Holding

The rule of estoppel under s.116 Evidence Act does not bar the appellant from contesting the landlord's title when he has attorned to a title‑paramount holder under threat of eviction, and the eviction order under s.10(2)(i) and (vi) is therefore invalid.

Summary

The appellant, a sub‑tenant, was originally paying rent to the respondent, a tenant, but after receiving an eviction notice from the head lessor (title paramount) he attorned to the head lessor and began paying rent to him, ceasing payments to the respondent. The respondent filed eviction proceedings under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 alleging willful rent default, denial of title and lack of bona‑fide requirement. Lower courts held the appellant estopped under section 116 of the Evidence Act from disputing the landlord's title and ordered eviction; the High Court affirmed. The Supreme Court examined whether the estoppel rule applied when the tenant was under threat of eviction by a title‑paramount holder and had attorned to that holder, and whether the dispute over title was bona‑fide. It held that the estoppel under s.116 does not apply in such circumstances, the appellant was not in arrears as he paid rent to the head lessor, and there was no finding that the title dispute was not bona‑fide. Consequently, the eviction order was unsustainable. The appeal was allowed and the eviction proceedings were quashed.

Issues considered

Whether a sub‑tenant is estopped under s.116 of the Evidence Act from denying the landlord's title when he has attorned to a title‑paramount holder under threat of eviction.
Whether the eviction provisions of s.10(2)(i) and (vi) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 are applicable where the dispute over title is bona‑fide and the tenant is not in arrears of rent.

Legislation cited

Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960s. 10(2)(i), s. 10(2)(vi), s. 10(3)(b)(iii)
Indian Evidence Act, 1872s. 116

Subjects

evictionsub‑tenantestoppelEvidence Act s.116Andhra Pradesh Buildings Acttitle paramountattornmentrent defaultlandlord‑tenant law

Judgment

D. SATYANARAYANA
v. A
P. JAGADISH

SEPTEMBER 15, 1987.

[A.P. SEN AND B.C. RAY, JJ.] B

Andhra Pradesh Buildings (Lease, Rent and Eviction) Control
'f Act, 1%0: s. 10(2)(i) & (vi)-Sub-tenant-Eviction of by tenant-No
finding regarding bona [ides of dispute as to title-Sub-tenant attorns to
.- and paying rent to the landlord-Order of eviction-Validity of

Evidence Act; 1872: s. 116-Rule of estoppel-sub-tenant under C
)• threat of eviction by title paramount-Attorns to landlord-Whether
estopped frorn denying tenant's title in eviction proceedings by tenant.

The appellant was a sub•tenant of the tenant-respondent. The
landlotd served a nodce of eviction on him in November, 1980 alleging D
that there was unlawful subletting by the respondent and that be had
decided to terminate the tenancy with the expiry of that month. The
appellant thereupon attorlied in favour of the landlord agreeing to pay
him the rent. Aller becoming the direct tenant, the appellant stopped
paying rent to the telljli>ndent.
' E
The respondent asserting to be the lessor commenced proceedings
for eviction of the appellant under s. 10(2)(i) and (vi) ands. 10(3)(b)(iii)
of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Act, 1960
• on lbe ground that the appellant was in wilful default in payment of
rent, that there was denial of title on appellant's part, and that he
required the premises bona fide for his use. F
I
\ The Rent Controller disallowed the application 011 the ground that
the respondent not being a lessor had no locus standi to initiate the
proceedings ·for eviction. The first appellate court, however, directed
eviction of the appellant under s. 10(2)(i) and (vi), holding that In view
of the denial of respondent's title as well as non-payment of rent, the G
appellant was estopped from denying the title. The High Court having
upheld this view, the appellant appealed to this Court by special leave,

Allowing the appeal,

HELD: J. There could be no order of termination in terms of s. H
145
146 SUPREME COURT REPORTS [1988] I S.C.R.

A l0(2)(i) of the Andhra Pradesh Buildings (Lea~e, Rent and Eviction)
Control Act unless it could.be said that in the facts and circumstances of /-t-
the case the dispute as to title was not bona fide. In the instant case,
there is no such rmding by the High Court. Furthermore, the appellant
could not be treated to be in arrears of rent since he has been paying
rent to the head lessor. Therefore, the order of eviction passed against
B the appeDant under s. l0(2)(i) and (vi) of the Act is not sustainable in
law. [151G; 152B]

2.1 The rule of estoppel embodied under s. 116 of the Evidence '(
Act is that a tenant who has been let into possession cannot deny his
landlord's title at the commencement of the tenancy, however, defec·
C live it may be, so long as he has not openly restored possession by
surrender to his landlord. During the continuance of the tenancy, the
tenant cannot acquire by prescription a permanent right of occupancy
in derogation of the landlord's title by mere assertion of such a right to
the knowledge of the landlord. The words 'during the continuation of
the tenancy' occurring ins. 116 of the Evidence Act mean "during the
D continuance of the possession that was received under the tenancy in
question." The rule of estoppel is thus restricted not only in extent .but
also in time, i.e., restricted to the title of the landlord and during the
continuance of the tenancy. [149E·F; C·Dl

