The rule of estoppel embodied under Section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. During the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord's title by mere assertion of such a right to the knowledge of the landlord. See: Bilas Kunwar v. Desraj Ranjit Singh ILR (1915) 37 All. 557 (PC) and Atyam Veerraju and Ors. v. Pechetti Venkanna and Ors. MANU/SC/0349/1965 : [1966]1SCR831 . The general rule is, however, subject to certain exceptions. Thus
a tenant is not precluded from denying the derivative title of the persons claiming through the landlord.
See: Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Limited and Ors. MANU/PR/0072/1937. Similarly, the estoppel under Section 116 of the Evidence Act is restricted to the denial of the title at the commencement of the tenancy. From this, the exception follows, that
it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title-holder.
In order to constitute eviction by title paramount, it has been established by decisions in England and in India, that it is not necessary that the tenant should be dispossessed or even that there should be a suit in ejectment against him. It will be sufficient if there was threat of eviction and if the tenant as a result of such threat attars to the real owner, he can set up such eviction by way of defence either to an action for rent or to a suit in ejectment. If the tenant, however, gives up possession voluntarily to the title-holder, he cannot claim the benefit of this rule. When the tenancy has been determined by eviction by title paramount, no question of estoppel arises under Section 116 of the Evidence Act. See : Adyanath Ghatak v. Krishna Prasad Singh and Anr. MANU/PR/0056/1948. The principle must equally apply when the tenant has attorned under a threat of eviction by the title paramount and there comes into existence a new jural relationship of landlord and tenant as between them. The law is stated in 27 Halsbury's Laws of England, 4th edn., para 238:
238. Eviction under title paramount. In order to constitute an eviction by a person claiming under title paramount, it is not necessary that the tenant should be put out of possession, or that proceedings should be brought. A threat of eviction is sufficient, and if the tenant, in consequence of that threat, attars to the claimant, he may set this up as an eviction by way of defence to an action for rent, subject to his proving the evictor's title. There is no eviction, however, if the tenant gives up possession voluntarily.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 2223 of 1987
Decided On: 15.09.1987
D. Satyanarayana Vs. P. Jagadish
Hon'ble Judges/Coram:
A.P. Sen and B.C. Ray, JJ.
Citation : AIR 1987 SC 2192
