequently, the suit out of which the present appeal has arisen was filed m June, 1944, for posseBBion and mesne profits.

The suit wa.a resisted by the appellants, 11nd their ease was that they had purchased tho property from the revcrsioners of Subbarayudu in 1942. It was further contended on their behalf that on tho death of Kriehnavenamrua the reversioner& came into posseBSion of tho property through tho tenants who had been in poBBession from before undor a. ]tjase grante<l to them by Kr.ish~yenamma. The~ tcnanUl remained in poss08810n till tho sale dee<l m favour of tho appellants and attorned to the

..-----. .

3S.C.R. SUPREME COURT REPORTS

appellants thereafter. Later the two tenants surrendered possession to the appellants who thus came into actual possession of the property in suit. The 9ppella.nts also contended that the so-called will executed by Subbarayudu was forgery and the first respondent had no title to the property. On these pleadings, tbe 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 h-.ve been executed by Subbarayudu was not proved. In con~equence 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 legal title. Further it found that it was not established that Seetaramayya and Rmnakotayya 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 Krishna-venamma, the name of the first respondent w:is 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 kind of race between respondent No. 1 and Seetaramayya and Ramakot-ayya 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, kadapa from the two tenants for five years

Uppalapati Vura Vimkata SatyanartfPQllaraju v. Jcsyula • Hanumayamma Wanchoo J.

L-'p/Jtl/apati Vttr11 Venkata S•tya11arayanarajll V. Josyula Jlanuma;·um,na II ancho• J.

ending with May, l!J38. They also !'Xecuted & CO'll'le in favour of the tenants anrl both these docu-ments wero registered in July, 19:l3. But the find-ing of the trial court was that there was no pay-ment of rents in the year; 1933 and 193 ! and that the real fight for the land started towards the end of 1035 or the beginning of 1936 and a,lthough documents were taken from the tenants by tho so· called re.-ersioners no actual payment of rent was made to them. It al8o held that in this game of winniug tho favour of tho tenants the real gainers were the tenants who paid no rent to either tho first rCllpondent or the so.railed rcvcrsioncrs. The trial court further hrlcl that it was in HJ3G that the first respondent managed to dispossess tho tenants forcibly through her tenant Aloka Subbarao who seems to have been person of some infiuenoe in the village. Thereafter the first re~pon<lent re-mained in poBBession through her tenant till bhe was dispossessed in November, lU-13, forcibly by the present appellants after they had purchased the lands from tho so-called reversioncrs. In effect, thorefore, the finding of the trial court was that neither party was in possession of the property up to 1936 and it was onlv in 1936 that the first respondent camo int" possession through l\1ok11. Suhbarao by dispossessing the tenants \vho were holding the land from the time of Krishnavenamma ancl had paid no rent to anyborly after her death. In consequence tho trial court held that as the possession of the first respondent was earlier she was entitled to sucl'ccd at least on the ground of possessory title. Incidentally it also held that although the title of the first rospondent was defec-ti \·c for the reason that Krishnavenamma did not hav<' ab~olute right in the property it "·as not void but was only voirlalile at the instance of the nearest reversioner or some one else having better title, which the appellants or their predece86orH· in-interest did not have. In the rcault the suit was decreed with mesne profits.

3S.C.R. SUPREME COURT REPORTS

This was followed by an appeal to the Subordinate Judge by the present appellants. We have already said that the Subordinate ,Judge up-held 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 t!ie 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 tho 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 consider-ed by the trial court, namely, whether after the execution of the Kadapa and the cowle the so-called reversioners over collected rents from the tenants who were there from the time of Krishna· venamma between 1933 and 1936. This question had been specifically considered by the trial court and it had come to the conclusion that t,hough the kadapa and the wwle had been executed they were mere paper transactions and the so-called rever-sioners 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

Uppalapati Veera Venkatri Satyanaray:maraj 11 v. Josyula !JanwnaJ•amma U'anclu10 J.

VH•lapati Yt,,.o V.mkalo SS{!CMT~.ran.oroju v. JoJpl« Ha~mmo IV an<hoo ].

916 SUPREME OOURT REPORTS [1962]

suit on tho view taken Ly him that the so-called rcvorsioncrs had como into possession t of tho property after tho death of Krishnavenamma end wero forcibly ejected in 1!)36 by l\foka Subbarao as the tenant of the first respondent.