2.2 The general rule of estoppel under s. 116 is, however, subject
E to certain exceptions, in that, a tenant is not preclnded from denying )- .
the derivative title of the persons claiming through the landlord. Simi·
larly, such estoppel is restricted to the denial of the title at the comm-
encement of the tenancy, it is open to the tenant even without sur-
rendering possession to show that since the date of tenancy the title or .,
the landlord came to an end or that he was evicted by a paramount title
F holder or that even though there was no actual eviction or dispossession
from the property, under a threat of eviction he had attorned to the f-
paramount title-holder. [149G-H; lSOA-B)

2.3 In order to constitute eviction by title paramount it Is not
necessary that the tenant should be dispossessed or even that there
G should be a suit of ejectment against him. It will be sufficient if there
was threat of eviction and if the tenant as a result of such threat attorns
to the real owner, he can set up such eviction by way of defence either to
an action for rent or to a suit in ejectment. If the tenant, however, gives
up possession voluntarily to the title-holder' he cannot claim the benefit
of this rule. When the tenancy has been determined by eviction by title
r
H paramount, no question of estoppel arises under s. 116 of the Evidence
D. SATYANARAYANA v. P. JAGADISH (SEN, J.] 147

Act. The principle must equally apply when the tenant has attorned A
+ under a threat of eviction by the title paramount and there comes into
existence a new jural relationship of landlord and tenant as between
them. [lSOB-D I

In the instant case, having regard to the fact that the appellant
was under threat of eviction by the title paramount, it cannot be said B
that the rule of estoppel under s. 116 of the Evidence Act applied and
y, therefore, he was not entitled to dispute the title of the respondent.
Furthermore, the appellant having, after being served with the notice of
eviction, attorned to the head lessor, there caine into existence a direct
tenancy. (1S1H; 152A-B]

Bi/as Kun war v. Desraj Ranjit Singh, ILR (1915) All. 557 (PC); C
Atyam Veerraju & Ors. v. Pechetti Venkanna & Ors., [1%6) 1 SCR
831; Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern
Limited & Ors., AIR 1937 PC 251; Adyanath Ghatak v. Krishna
Prasad Singh & Anr., AIR (1949) PC 124; 27Halsbury's Laws of
England, 4th Edn., para 238; Mangat Ram & Anr. v. Sardar Meharban D
Singh & Ors., [1987] 1 Scale 964, Fide Hussain v. Fazal Hussain &
Ors., AIR (1963) MP 232; K.S.M. Guruswamy Ntidar v. N.G.
Ranganathan, AIR (1954) Mad, 402; S.A.A. Annamalai Chettiar v.
Molaiyan & Ors., AIR (1970) Mad. 396 and Chidambara Vinayagar
Devasthanam v. Duraiswamy, ILR (1967) 1 Mad. 624, referred to.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2223
of 1987.

From the Judgment and Order dated 21.8.1986 of the Andhra
Pradesh High Court in C.R.P. No. 1518 of 1985.
/ F
A.K. Ganguli and A. Mariarputham for the Appellant.
\ G. Narasimhulu for the Respondent.

The Judgment of the Court was delivered by
G
SEN, J. This appeal by special leave brought from the judgment
and order of the High Court of Andhra Pradesh dated August 21, 1986
.. -i raises a question of general importance. The High Court has upheld
the judgment of the Chief Judge, City Small Causes Court dated April
29, 1985 directing the eviction of the appellant from the demised pre-
mises under s. 10(2)(vi) of the Andhra Pradesh Buildings (Lease, Rent H
148 SUPREME COURT REPORTS (1988) 1 S.C.R.

A & Eviction) Control Act, 1960. The question is whether the appellant
was estopped from denying the title of the lessor under s. 116 of the
Evidence Act, 1872 despite the fact that there was threat of eviction by
the owner of the demised premises one Krishnamurthy i.e. the person
having title paramount.

