judgement:
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.
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, exhibit P 6, dated May 6, 1929, for six years from Josyula Krishnavenamma, had attorned to Ramakotiah and Seetharamiah by executing the Kadapa (Kabuliat) exhibit D 4, on March 16, 1933, I do not think that any further payment of rent was necessary to make the attornment effective and am of opinion that in that case the view of the learned Subordinate Judge to the effect that the predecessors in interest of the defendants appellants were in possession through their tenants over the land in suit, Was correct.
The High Court did not decide by its first order remitting the point No. 2, viz., ,whether the plaintiffs got into possession of the suit properties earlier than the defendants and their predecessor in title and whether they are entitled to recover possession of the suit properties on the strength of their Possessory title ' for a fresh finding that the attornment by the execution of the deed of Kadapa was not good attornment without the executants paying rent to Ramakotiah and Seetharamiah.
The learned Judge simply said: 922 "Apart from 'the question whether the principle of law adopted by the learned.
Judge is welf founded or not, on which I express no opinion at present it seems to me that the finding of the learned Judge that,, the first defendant bad prior, possession from 193 to 1936 cannot be accepted in second appeal" The finding about the prior possession, of the learned Subordinate Judge was not accepted by the High Court because it considered that the Subordinate Judge bad not closely scrutinized the evidence in the case on the very crucial question in issue between the parties.
This crucial question was formulated as 'whether the tenants really attorned to the reversgioners and the reversioners recognized the possession of the tenants as theirs. ' What was want by the High Court from this question, is not clear to me.
If the execution of the deed, exhibit D 4, amounted to the attornment by the tenants in favour of Seetharamiah and Ramakotiah, who claimed to be the heirs of Krishnavenamma, and the execution of the cowle, exhibit D 5, by those two persons in favour of the tenants, to the recognition of the tenants as their tenants, no further question of scrutiny of any other evidence on record could have arisen.
The other evidence on record about which the High Court expressed its opinion, and that too not in a final form, as a fresh finding was being called on the basis of that evidence, mainly consisted of the evidence in favour of the defendant,%.
Non consideration of that evidence could have been a grievance to the defendants, but not to the plaintiffs appellants before the High Court.
Expression of opinion in that form on such evidence wag detrimental to the interest of the defendant in a fresh 'consideration of that evidence by the Subordinate Judge, who,, naturally, in his fresh finding, followed a practically similar line of criticism against "that evidence.
The mere fact that certain evidence had not been closely scrutinized or, in other orders, not scrutinized, in & manner, in which the second 923 appellate Court desires, it to be scrutinized, cannot be round for interference with the finding of fact in the second appeal.
If the High Court considered, is being now urged for the respondent, that without proof of the tenants actually paying rent to,, Seetharamiah and Ramakotiah, who laid claim as heirs but have been proved to be not heirs of Rat Krishnavenamma, there was no valid attornment, the order for a fresh finding about attornment could be justified on the ground that the Subordinate Judge had not referred to the evidence having a hearing on the question of the payment of rent by the tenants and its receipt by the new landlords Seetharamiah and Ramakotiah.
I however find it difficult to put such a construction on the High Court 's order when it did not decide upon the principle of law adopted by the first appellate Court.
"Attornment, in its strict sense, is an agreement of the tenant to a grant of the reversion made by the landlord to another, or, as it has been defined ', 'the act of the tenants putting one person in the place of another as his landlord" see paragraph 732, Foa 's General Law of Landlord and Tenant.
This means that in the first instance attornment is made in favour of the person who has derived his title or supposed ' title from the Original landlord.
It implies a continuity of the tenancy created by the original landlord in favour of the tenant.
It is in these circumstances that the existing tenant, for the rest of the period of his Tenancy, agrees to acknowledge the new landlord as his landlord.
Such an agreement of the tenant amounts to attornment and by such an attornment the tenant by his act substitutes the new landlord in place of the previous one.
Such attornment is complete the moment the tenant agrees to acknowledge the new landlord to be his landlord.
Any future payment or non payment of rent does not affect the relationship created by the attornment.
