LODHA, J - (1.)THIS is a defendant's second appeal arising out of a suit for eviction and arrears of rent.
(2.)ONE Awani Kumar Mukerjee owned two shops Nos. 66 and 57 situated on the station road, Jaipur. Behind these shops there is a latrine and bath room. It is alleged by the plaintiff Manakchand that he purchased the aforesaid property from Awani Kumar Mukerjee on 26-7-62 for a sum of Rs. 10,500/- by a registered sale-deed. Defendant Madanlal was at that time occupying the premises in question as a tenant of Awani Kumar Mukerjee at a monthly rent of Rs. 25/-, in pursuance of a rent note alleged to have been executed by the defendant's father dated 1st of June, 1953. It is averred in para No. 3 of the plaint that this rent note was for one year and on the expiry of this period of one year the defendant's father became a statutory tenant. It is further alleged that after the death of defendant's father Devi Sahai, the defendant continued to occupy the premises in question in the capacity of a tenant. The plaintiff's case is that he requires the shops for his bonafide and personal necessity as he himself was residing in a rented house and was paying rent @ Rs 75/- per mensem and consequently he gave a notice to the defendant dated 8-8-62 terminating his tenancy with effect from midnight of 31st August, 1962, or such other date on which the defendant thought that the tenancy expired and required him to vacate the premises thereafter for the occupation of the plaintiff. It was also alleged that the defendant had paid rent upto 31st August, 1962, but had not paid rent thereafter. With these allegations the suit was brought on 28th November, 1962, in the Court of Civil Judge, Jaipur City. The defendant in his written statement admitted that he had received a notice from Awani Kumar Mukerjee stating that the premises in question had been sold by a registered sale deed by him to the plaintiff. It was, however, pleaded that there was an agreement between the defendant's father Devi Sahai and Awani Kumar Mukerjee that the defendant's family would reside in the premises in question and he would get necessary additions and alterations done therein to suit his convenience and further that Awani Kumar Mukerjee had also agreed that he would offer the shops in question for sale first to the defendant's father in case he wanted to sell them. It was further alleged that the defendant's father had carried out improvements and got fitted electricity and water connection in the premises in question. It was also pleaded that the plaintiff wanted to increase the rent, but since the defendant expressed his inability to pay enhanced rent for the premises, the present suit for ejectment has been filed. It was also stated by the defendant that after the death of his father he had executed a fresh rent note in favour of Awani Kumar according to which it was agreed that he would get one month's notice before he would be required to vacate the premises and consequently the notice dated 8-8-62 served by the plaintiff was not valid, as it did not give one month's time for vacating the premises. As regards payment of rent the plea of the defen-dant was that he had always been paying rent month to month and had sent the rent for the months of September, October, November and December, 1962, by money orders, but the same had been refused and that he was still prepared to pay the rent, but the plaintiff was not in a mood to accept the same, In the additional pleas the defendant further pleaded that Awani Kumar had no authority to sell the premises in question to the plaintiff as certain additions and alterations had been done by the defendant's father. He also expressed his willingness to execute a fresh rent-note in favour of the plaintiff. On these pleadings the trial court framed the following issues: ***
It appears that the defendant subsequently made an application on 5 2-64 for framing additional issues on which the following two issues were framed: ***

After recording the evidence produced by the parties the learned Additional Munsif No. 1 Jaipur City, to whom the case had been transferred for trial, decreed the plaintiff's suit for ejectment. Aggrieved by the judgment and decree of the learned Munsif the defendant filed an appeal in the Court of District Judge, Jaipur City, who transferred the same to the Court of Senior Civil Judge No, 2, Jaipur City, who affirmed the judgment and decree of the trial court and dismissed the appeal by his judgment dated 19-9-67. Consequently the defendant has come in second appeal to this court.

Learned counsel for the appellant has urged that the defendant was wrongly prevented from leading evidence to show that Awani Kumar Mukerjee had no right to sell the premises in question to the plaintiff. It is contended by him that sec. 116, Evidence Act, debars a tenant from denying the title of the landlord at the beginning of the tenancy during the continuance of the tenancy, but this principle of estoppel does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled by virtue of assignment by the original landlord. It is thus argued that the plaintiff purchased the property from Awani Kumar, the original landlord and it may not be open to the defendant to deny the title of Awani Kumar to the premises in question at the beginning of the tenancy, but, it is submitted, that the defendant can question the validity of the assignment by Awani Kumar in favour of the plaintiff. In support of his contention learned counsel has relied on Kumar Krishna Prasad Lai Singha Deo vs. Baraboni Coal Concern Ltd. , (l), Kailash Kumar vs. Banarsi Das Gupta{2), R. Vaithyanatha Aiyar vs. Subramaniya Ayyar (3), Dah Chand vs. Dadamchand (4), and Gajadhar Lodha vs. Khan Mahatadih Colliery Co. (5 ).