This was followed by sccrmrl appeal Ly tho respondent:<>. The High Court took the view that the finding of the Subordinate Judge that the BO· called rcveraioners were in possession from 1933 to 1930, could not be accepted .. According to the High Court, the main question was whether the tena· nts who were there from before really attomed tot.ho roversioners. The High Court then went into som o of the evidence and hold that various matters which should have received the ntt{'ntion of tho Subordinate ,Judge in coming to conclusion on this import.ant point of fact wcro not considered hy him; therefore it \Vas not prepared to accept tho finding of the Subordinate ,Judge in second appeal and requircrl the Subordinate Judge to submit fresh finding on this question. When the matter went baok to the Subordinate Judge he <'Xamincd the <'ntirc evidence and came to tho conclusion that the so-called roversionors in order to create evidence of possession had taken the kadapa from the tenants after winning them over to their ~ide, perhaps by promise not to collect rent from them. He also came to tho conclusion that the so-called revcrsioners were not in posses;;ion of the property after the death of Krishnavenamma from l!J33 to 193() and that it appean·d that during that period neither party was in possession and only the tenants who were there from the time of Krishnavenamma continued to be in posseSHion but without paying rent to anybody. Ho further hold that in the circum-stanceH the possession of the tenants could only be treated as that of the rightful owner which neither party was in this case. Finally he camo to the conclusion that it was for the firat timo in 1936 that Moka Subbarao took possession of the

3 S.C.R. SUPREME COURT REPORTS

land as the tenant of the first respondent and the appellants got possession for the first time in l 94 3. 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 th11 order of the trial court restored. The appellants have come to this Court by special leave.

The main contention urged beforl'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 in-directly reversed that finding by calling for 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 finding looks as if it was interfering with finding of fact as to possession, 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 th~ 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 finding in the matter. It is urged that where the case is based on possessory title only, 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 kadapa by which, it may be said, the tenants who were there from before had attorned to the so-called reversioners, that was 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 res-pondents, this finding of the trial court should have been specifically considered by the Subordinate

Uppalapati Veer• V1nkala Saryanarayanaraju v. Josyula Hanuma_:vammo fVa nchoo J.

11141 UpPolapali Vur• Ynsk«ta Sa(Yan'1ra.1a11araju v. Joryuia llani"n~rmnma

[l!l62)

Judge; buta.11 that the Subordinate Judge did was to rely on the karhpa and hold on the basis of that document that the so-oa.llod rcvcrsioners had come into possos.~ion poacefu\ly. It is said that "1.vhatover may be Raid about tho viiluo of attorn-lhont ma<lo in favour of the true owner the pnsition is different where attornment is in favour of person who is not tho true owner. In such n. r,ase beforp tho person in whose favour an attorn-mcnt has been made can establish that his posscsHion was offel'.tive it must al~o bo shown tha.t he was pair! rent by the tonants who a.ttorned to him. Therefore, it is urged that as thoro was no finding by tho Suhoridnatc Judge on this crucial question the High Court m1.s justified in sending the case back to the Subordinate ,Judge for findin!! in this regarcl. As RUch, it is urged that this is not Cl\se where tho High Court lmd rovera-cd finding of fact by tho first a.ppellate court which it is admitted it lrns no jurisdiction to do; but it is oase whP-re there waA no finding on tho crucial qm•stion of fact by the Subordinate Judgo and tho High Court therefore had jurisdiction to call for finding in this roga.rd.\Vo arc of opinion that though on first rcaclin~ of the High Court judgmf'nt calling for finding it does look as if tho High Court was rever-sing the finding of fact as to possession when it calletl for further finding on the qnostion, a. closer examination of its judgment calling for a. findin)l 11.long with the findings by the lllunsif and the . Su bor<linatc .Judge on tho crucial question involrncl in this case shows that it held that there was no finding by the Suhordinate Judge on that crucial question, though the trial court had given finding in favour of the first respondent in that respect. As both partios were rolying on posaes-ory title, it was m1cessary that they should prove effective possflssion over the property in order to suecocd on the bMis of pos.~esaory title. By effective possession we mean either actual possession or

possession through tenant who must have paid rent voluntarily or under decree to the person claim-ing possessory title. The kadapa by the previously existing tenants in favour of the so-called reversioners has all along been treated as an attorn-ment by all the three courts and we therefore accept it as such. 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 to establish their possession over the property; but where the person in whose favour the attornment had been made has no title, 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 decree to the person in whose favour he made the attornmont. The fact that the tenants who had executed the kadapa may be estopped from challenging the title of the so-c3lled reversioners, if 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 anvone bv the tenants; further no suit had been bro.ught by the so-ralled reversioners to recover the rent before the first respondent got into possession. The kadapa therefore remained 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 he 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 attorn-ed to the reversioners". We emphasise the word "really" which shows that the High Court was not satisfied with mere paper attornment which was all

Uppal~li Vttra Venkata Sat_;•anara)ianarajll

J rryu[a lianumayamma Jt'anchoo J.