The new landlord will have his remedies with respect to the rents falling in arrears.
924 Again, it is stated in paragraph 745 at page 475 : "With regard to the title of person from whom the possession was not obtained, but who has been recognised as landlord by the tenant, such recognition may be by express agreement, by attornment, or other formal acknowledgment (as by paying a nominal sum of money), by payment of rent, or of a. nominal sum as rent, or by submission to a distress.
" The attornment is here described as one mode of recognising a person as one 's landlord, just as payment of rent is another mode for the purpose.
Expression to similar effect is to be found in paragraphs 746, and also 747 where it is further noted : "But the tenant is not allowed to impeach the title of a person to whom he has paid rent, or whose title he has otherwise recognised, without showing a better title in some other person.
Thus he cannot, after attorning to a person who derives his title under a will, contend merely that upon a true construction o f the will he had no title; nor can he, after paving him rent, dispute his title merely on the ground that the devise to him was void, owing to the incapacity of the testator.
" In krisna Proshad Lal Singha Deo vs Baraboni Coal Concern (1) the Privy Council said at page 318, when considering the scope of section 116 of the Indian Evidence Act: "Whether during the currency of a term the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term, is estopped from disputing the ' claim which he has once admitted,, we important questions, but they are instances of cases which are outside section 116 altogether.
" (1) (1937) L. R. 64 I. A. 311.
925 And again, at page 319 "In the ordinary case of a lease intended as a present demise which is the case before the Board on this appeal the section applies against the lessee, any assignee of the term and any sub lessee or licencee.
What all such persons are precluded from denying is that the lessor had a title at the date of the lease, and there is no exception even for the case where the lease itself discloses the defect of title.
The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, 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 exhibit D 4 and Cowle exhibit D 5, and when according to the first appellate court, the effect of those documents was that the tenants had attorned to them.
I am, however, of opinion, though the point was not raised, that the Kadapa exhibit D 4 is not an agreement by tenants simply accepting the claimants to be the new landlords as, by this document, they do not just substitute the new landlords in the place of the old.
They really took a new lease from those two persons.
The terms of the new lease were different from those of the lease of Krishnavena The unexpired period of the tenancy was two years.
Under the Kadapa, the new tenancy was to continue for five years from June, 1933.
The lease does not cover just the land which they held under 927 their previous tenancy, but included some other land as well.
The amount of rent they were to pay also differed.
It was much reduced.
Such a document is not a deed of attornment but is a document accepting fresh tenancy.
Seetharamiah and Ramakotiah could not in law lease the land in suit to those tenants as they had no tit ,in themselves, they being not heirs of Krishnavenamma.
Any lease executed by them created no right.
These lessors were not in actual possession of the land at any time.
They could not have, therefore, conveyed possession to their tenants.
As the new lesseess got no title under the lease, their continued possession over the land in suit could not be possession under the lease on behalf of the new lessors, especially when their possession can be traced to the valid tenancy under the deed, exhibit P 6, in favour of Krishnavenamma and will be deemed to be on behalf of legal heir.
Seetharamiah and Ramakotiah, therefore, cannot be held to be in possession of the land in suit through their tenants between June, 1933, and some time in 1936, when those tenants were dispossessed by Moka Subba Rao on behalf of plaintiff No. 1.
It follows that the predecessors in interest of the defendants have been rightly held to be not in possession of the land in suit prior to plaintiff No. 1, 'who too.
, had no title, getting possession of the land in suit and that the order under appeal is correct.
Appeal dismissed.

summary/full:
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 attorned 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 vs Baraboni Coal Concern, (1937) L. R. 64 I. A. 31 I , referred to.
There was no good reason why the possession of tenants who had attorned to a person having no, title be not considered to be, his possession in determining whether he had preferential possessory title to that of another who too had no title.
The mere, fact that certain evidence had not been closely scrutinised in other words, not scrutinised in a manner in which the second appellate court desired it to be scrutinised, could not be a ground for interference with a finding of fact in second appeal.