On the other hand learned counsel for the respondent has argued that in the present case the defendant had paid rent to the plaintiff after the assignment in his favour and had sent rent by money orders also. It is urged that the defendant had even expressed his willingness to execute a fresh rent-note in favour of the plaintiff. Thus it is submitted that the defendant is estopped by attornment and by payment of rent from questioning the title of the plaintiff to file the present suit as the assignee of the original landlord Awani Kumar.

It may be observed that the law is well settled that sec. 116, Evidence Act, does not deal or profess to deal with all kinds of estoppel which may arise between landlord and tenant. As laid down by their Lordships of the Privy Council in Kumar Krishna Prasad Lal Singha Deo vs. Baraboni Coal Concern, Ltd. (l) (supra) "it (sec. 116) deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation. " It was further observed that sec. 116, Evidence Act, "provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property. " Their Lordships further said, "this 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. "it was further held that this principle also does not apply to prevent a tenant from pleading that the title of the original lessor has since come to an end. "

In Dah Chand vs. Dadamchand (4) (supra) it was observed that sec. 116 of the Evidence Act is not attracted into application in cases where the tenant denied the facts which had happened subsequent to the commencement of the tenancy. This decision is based on what was stated by their Lordships of the Privy Council in Kumar Krishna Prasad Lal Singha Deo vs. Baraboni Coal Concern, Ltd. (1) (supra) that it is open to the tenant to plead that the title of the original lessor has since come to an end. All the cases relied upon by the learned counsel for the appellant on this point are based on the principle laid down by their Lordships of the Privy Council in Kumar Krishna Prasad Lal Singha Deo vs. Baraboni Coal Concern, Ltd. , (1) (supra) and I do not consider it necessary to discuss them separately. Learned counsel for the respondent has also frankly conceded that it would be permissible to the defendant to challenge the validity of the sale made by Awani Kumar Mukerjee in favour of the plaintiff, if it was a question of challenging the derivative title of the plaintiff based on the principle of estoppel contained in sec. 116, Evidence Act, only. But he submits that in the present case there was attornment in favour of the plaintiff by the defendant and, therefore, there are other grounds of estoppel, namely, by attornment and by payment of rent, and consequently the defendant is not entitled to prove that the plaintiff had no title to the premises in question.