B There is no material point of fact which is now in dispute. The
demised premises which is a removable wooden cabin or kiosk located
· at one comer of a building belonging to one Krishnamurthy was let out
on a rent of Rs. 6 per day which later was increased to Rs.10, by the
respondent P. Jagadish, son of the original tenant P.R.N. Upadhyaya
on March 9, 1977. Admittedly, the main premises i.e. the building was
demised by Krishnamurthy to the said P.R.N. Upadhyaya in the year
C 1972 and in course of time he had sublet different portions of the
premises to different persons. By a notice dated November 8, 1980 the
head lessor Krishnamurthy served a notice of eviction on the appellant
and other sub-tenants alleging that there was unlawful subletting by
the lessee and that he had decided to terminate the tenancy of the
D tenant Upadhyaya with the expiry of that month i.e. by the end of
December 1980. Thereupon, the appellant on December 4, 1980 was
constrained to attorn in favour of the original lessor Krishnamurthy
agreeing to pay him a rent of Rs.300 per month. Evidently, the appel-
lant had paid rent to the respondent upto March 31, 1980. After
becoming a direct tenant under the head lessor Krishnamurthy, the
E appellant stopped paying rent to the respondent w.e.f. April l, 1980.
On March 13, 1981 the respondent asserting to be the lessor com-
menced proceedings for eviction of the appellant from the demised
premises under s. 10(2)(i) and (vi) and 10(3)(b)(iii) of the Act i.e. on
the ground that the appellant was in wilful default in payment of rent,
that there was denial of title on his part and for his bona fide require-
F ment. The First Additional Rent Controller, Hyderabad by order
dated November 3, 1982 disallowed the application on the ground that
the respondent not being the lessor had no locus standi to initiate the
proceedings for eviction. On appeal, the Chief Judge, City Small
Causes Court, Hyderabad by judgment dated April 29, 1985 reversed
the order of the learned Rent Controller and directed the eviction of
G the appellant under s. !0(2)(i) and (vi) holding that the premises in
question was a building within s. 2(iii) of the Act and that in view of
the denial of his title as well as admitted non-payment of rent, the
appellant was estopped from denying the title. That decision of his has
been upheld by a learned Single Judge of the High Court by the judg-
ment under appeal. The judgment of the High Court mainly rests on
H the rule of estoppel.
D. SATYANARAYANA v. P. JAGADISH [SEN, J.] 149'

--f . The appeal must be allowed on the short ground that there being
A
a threat of eviction by a person claiming title paramount i.e. head
lessor Krishnamurthy, the appellant was not estopped under s. 116 of
the Evidence Act from challenging the title and his right to maintain
the eviction proceedings of the respondent P. Jagadish as the lessor.
S. 116 of the Evidence Act provides that no tenant of immovable
property shall, during the continuance of the tenancy, be permitted B
to deny that the landlord of such tenant had, at the beginning of the
y
. tenancy, a title to such immovable property. Possession and permis·
sion being established, estoppel would bind the tenant during the con-
tinuance of the tenancy and until he surren.ders his possession. The
....-. words "during the continuance of the tenancy" have been interpreted
! to mean during the continuance of the possession that was received
c
). under the tenancy in question, and the Courts have repeatedly laid
down that estoppel operates even after the termination of the tenancy
t so that a tenant who had been let into possession, however, defective it
may be, so long as he has not openly surrendered possession, cannot
dispute the title of the landlord at the commencement of the tenancy.
The rule of estoppel is thus restricted not only in extent but also in D
time i.e. restricted to the title of the landlord and during the con-
tinuance of the tenancy; and by necessary implication, it follows that a
tenant is not estopped, when he is under threat of eviction by the title
paramount, from contending that the landlord had no title before the
tenancy commenced or that the title of the landlord has since come to
·-<. an end. E

The rule of estoppel embodied under s. 116 of the Evidence Act
is that, a tenant who has been let into possession cannot deny his
landlord's title, however defective it may be, so long as he has not
openly restored possession by surrender to his landlord. During the
continuance of the tenancy, the tenant cannot acquire by prescription F
a permanent right of occupancy in derogation of the landlord's title by
\ mere assertion of such a right to the knowledge of the landlord. See:
Bilas Kumar v. Desraj Ranjit Singh ILR (1915) 37 All 557 (PC) and
Atyam Vee"aju & Ors. v. Pechetti Venkanna & Ors., [1966] I SCR
831. The general rule is however subject to certain exceptions. Thus a
tenant is not precluded from denying the derivative title of the persons G
claiming through the landlord. See: Kumar Krishna Prosad Lal Singha
Deo v. Baraboni Coal Concern Limited & Ors., AIR ( 1937) PC 25 I.
. -~
Similarly, the estoppel under s. 116 of the Evidence Act is restricted to
the denial of the title at the commencement of the tenancy. From this,
the exception follows, that it is open to the tenant even without sur-
rendering possession to show that since the date of the tenancy, the H
150 SUPREME COURT REPORTS [1988) 1 S.C.R.

