Uppalapati Veera
Venkatasatyanarayanaraju and, Another Vs. Josyula Hanumayamma & ANR J. C.
Shah [1961] INSC 292 (29 September 1961)
29/09/1961 WANCHOO, K.N.
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 attorney 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.) 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.
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 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 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.
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, 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 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 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.
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 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
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, 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 sometime
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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