It is, therefore, to be determined whether the defendant attorned to the purchaser of the property in question, the plaintiff, and thereby recognised him as his landlord? In this connection it may be pertinent to note that after executing the sale-deed in favour of the plaintiff, Awani Kumar gave a notice to the defendant that he had sold away the shops in question to the plaintiff and that henceforth the plaintiff alone was the full fledged owner of the property and further that only the rent due upto 26th July, 1962, may be paid to Awani Kumar. Before filing the present suit the plaintiff also gave a notice to the defendant dated 8th August, 1962, informing the latter that he had purchased the shops in question from Awani Kumar and that hence-forth the defendant had become his tenant. In the reply given by the defendant dated 30th October, 1962, the defendant has no where refuted the assertion made by the plaintiff in his notice that the defendant had become the plaintiff's tenant from the date of the purchase of the property by him. On the other hand in para five of this reply the defendant has stated that he had been sending the rent by money orders, but the plaintiff was refusing the same and that the plaintiff had been further requested through his counsel to accept the rent in future, and that the defendant did not commit any default in payment of rent in past. In para No. 5 of the plaint it was pleaded that the defendant received the notice on 9-8-62, but did not vacate the premises and paid the rent upto 31st August, 1962. In reply to this paragraph all that has been stated by the defendant in his written statement in this connection is that he had been paying the rent regularly every month and that he had sent the rent for the month of September Rs. 25/- p. m. in the first instance; Rs. 50/- for two months September and October; Rs. 75/- for three months September, October and November; and Rs. 100/- for four months September, October, November and December consecutively; but the same had been refused every time and that the defendant was himself anxious to pay the rent, but the plaintiff was not willing to accept it. Again in para 6 of the plaint it has been stated by the defendant that the defendant was ever willing to pay the rent to the plaintiff and the plaintiff did not accept the same. Again in para No. 2 of the additional pleas it has been pleaded by the defendant that he is even now prepared to execute rent note in favour of the plaintiff. The same thing has been repeated in para No. 5 of the additional pleas of the written statement. It would thus be clear that the defendant has said nothing about the payment of rent for the month of August 1962 to the plaintiff and has on the other hand stated that he had remitted the rent for the month of September to December to the plaintiff by money orders. Thus, from the notices given by the original landlord Awani Kumar and the plaintiff and also sent by the defendant to the plaintiff as also from the pleadings of the parties, which I have referred to above, it is amply clear that the defendant was ever willing to pay the rent after the purchase of the property by the plaintiff, to the plaintiff. It is also clear that Awani Kumar had to be paid rent only upto 26th July, 1962, the date on which he sold the property to the plaintiff. It is also averred by the defendant that he had sent the rent for the months from September to December 1962 to the plaintiff. In these circumstances there is no escape from the conclusion that the averment of the plaintiff that he had been paid the rent for the premises in question for the month of August, 1962, by the defendant, is correct. I am fortified in this conclusion from the statement of the plaintiff Manakchand. He has stated in the course of cross-examination, that the defendant had sent to him rent for one month by money order and he had accepted the same. It is correct that he had not stated that it was the rent of August, 1962, but the written statement of the defendant read along with the notice given by Awani Kumar and also averments in the plaint, make it abundantly clear that the rent for the month of August, 1962, was paid by the defendant to the plaintiff, after the purchase of the property by the latter, and I must say, that the suggestion of the learned counsel for the appellant that the rent of August, 1962, might have been paid to Awani Kumar in advance, is devoid of substance. It is significant that the defendant has no where controverted this position in his statement as a witness. It may also be recalled that at more than one place the defendant had repeatedly asserted that he was ever willing to pay the rent to the plaintiff and was even now willing to pay the same. He also expressed his willingness to execute the rent note in favour of the plaintiff. In these circumstances it would be reasonable to infer that the defendant had recognized the plaintiff as his landlord.

Learned counsel for the appellant urged that estoppel by attornment or payment of rent has not been pleaded by the plaintiff in the plaint and, therefore, he cannot be allowed to raise this plea. He has further argued that even if it is held that the payment of rent for the month of August had been made by the defendant to the plaintiff, it was only in pursuance of the terms of the old lease and, therefore, such a payment cannot operate as an estoppel. In this connection he has relied on Poovankulathil Thottam Puthiya Purayil Abdullah vs. Kakkat Valppil Moidin Kutty (6 ). I have looked into this ruling and am of opinion that it is altogether distinguishable on facts and the principle laid down therein has no applicability to the present case. In the case decided by the Madras High Court referred to above it was held that "where the facts do not amount to a fresh taking of the lease and the old lease subsists and payment of rent is made to another in pursuance of the terms of the old lease, to a person who has got authority to collect the rent from the landlord either by virtue of an assignment or reversion or otherwise, mere payment of rent in such cases will not operate as an estoppel but will only amount to an admission which will be capable of explanation. " In that case there was no fresh deed, but the defendant continued to pay the rent, because under the deed power was given to the plaintiff to collect the rent. It was found by the learned Judge that it did not appear from the evidence that the defendant No. 1 was cognizant of the defect of the title of the plaintiff. In such circumstances it was observed that the payment of rent might well have been deemed to be under a mistake and in ignorance of the defect in title. In the present case it has no where been pleaded by the defendant nor Mr. Rastogi, learned counsel for the appellant, has argued at any stage that the defendant paid the rent to the plaintiff on account of his ignorance about the defective title of the landlord. Moreover, the present is not a case of mere payment of rent, but the defendant has always been expressing his willingness to pay the rent and to execute a fresh rent note in the plaintiffs favour. In these circumstances the principle laid down in the Madras case cannot apply to the present case.