In the present case the Kadapal the terms of which were different from those of the old one was not a deed of attornment merely substituting the new landlord in place of the old but was a document accepting fresh.
tenancy but as the new lessors had no title to the property the ' lease executed by the created no right.


judgement:
l Appeal No. 96 of 1952.
Appeal from the Judgment and Order dated the 9th April, 1951, of the High Court of Judicature at Calcutta (Sen and Chunder JJ.) in Civil Rule No. 1038 of 1950 arising out of the Order dated the 4th July, 1960, of the Court of the 6th Judge, Presidency Small Causes Court, Calcutta, in Ejectment Suit No. 6571 of 1949.
Arun Kumar Dutta and, Shivdas Ghosh for the appellant.
Panchanan Ghose (section P. Ghose, with him) for the respondent.
January 29.
The Judgment of the Court was delivered by DAS J.
This appeal is directed against the judgment and order of a Bench of the Calcutta High Court passed on the 9th April, 1961, in Civil Rule No. 1038 of 1950.
The facts leading up to this appeal may be shortly stated as follows : The respondents were, according to the appellant, monthly tenants under the appellant in respect of three rooms, one kitchen, one privy and a bathroom on the ground floor of premises No. 6, Roy Began 535 Street, Calcutta, at a monthly rent of Rs. 25 payable according to the Bengali calendar month.
On the 29th Baisakh 1356 B. section the appellant gave notice to the respondents to quit the premises on or before the 7th Jaistha 1356 B.S.
The respondents having failed to comply with the notice the appellant on the 1st June, 1949, instituted proceedings under Chapter VII of the , for the eviction of the respondents from the demised premises on the allegation that the tenancy had determined ipso fact,) for nonpayment of rent for three consecutive months in terms of section 12 (3) of the West Bengal Premises Rent Control Act, 1948.
The respondents on the 6th July, 1949, deposited into Court Rs. 233 7 0 and on the 8th July, 1949, entered appearance and filed a written statement denying that they were in arrears with their rent or that their tenancy , had been ipso facto determined.
The said proceedings came up for hearing on the 27th February, 1950, and the respondents not having appeared it was heard ex parte and an order was made directing the delivery of possession of the premises to the appellant on the 3rd May, 1950.
In the meantime on the 31st March, 1960, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act XVII of 1950) came into force.
On the 29th May, 1950, the respondents filed an application in the trial Court under section 18 of the said Act for vacating the order for possession.
On the 5th June, 1950, the trial Court made an order upon terms which, as set out in the respondents ' case, are as follows : "5 6 50.
On consent all arrears of rent up to Jaistha 1357 B.S. with interest at 9% p.a. along with the costs of the suit including half Pleader 's fee amounting to Rs. 399 3 0 on consent in total to be paid by the defendants to the plaintiff by 4 7 50.
The date fixed for payment and final orders.
All proceedings and execution stayed until further orders.
" The agreed amount having been paid the order for possession was vacated on the 4th July, 1950.
The 536 order as recorded in the order sheet reads as follows: "4 7 50.
Parties present as before.
Defendant carries out the order of the learned Court, dated 5th June, 1950.
Money deposited in Court as ordered.
Accordingly order of decree for possession is vacated.
Money in Court is allowed to be withdrawn by the plaintiff 's pleader under power.
" The appellant on the 1st August, 1950, moved the High Court under section 115 of the Code of Civil Procedure for setting aside the order of the trial Court passed on the 4th July, 1950.
While the application was pending before the High Court the West 'Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950 (Act LXII of 1950) came into force on the 30th November, 1950.
On the 9th April, 1951, the High Court following an earlier decision of another Bench of that Court in Rai Bahadur Atulya Dhan Banerjee vs Sudhangsu Bhusan Dutta(1) dismissed the application.
On the 30th November, 1951, the High Court granted leave to the appellant to appeal to this Court and issued a certificate under the provisions of article 133 (1) (c) of the Constitution of India.
As already stated, the proceedings out of which the present appeal arises were instituted under Chapter VII of the .
Chapter VII of that Act which is intituled "Recovery of Possession of Immovable Property" allows the landlord, in certain circumstances, to "apply to the Small Cause Court for a summons against the occupant calling upon him to show cause on a day therein appointed why he should not be compelled to deliver up the property.