title of the landlord came to an end or that he was evicted by a +--
A paramount title holder or that even though there was no actual evic-
tion or dispossession from the property, under a threat of eviction he
had attorned to the paramount title-holder. In order to constitute
eviction by title paramount, it has been established by decisions in
England and in India, that it is not necessary that the tenant should be
B dispossessed or even that there should be a suit in e jectment against
him. It will be sufficient if there was threat of eviction and if the tenant
as a result of such threat attorns to the real owner, he can set up such
eviction by way of defence either to an action for rent or to a suit in
ejecment. If the tenant however gives up possession voluntarily to the
title-holder, he cannot claim the benefit of this rule. When the tenancy
has been determined by eviction by title paramount, no question of
C estoppel arises under s. 116 of the Evidence Act. See: Adyanath
Ghatak v. Krishna Prasad Singh & Anr., AIR (1949) PC 124. The
principle must equally apply when the tenant has attorned under a
threat of eviction by the title paramount and there comes into exis-
tence a new jural relationship of landlord and tenant as between them.
D The law is stated in 27 Halsbury's Laws of England, 4th edn., para 238:

"238. Eviction under title paramount. In order to consti-
tute an eviction by a person claiming under title para-
mount, it is not necessary that the tenant should be put out
of possession, or that proceedings should be brought. A
E threat of eviction is sufficient, and if the tenant, in consequ-
ence of that threat, attorns to the claimant, he may set this

-
up as an eviction by way of defence to an action for rent,
subject to his proving the evictor's title. There is no evic-
tion, however, if the tenant gives up possession volun-
tarily."
F
Quite recently, this Court in Mangat Ram & Anr. v. Sardar Meharban ~
Singh & Ors., [ 1987) 1 Scale 964, to which one of us was a party, /
observed:

"The estoppel contemplated by s. 116 is restricted to the
G denial of title at the commencement of the tenancy and by
implication it follows that a tenant is not estopped from
contending that the title of the lessor has since come to an
end."' -+-
See also: Fida Hussain v. Faza/ Hussain & Ors., AIR ( 1963) MP 232,
H K.S.M. Guruswamy Nadar v. N.G. Ranganathan, AIR (1954) Mad.
D. SATYANARAYANA v. P. JAGAD!SH ISEN, J.I 151

402, S.A.A. Annamalai Chettiarv. Molaiyan & Ors., AIR ( 1970) Mad.
+ 396 and Chidambara Vinayagar Devasthanam v. Duraiswamy, !LR A
(1967) 1 Mad. 624.

In the premises, the High Court as well as the learned Chief
Judge of the City Small Causes Court were clearly in error in allowing
the proceedings brought by the respondent under s. 10(2)(i) and (vi) of B
the Act by relying on the rule of estoppel embodied in s. 116 of the
Evidence Act. The judgment of the High Court cannot be sustained
r for the reason that there is no finding that the dispute as to title was

- not bona fide in terms of s. 10(2)(i) and further inasmuch as the appellant
could not be treated to be in arrears of rent since he has been paying
rent to the head lessor Krishnamurthy after the attornment of the
c
) tenancy to him. The terms of s. 10(2)(i) and (vi) of the Act are set out
below:
•• "10. Eviction of tenant-(2) A landlord who seeks to evict
his tenant shall apply to the Controller for a direction in
that behalf. If the Controller, after giving the tenant a D
reasonable opportunity of showing cause against the appli-
cation, is satisfied-

(i) that the tenant has not paid or tendered the rent
due by him in respect of the building withiit fifteen
days after the expiry of the time fixed in the agree- E
ment of tenancy with his landlord or in the absence of
any such agreement, by the last day of the month next

- following that for which the rent is payable, or

(vi) that the tenant has denied the title of the landlord
or claimed a right of permanent tenancy and that such F
denial or claim was not bona fide.
\ the Controller shaJI make an order directing the tenant to
put the landlord in possession of the building and if the
Controller is not so satisfied, he shall make an order reject-
ing the application." G

The High Court failed to appreciate that there could be no order
J
of termination in terms of s. 10(2)(i) unless it could be said that in the
facts and circumstances of the case the dispute as to title was not bona
fide. It cannot be said having regard to the fact that the appellant was
under threat of eviction by the title paramount, that the rule of estop- H
152 SUPREME COURT REPORTS [1988] 1 S.C.R.

A pel under s. 116 of the Evidence Act applied and therefore he was not
entitled to dispute the title of the respondent. Furthermore, the appel- +
lant having on December 4, 1980 after being served with the notice of
eviction attomed to the head lessor, there came into existence a direct
tenancy. It has been brought to our notice that the appellant has since
a that date been paying rent to his present lessor Krishnamurthy and is
not in arrears of rent. The order of eviction passed by the learned
Chief Judge as well as the High Court against the appellant under
s. 10(2)(i) and (vi) of the Act is not sustainable in law:

In the result, the appeal succeeds and is allowed. The proceed-
ings for eviction of the appellant from the demised premises under
C s. 10(2)(i) and (vi) and 10(3)(b)(iii) of the Andhra Pradesh Buildings {
(Lease, Rent and Eviction) Control Act, 1960 are quashed. No costs.

P.S.S. Appeal allowed.

-