It is true that the plaintiff has not said in so many words in the plaint that the defendant had attorned in his favour by paying the rent and by showing his willingness to pay rent falling due after the purchase of the property by him and to execute the rent note in the plaintiff's favour. It is also correct that the plaintiff has stated in para No. 5 of the plaint that by efflux of time the defendant has become a statutory tenant. But this objection, in my view, cannot cut much ice in view of the reply given by the defendant himself. As already stated above, the defendant had impliedly accepted the allegations of having paid the rent of August, 1962, to the plaintiff and has expressly averred that he sent the rent for the months of September to December, 1962, by money orders and that he was prepared to pay the rent even the and was also willing to execute rent note in favour of the plaintiff. These averments made by the defendant in his written statement do not leave any doubt that he had recognized the plaintiff as his landlord. In these circumstances the omission on the part of the plaintiff to say in so many words that there was an attornment in his favour is not fatal. The word "attornment" has not been defined in the Transfer of Property Act or any other law. It has been borrowed form English law. It simply means an agreement or acknowledgment by a tenant that he holds the tenement of a new person as landlord. Such an agreement or attornment acts as an estoppel to prevent the tenant attorning from denying title of the one to whom he has attorned. The facts alleged by the plaintiff in the plaint clearly make out a case of attornment by the defendant in his favour. The plaintiff has no doubt mentioned in para No. 5 of the plaint that the defendant had become statutory tenant by efflux of time. However, there is nothing on the record to show that any time limit was fixed in respect of the initial tenancy, which came into existence between Awani Kumar and the defendant in 1953. For the purpose of justifying the notice of ejectment, the plaintiff alleged that the defendant was a statutory tenant and that it was not at all necessary for him in law to give a notice for ejectment. But assuming for the sake of argument that a statutory tenancy came into existence between Awani Kumar, and the defendant's father, there was nothing to prevent the assignee of Awani Kumar and the defendant to create a contractual tenancy by their own acts. I fail to understand how the use of the words "statutory tenancy in para No. 1 of the plaint can save the defendant from operation of the principle of estoppel based on the grounds of attornment and payment of rent.

Learned counsel for the appellant has also assailed the validity of the notice of ejectment given by the plaintiff. Admittedly the suit for ejectment was filed after more than three months from the date of service of the notice. It may be observed that in the notice it has been specifically mentioned that the tenancy is terminated from the midnight of the 31st August, 1962, or on such date as the defendant thinks the tenancy expires. Learned counsel for the appellant has argued that there was a subsequent rent-note executed by the defendant in the year 1959 in favour of Awani Kumar by which it was agreed that the landlord would give a clear one month's notice to the defendant for ejectment. There is no reliable evidence on the record to show that any such rent-note was executed. No details have been given regarding the month and date of such a rent note. Even if it is accepted for argument's sake that there was a condition of one month's notice it does not adversely affect the plaintiff's case, because in the notice of ejectment served on him it has been stated that the defendant may vacate the premises on the date on which he thinks his tenancy expires. In this view of the matter the objection regarding validity of the notice loses all its force and is hereby overruled.

The third and the last contention raised on behalf of the appellant is that both the lower courts committed an error in not allowing him to examine Kanhaya Lal and Sagarchand Soni and in not admitting in evidence the letters alleged to have been received by the defendant from the aforesaid persons in 1964. It is argued that from these letters the defendant came to know that the plaintiff had started negotiations for selling the premises in question and, therefore, if this evidence had been allowed the defendant would have disproved the plaintiff's case regarding personal necessity. It may be observed that the issues were struck on 5-9-63. The letters in question are alleged to have been received in 1964 and the application for admitting them in evidence was made in the middle of 1966. Thus on account of this inordinate delay, the trial court did not think it proper to admit this additional evidence. I may observe that there is no guarantee regarding genuineness of these two letters either. Taking these circumstances into consideration both the lower courts exercised their discretion against the defendant and no adequate reasons have been made out before me to take a different view.

(3.)NO other point was argued in the case.
As a result of the foregoing discussion I do not see any force in this appeal and hereby dismiss it with costs.

Learned counsel for the appellant prays for some time to enable his client to find out alternative suitable premises to which he may shift. Looking to all the circumstances of the case I hereby direct that the decree for ejectment shall not be executed against the appellant for a period of 2-1/2-months from today provided the appellant pays to the plaintiff or deposits in court the arrears of rent due upto the end of July 1969 within a fortnight from today and goes on paying month to month rent hereafter within 10 days of its falling due.

Learned counsel for the appellant prays for grant of leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave to appeal. The prayer is disallowed. .