" Section 43 provides that if the occupant does not appear at the time appointed or show cause to the contrary, the applicant landlord shall, if the Court is satisfied that he is entitled to apply under section 41, be entitled to an order addressed to a Bailiff of the Court directing (1) 537 him to give possession of the property to the applicant on such date as the Court thinks fib to name in such order.
Although under the rules framed under the Act this application under section.
41 is initiated by a plaint there is no dispute that the proceeding is not a suit and the order for delivery of possession does not strictly speaking amount to a decree for recovery of possession [See Rai Meherbai Sorabji Master vs Pherozshaw Sorabji Gazdar(1)].
Indeed, section 1.9 of the Act peremptorily provides, inter alia, that the Small Causes Court shall have no jurisdiction in suits for recovery of immovable property.
The only question for consideration, therefore, is whether section 18(1) of Act XVII of 1950 applies to an order for possession made under section 43 of the .
Section 18(1) and the marginal note to that section run as follows: "18.
Where any decree for recovery of posses Power of court to sion of any premises has been made |rescind or vary on the ground of default in decrees and orders payment of arrears of rent under or to give relief in the provisions of the West Bengal pending suits in Premises Rent Control (Temporary, certain cases Provisions) Act, 1948,but the possession of such premises has not been recovered from the tenant, the tenant may apply to the trial Court within sixty days of the coming into force of this Act for vacating the decree for ejectment against him and within such period no order for delivery of possession shall be made by any Court, nor if an application is made by the tenant under this sub section till the application has been dismissed under sub section (4).
" In Rai Bahadur Atulya Dhan Banerjee vs Sudhangsu Bhusan Dutta it was held that the expression "decree for recovery of possession" in subsection (1) of section 18 includes an order for recovery of possession made under Chapter VII of the .
This case (1) BOM.
(2) 538 was followed, without further discussion, by different Benches of the same High Court in Dhanesh Prakash Pal vs Lalit Mohan Ghose (1), Mohon Lal Khettry v: Chuni Lal Khettry(2), Jethmull Sethia vs Aloke Ganguly (3) and also in the present case.
Finally, the question was again considered by a larger Bench of the Calcutta High Court in Iswari Prosad Goenka vs N. B. Sen(4).
The learned Judges agreed with the earlier decision in Rai Bahadur Atulya Dhan Banerjee vs Sudhangsu Bhusan Dutta (5).
After hearing the able arguments I advanced before us and giving the most anxious consideration to the decisions in the cases mentioned above we are unable to accept the conclusion arrived at by them in those, cases as correct.
Apart from the question whether the marginal note can at all be referred to in construing the provisions of a section of an Act, it is quite clear, on the authorities, that the marginal note cannot control the meaning of the body of the section if the language employed therein is clear and unambiguous.
If the language of the section is clear then it may be that there is an accidental slip in the marginal note rather than that the marginal note is correct and the accidental slip is in the body of the section itself.
Take for instance section 11 of the West Bengal Premises Rent Control Act, 1948.
The section says that notwithstanding anything contained in certain Acts specified therein, "no order or decree for the recovery of possession of any premises shall be made so long as the tenant pays to the full extent the rent allowable by this Act and performs the conditions of the tenancy.
" The marginal note to that section simply says: " No order for ejectment ordinarily to be made if rent paid at allowable rate." 'In the marginal note the words " or decree " do not find a place at all, a fact which clearly shows that the marginal note was ' not prepared carefully and that it was not a sure guide in the matter of the (1) (2) (I951) (3) (4) (5) 539 interpretation of the body of the section.
We have, therefore, to read the words used in the body of section 18(1) of the 195O Act and if we find the meaning clear and unambiguous ' the marginal note should not be permitted to create an ambiguity in the section.
Section 18 (1), as it stood on the 4th July, 1950, when the order for possession passed on the 27th February, 1950, was vacated, gave relief to a tenant against whom any decree for recovery of possession of any premises had been made on the ground of default in payment of arrears of rent under the provisions of the 1948 Act, provided that the possession of the premises had not been recovered from him.