1961 UP/Hfla/>«li Vt~r• v...w. S.tyciat.t)'O•'•}U v. Josyu/• 11--W.whoo I.

..... _

3 s.c.R. SUPREME COURT REPORTS

consideration of the entire evidence. This in our opinion the High Court was justified in doing be-cause 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 kadapa was mere paper transaction. In these circumstances it cannot be said that the High Court had no jurisdiction to call for finding.

It is not disputed that if the High Court had jurisdiction to call for 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 eosts of this Court. RAGHUBAR DAYAL, J.-I agree that the appeal be dismissed, but for different reasons.

If Narasimhulu and Ramudn alia.s 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 predeces-sors-in-interest of the defendants-appellants were in possession through their tenants over the land in suit, w:i.s correct. Tho High Court did not decide by its first order remitting the point No. 2, viz., 'whether the plaintiffs got into possession of the 1mit 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 fresh finding that the attornment by the execution of the deed of Kadapa was not good attormnent without the executants paying rent to Ramakotiah and Seetha-ramiah. The learned Judge simply said :

Uppalapati Vura Venkata Satyana1ayanaraju v. Josvula Hanmfiayamma

Ra1hubar D.,al J.

L'ppalapati Vura Vmkata Sa(yonorayanaraju v. Josytda Ilanumayammo

Rt1thu6tzr /)ayaJ J.

"Apa.rt from the question whother the principle of law adopted by tho learned Judge iR well.founded or not, on which I express no opinion 11.t present, it seems to mo that the finding of the learned J udgo that the first defendant had prior possession from 1!)~3 to 1936 cannot be accepted in second appeal."

'fhe finding about tho prior po.qscssion, of the learn-ed Subordinate Judge ww not accepted by the High Court because it considered that the Subordinate ,Judge had not closely scrutinized the cvidPnco in the case on tho very crucial question in issue between the parties. This crucial question wM for-inulat.e<l as 'whether the tenants really attorned to the reversioners and tho re,·ersioners recognized the pnssession of the tenants as theirs.' \Vhat wa11 moant by the High Court from this question, is not clear to me. If the oxccution of tho deed, Ex. D-4, amounted to the attornment by the tenants in favour of Seetharamiah and Ramakotiah, who claimed to be tho heirs of Krishnavenamma, and the execution of the cowlo, Ex. D-5, by those two persons in favour of the tenants, to the recognition of tho tonant!! as their tenants, no further question of scrutiny of any other evidl'nce on record could have arisen. Tho other evidence on record about which tho High Court expressed its opinion, and thnt too not iu final form, as fre8h finding was being called on the basis of that ovidenc1~. mainly con8ist-e<l of the evidence in favour of the defendants. Non-con8ideration of that evidence could havo beon grievanco to the clcfcndants, but not to tho plaintiff~­appellants before tho High Court. Expression of opinion in that form on such evidence was detrimen-tal to tho interest of tho defendant in frosh con-eidoration of that evidenco bv the Subordinate Judge, who, naturally, in his frosh finding, follO\ved practically similar line of <:riticism against that evidence. The mere fact that certain e'·idoncc had not been closely scrutinized or, in other words, not scrutinized in & m&nner in which the 1econcl

3 S.C.R.

·-tppellate Court desires it to be scrutinized, cannot be ground for interference with the finding of fact in the second appeal. If the High Court considered, as 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 Krishnavenamma, there was no valid attornment, tho order for fresh fiinding rt bout attornrnent could be justified on the ground that the Subordinate Judge had not referred to the evidence having bearing on the question of the payment of rent by the tenants ancl its receipt by the new landlords Seetharamiah and Ramakotiah. I however find it difficult to put such construction on the High Court's order when it did not decide upon the princi-ple of law adopted by the first appellate Court.

"Attornment, in its strict sense, is an agree-ment of the tenant to grant of the reversion made by the landlord to another, or, as it has been de-fined, 'the act of the tenants putting one person in the place of another as his landlord" -see para-graph 732, l!'oa'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 continuity of tho 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 attornmont tho tenant by his act substitutes the new landlord in place of the previous one. Such attornment is complete tho moment the tenant agrees to acknow-ledge 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 ha vo his remedies with respect to the rents falling in arrears.

Uppalapati Vt1era Vtnkata Salj'anarayanaraju v. J1syula Hanumayamma Raghubar Dayal .J.

1961 Upp.Jt1.pali Veera Vrllk4la Saly.nM(f/d11ataju v • .J osy·tla I lanum.panvna Razltuhar Dayal .l.

Agnin, it is stated in paragraph 745 at page

"With regard to the title of person from·

whom the possession waa not obtained, but who has been recognised as lamllord by the tenant, such recognition may Le by cxpr08S agreement, by attornment, or other forinal acknowledgment (as Ly paying nominal ~um of money), by payment of ront, or of 11, nomi-nal sum aa rent, or by su bruission to a. distress."