The relief given by this section is clearly against a decree for possession which "has been made" under the 1948 Act.
The language of section 18 (1) of the 1950 Act and in particular the specific reference therein to the Act of 1948 take us back to that Act.
Section II of the 1948 Act %refers " to order or decree for the recovery of possession of, any premises".
The reference in the non obstante clause of section 11 to the , I 882, clearly indicates that the order for the recovery of possession refers to orders passed under section 43 of the last mentioned Act on applications made under section 41 thereof.
Section 11 speaks of both " order " for the recovery of possession and " decree " for the recovery of possession.
Therefore, there can remain no manner of doubt that the two words " order " and " decree " in section 11 connote two different things.
This is further made clear by the use of two words " suit " or " proceeding " in section 12 of the 1948 Act.
It is, thus, quite clear that in the 1948 Act " suit " is different from " proceeding" and " order " is different from " decree ".
Therefore, in construing the 1948 Act there can be no occasion for giving any extended meaning to the word " decree" so as to include "order", for the two are distinctly and separately provided for.
Section 18 (1) of Act XVII of 1950 does not refer to "decree" 70 540 simpliciter but to "any decree for recovery of possession of any premises on the ground of default in payment of arrears of rent under the provisions of" the 1948 Act.
Turning then to that Act we find that a decree for possession on the ground of non payment of rent under that Act is treated distinctly from an order for possession on the ground of non payment of rent under the same Act.
A decree for the recovery of possession within the meaning of that Act can, therefore, only mean a decree in a suit for recovery of possession and cannot cover an order for possession passed under section 43 on an application made under section 41 of the .
In short, section 18(1) of Act XVII of 1950 expressly attracts the 1948 Act and under that Act there can be no necessity for giving an extended meaning to the word "decree", for "order " is sepa rately dealt with in that Act.
It is said that whatever the word "decree" may mean in the 1948 Act it is immaterial for the purposes of construing Act XVII of 1950 for the Court has to ascertain the meaning of the word "decree" as used in section 18(1) of the last mentioned Act.
It has been already stated that the language of section 18 (1) attracts the relevant provisions of the 1948 Act and, therefore, the word "decree" occurring in section 18(1) must necessarily be construed in the light of the 1948 Act and it is clear that so construed it cannot cover "order" for possession made under Chapter VII of the .
Apart from ' that consideration, the question still remains: What does the word "decree" in section 18 (1) mean? That word has not been defined either in the 1948 Act or in Act XVII of 1950 or in the Bengal General Clauses Act.
That word, however, has been defined in the Code of Civil Procedure, 1908, and, as there defined, it means the formal expression of an adjudication which determines the rights of the parties with regard to the matter in controversy in the suit which last word prima facie means a civil proceeding initiated by a plaint (section 26 and Order IV, rule 1, 541 Civil Procedure Code).
This is the ordinary accepted meaning of the word " decree " and if that meaning is attributed to the word " decree " occurring in section 18(1) then clearly it cannot cover an order for possession passed under section 43 of the on an application made under section 41 of that Act.
It is, however, urged that the word " decree" in section 18 (1) of Act XVII of 1950 should not be read in its strict sense.
It is said that although the word "suit" ordinarily means a proceeding instituted by a plaint, it is also used in a wider sense so as to cover proceedings which are not instituted by a plaint and, therefore.
, an adjudication in those proceedings which are also suits in that extended meaning may well be said to be a " decree".
Reference is made to the explanation of sub section (1) of section 12 of Act XVII of 1950, which expressly provides that in the proviso to sub section (1) the term "suit" does not include proceeding under Chapter VII of the , and it is urged that this explanation inferentially means that the word " suit " occurring in the other sections of Act XVII of 1950 may include a proceeding under Chapter VII of the and, therefore, an order made on such a proceeding may be described as an adjudication in a suit and, therefore, a decree.
It is not quite clear how this inference, even if it can be properly drawn, can have any bearing on the construction of the word "decree" in sub section (1) of section 18 of the Act XVII of 1960 where the word " suit " is not used at all.
Be that as it may, the argument founded on the aforesaid inference sought to be drawn from the explanation to section 12 (1) of Act XVII of 1950 will clearly appear to be untenable when the provisions of that Act are closely scrutinised, for it will then be found that the word " suit" does not and was not intended to cover any proceeding under Chapter VII of the .
Section 12 (1) prohibits the making of any order or decree for the 542 recovery of possession by any Court, notwithstanding anything to the contrary in any other Act or law.
This sub section (1), standing by itself, means that no order for possession can be passed by the Presidency Small Cause Court notwithstanding the and no decree for possession can be made by any Court in any suit notwithstanding the Transfer of Property Act or the Contract Act or the Code of Civil Procedure, 1908.
The proviso to sub section (1), however, saves "any suit for decree for such recovery of possession" against certain tenants or in certain circumstances.
Therefore, it is clear that the proviso to sub section (1) of section 12 does not save proceedings under Chapter VII of the .
The explanation to that sub section stating that the word "suit" in the proviso does not include a proceeding under Chapter VII of the appears to have been inserted out of abundant caution to put the position beyond any doubt.
Section 16 of Act XVII of 1950 provides that notwithstanding anything contained in any other law a suit by a landlord against a tenant for recovery of possession of any premises to which the Act applies shall lie to the Courts as set out in Schedule B and that no other Court shall be competent to entertain or try such suit.
According to Schedule B, where the premises are situate on land wholly within the ordinary original civil jurisdiction of the Calcutta High Court and when the rent does not exceed Rs. 500 per month, the Chief Judge of the Calcutta Court of Small Causes shall entertain and try such suit as a Court of the District Judge, provided that be shall be entitled to transfer the suit to any other Judge of that Court who shall try it as a Court of the Subordinate Judge.
The result of sections 12 and 16 read with Schedule B is for all practical purposes to suspend the operation of Chapter VII of the in Calcutta for no one will take proceedings in which no order can be made.
The effect of those sections is to confer a new jurisdiction on the 543 Chief Judge of the Calcutta Small Cause Court to entertain and try suits by landlords against tenants for recovery of possession of premises situate within the ordinary original civil jurisdiction of the Calcutta High Court when the monthly rent does not exceed Rs. 600.
Thus after Act XVII of 1950 came into force the Calcutta Small Cause Court has ceased to have any power to pass an order for possession under Chapter VII of the and the Small Cause Court of Calcutta can, under that Act,, only pass a decree for possession in a suit Which is saved by the proviso to sub section (1) of section 12 and with regard to which a special jurisdiction is conferred on that Court by section 16 of that Act.
That being the position, the word" suit " in none of the sections of Act XVII of 1950 can be said to have been used as including a proceeding under Chapter VII of the .
Therefore, the reasoning advanced in support of attributing an extended meaning to the word "suit" and then inferentially to the word decree " in section 18 (1) cannot be sustained.
It is next argued that if the word "decree" is construed strictly it will give rise to startling results in that poor tenants against whom orders for possesSion had been made under the 1948 Act will be deprived of the benefit of section 18 (1) while the wealthy tenants paying rents above Rs. 500 per month will get relief under that section and this will frustrate the intention of the Legislature.
This argument proceeds on the assumption that the Legislature intended to give relief to all tenants against whom orders or decrees for possession had been made.
The language of section 18 (1) clearly shows that the intention of the Legislature was to give relief only to certain tenants in certain circumstances.
In the first place relief is given only with respect to decree for possession made on the specified ground and not with respect to a decree for possession made on any other ground.
In the next place relief is given only when the possession of the premises in respect of which a 544 decree for possession had been made had not been made over by the tenant.
Thus tenants against whom a decree for possession had been made on grounds other than the ground specified.
in the subs section and even tenants against whom a decree for possession had been made on the specified ground but who had, voluntarily or otherwise, delivered possession of the premises get no relief under section 18 (1).
An order for possession is made by the Presidency Small Cause Court under Section 43 on a summary application under section 41 and the order directs the Bailiff of the Court to deliver possession to the applicant.