Tho attornment is here described a,; one mode of recognising person as one's landlord, just as pay-ment •Jf rnnt is another modo for the purpose. Expression to similar effect is to be found in para-graphs /4G, and also 74i whllro it is further noted:

"But the tenant is not allowed to impeach

the title of person to whom ho bas paid rent, or whose title he has otherwill-0 recognised, without showing better title in aomo other person. Thus he cannot, after attorning to porBon who deri'rns his title under will, contend merely that upon tru•J construction of the will he had no title; nor can he, after paying him rent, dispute his title merely on tbe ground that the devise to him was void, owing to the incapacity of the testator."

In ]( risna Proa had Lal Singh.a Dco v. Bara/Joni Coal Concern(') tho Privy Council said at page 318, when considering tho seopo of s. ll6 of tho Indian Evidonco Act :

''Whether during the currency of a.

the tenant by attornrucnt to who claims to ha.vo the reversion, or the landlord by acoop-tancc of rent from lJ who claim3 to be entitled to the term, is estopped from disputing the daim which he has onco admitted, are important questions, but they are instances of cases which are outside s. ll6 altogether."

(11 (1937) L.R.64 I.A.311.

3 S.C.R.

And 11gain, at page 319 :

"In the ordinary case of lease intended as present demise-which is the rase 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 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 disentitlo 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 estoppe!, e.g., by attornment, acceptance of rent eto. In this !ense 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 question· ing 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 tho first payment of rent.

I am therefore of opinion that once the tenant ha11 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.

Uppalapati V ura V.mkata Sa!J'•narayanarqju v. Josyula Hanumayamma Raghubar Dayal J.

J!!bl Up~alaposi i ·euo Vtnkata S o/)'4110' 0.14110' ju v. Josyula }fatrUf1J.4.J01111110 Razludar Do;oal J.

[ll)t12] .

person can establish his pusselS!lory titlo by cst.<i.blishing that he had been iu 11ctual po88cssion of tho Janel in sait or had been in posRession through tenants. So long a.s the persons in actual possession are deemed to be his tenants on account of their conduct in recognising that porson as their landlord 11.nd arc estoppod to question his titlt>, I see no good reason why their possession be not t.akcn to be tho possession on behalf of that person, irrespective of the fact whether that person had k1:al title or not. If he had legal title, no question of relying on posscssory title would c\·er arise. It is only in the ca:;o of his failure tu establish his legal Litle that. lw has to fall back upon possessory title. I see no good reason why the possossion of tenants who h1d attorned to person h.iYing uo title be not considered tu be his possession in determining whether he Imel preforential po:lllessory title to that of a11other, who too has no title and secured possession of the land subsoque11t to the atturnment.

In this view of the matter, I am of opinion that the High Court was wrong in asking for fresh finding ou the question of possession 1rhc·n it had not decided thll.t the tenants had not, in law, attorned to So<!tharnmiah and B.amakut;ah, on the basi8 of the two elocumcnts Kadapa Ex. D.4 and CCJ\rle Ex. D-5, am! whon according t.o tho first app~llate court, the effect of those docmnents was that the tenants had attorned to them.

I am, however, of opinion, though the point wao not raised, that tho Kaela.pa Ex. D·4 is not an agreement by tenants simply 1iccepting the claimants to bu tbe nuw landlords as, by this document, they do not j1rnt substitute the new landlords in the place of the old. Thoy really took new leMe from those two persons. The terms of the new lease wore diffon•nt from those of the lease of Krishna\•onamm11.. The unexpired period of the tenancy was two years. C'nder the Kaelapa, the now tcnaney \Va.B to continue for fivo year;; from June, l!l33. The lease eloes not cover just the land which they held undot

3 S.C.R.

SUPREME OOUBT REPORTS

their previous tenancy, but included some other fond as well. The amount of rent they were to pay also differed. It was much reduced. Such docu· ment is not dPed of attornment but is document. accepting fresh tenancy. Seetharamiah and Bamakotiah could not in law lease the land in suit to those tenants as they had no title 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, thcreforti, conveyed possession to their tenants. As the new lessees got no title under the lease, their continued possession over the land in s11it could not be possession under the lease on behalf of tho 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 he 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 dis-possessed by Moka Suhba Rao on behalf of plaiptiff ' No. 1. It follows that the predecessors-in-interest of the defendants have been rightly held to be not in poflsession 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 und"lr appeal is correct.

Appeal dismissed •

Uppalapati Vura Venkcta S alya1iarqyansraju v. ]oayula Hanumayamma