This order for the recovery of possession which under section 37 of the is final and conclusive and from which there is no appeal or a new trial under section 38 of that Act does not ordinarily take much time to be obtained or to be carried out and certainly much less than what is taken to obtain a decree for possession in a suit and to execute such decree, because both the decree for possession in a suit and the order for execution thereof are subject to appeal.
The Legislature may well have thought that cases where orders for possession had been made under Chapter VII of the with respect to premises which were situate within the small area of the ordinary original civil jurisdiction of the Calcutta High Court and which, in spite of such orders, were still in the possession of the tenants at the date of the commencement of Act XVII of 1950 would be few in number as compared to the number of cases where decrees for possession had been made with respect to premises which were situate within a very much larger area and which were still in the possession of the tenants and, therefore, did not think fit to provide for those few cases.
It must always be borne in mind, as said by Lord Halsbury in Commissioner for Special Purposes of Income Tax vs Pemsel (1), that it is not competent to any Court to proceed upon the assumption that the Legislature L. R. ; at P. 549.
545 has made a mistake.
The Court must proceed on the footing that the Legislature intended what it has said.
Even if there is some defect in the phraseology used by the Legislature the Court cannot, as pointed out in Crawford vs Spooner(1), aid the Legislature 's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act.
Even where there is a casus omissus, it is, as said by Lord Russell of Killowen in Hansraj Gupta vs Official Liquidator of Dehra Dun Mussoorie Electric Tramway Co., Ltd. (2), for others than the Courts to remedy the defect.
In our view it is not right to give to the word " decree" a meaning other than its ordinary accepted meaning and we are bound to say, in spite of our profound respect for the opinions of the learned Judges who decided them, that the several cases relied on by the respondent were not correctly decided.
Reference was made, in, course of argument, to section 6 of the West Bengal Act LXII of 1950.
That section refers to orders or decrees made between the commencement of Act XVII of 1950 and Act LXII of 1950, i.e., between the 30th March, 1950, and the 30th November, 1950, and cannot have any application to the order for possession made in this case on the 27th February, 1950.
For reasons stated above this appeal must be allowed and the order made by the High Court should be set aside and the respondents ' application under section 18 (1) of Act XVII of 1950 should be dismissed and we order accordingly.
In the circumstances of this case we make no order as to costs except that the parties should bear their own costs throughout.
Appeal allowed.
Agent for the respondent : Sukumar Ghose.
(1) 6 Moo.
P.C. I; 4 M.I.A. 179.
(2) (1933) L.R. 60 I.A. I3; A.I.R. 1933 P.C 63.

dataset_name: IN-Abs

summary/full:
The expression " decree for recovery of possession " in section 18 (1), of the West Bengal Premises Rent Control (Temporary Provisions) Act (Act XVII of 1950) does not include an order for recovery of possession made under section 43 'of the , and a person against whom an order for 534 recovery of possession has been passed under section 43 of the , is not therefore entitled to claim relief under the provisions of section 18 (1) of Act XVII of 1950.
Rai Bahadur Atulya Dhan Banerjee vs Sudhangsu Bhusan Dutta ([1951] 5 , Dhanesh Prokash Pal vs
Lalit Mohan Ghosh ([1951] , Mohan Lal Khettry vs Chuni Lal Khettry ([1951] Jethmull Sethia vs Aloke Ganguly ([19511 , Iswari Prosad Goenka vs N. B. Sen ([19511 overruled.
In construing a statute it is not competent to any court to proceed upon the assumption that the Legislature has made a mistake and even if there is some defect in the phraseology used by the Legislature, the Court cannot aid the defective phrasing of an Act or add and amend, or by construction, make up deficiencies which are left in the Act.
Commissioner for Special Purposes of Income Tax vs Pemsel (11891] A.C. 531); Crawford vs Spooner ([1846 51] 4 M.I.A. 179) and Hansraj Gupta vs Official Liquidator of Dehra Dun Mussourie Electric Tramway Co. Ltd. ([1933] 60 I.A. 13) referred to.