A. P. Misra, J. - (1.) THE appellant in the present Second Appeal has moved two applications : one under Order 6 Rule 17 CPC for the amendment of the written statement and the other under Order 41 Rule 27 for admitting two documents as additional evidence in this case. By means of this order these two applications are being disposed of.
(2.) THE present Second Appeal arises out of a suit for ejectment, recovery of arrears of rent and damages for use and occupation filed by respondents on the allegations that they are owners of the shop in suit of which the appellant is tenant at the rate of Rs. 22.50 paise per month. THE defendant has not paid the rent since 1st January, 1965. THE suit was filed mainly on two grounds namely (1) on the ground of default in payment of rent and (2) on material alterations. THE appellant contested the suit on the grounds that the tenancy is annually and not monthly and that the rent is Rs. 270/- per annum. In fact, for some time the plaintiffs used to take clothes etc. and on account of that, adjustment in the rent was done. In August, 1967 defendant fell ill seriously and has been taken out for treatment to Allahabad and he remained out of station till 1968 and the shop in suit remained closed. It was further pleaded that no notice was received or refused by him. He also denied the material alterations as alleged in the plaint. The trial court decreed the suit and the same decree was also confirmed by the first appellate court. It is against that decree the aforesaid Second Appeal has been filed in this Court. The reasons for amendment of the written statement and adducing additional evidence are common though they have been mentioned in separate applications. According to the appellant, on 16th July, 1984 through one Basir Ahmad he came to know that the shop in suit was a Waqf property and the plaintiffs were not the owner of the same. In pursuance to that knowledge the appellant went to Lucknow on 17th July, 1984 and after enquiry in the U. P. Waqf Board came to know that the shop in suit is Waqf property and is registered with the Central Sunni Waqf Board. Thereafter he applied on 19th July, 1984 for the certified copy of the Waqf deed which he received on 29th July, 1984. As per aforesaid documents the Waqf was created by Smt. Batool Bibi by means of a registered deed of Waqf dated 15th August, 1918 which was registered on 3rd September, 1918. At the time of the registration Sri Kurban Ali was the first Mutwalli who was the husband of Smt. Batool Bibi and after his death it was stipulated therein that his descendants would be appointed as Mutwallis. It is also the case of the applicant that the appellant's grand father Ram Lai was tenant since before 1918 in the same shop and after his death the tenancy was inherited by Govind Prasad the father of the present appellant. After the death of his father, the appellant having no knowledge of the existence of the Waqf had been paying the rent to the plaintiffs treating them as the owners/landlords of the shop in suit. It has also been stated that the tenancy of the appellant has started about 100 years ago and at the time of the creation of the Waqf the aforesaid Kurban Ali was realising the rent. At no time either Kurban Ali or his descendants ever communicated to the appellant or his predecessor that the property is Waqf property. According to the applicant, income, out of the suit property was being appropriated by the plaintiffs and their predecessor for their own use and they never treated the said property as Waqf property. On these facts it is alleged that since the very basis of filing of the suit by the plaintiffs for the eviction of the appellant disappears on account of the aforesaid knowledge, it is necessary in the interest of justice to permit the amendment of the written statement and also for receiving the additional evidence as aforesaid. The applicant thus sought for admission of the certified copy of the Waqf deed and photostat copy of the register of the Waqf (Serial No. 18) in this case. Similarly in consonance of the said knowledge also sought for amendment in the written statement as stated in para 11-A to para 11-C in the application. Sri G. P. Bhargava, learned counsel for the applicant vehemently urged on the basis of the aforesaid averments that since the revealing of the new fact goes at the root of the matter and the knowledge has been very recent in the interest of justice, it is a fit case in which both the amendment of the written statement under Order 6 Rule 17 CPC and also the admission of the additional evidence under Order 41, Rule 27, should be permitted by the Court. On the other hand, the contention has been raised on behalf of the respondents that the amendment sought by the appellant is belated as being made after, the expiry of 20 years from the date of the filing of the suit and even the knowledge alleged, is vague, not worthy of reliance and further there had been no controversy in the suit either of ownership or relationship as landlord and tenant and there being no such issue between the parties, thus it would not be a fit case for the exercise of powers under Order 6 Rule 17 CPC. It was further urged that this is a case in which admittedly the appellant and his predecessor continued as a tenant for long number of years and in fact, there has been a fresh deed of agreement between the present appellant and the plaintiffs and the appellant continued on account of the said agreement, thus he could not wriggle out the relationship admitted by him by means of a fresh rent deed. In view of that position under Section 116 of the Indian Evidence Act, the principles of estoppel applies.
(3.) THE main thrust of argument by Sri Rajeshwari Prasad, learned counsel for the plaintiff-respondents against the proposed amendment was that by it appellant was denying the title of the lessor (respondent) which in view of Section 116 of the Indian Evidence Act is not permissible. He urged a tenant under it is estopped from challenging the title of the lessor from whom he was inducted in possession and thus he should not be permitted to raise such plea by means of an amendment. It was also urged that since the appellant and his predecessors were inducted in tenancy initially by the predecessors of the respondents even before the alleged Waqf was created and even subsequently on account of fresh rent deed being executed on 3rd July, 1960 (Ext. 56) between the respondent and the appellant, he cannot be permitted to deny his title. The principles under Section 116 of the Indian Evidence Act are well settled. It stipulates that no tenant of person claiming through him during the continuance of tenancy be permitted to deny the title of such landlord who has inducted him in the tenancy. The question is whether on the facts and circumstances of this case Section 116 of the Evidence Act applies or not. Learned counsel for respondents firstly relied on the case of Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Coner Ltd., AIR 1937 PC 251. This case holds Section 116 does not deal with all types of estoppel which may arise between landlord and tenant. It postulates continuance of tenancy and with a beginning at a given date from a given landlord. It further held neither a tenant nor any one claiming through him shall be heard to deny that such landlord had no title to the property. For ready reference Section 116 of the Indian Evidence Act is quoted below : " Estoppel of tenant and of licensee of person in possession :-No tenant of immovable property or person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy a title to such immovable property, and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had title to such property at the time when such license was given ". The estoppel as referred in the section which binds the tenant and his successor is the denying of the title of the landlord at the beginning of the tenancy. Relevant passage of Kumar Krishna Prosad Lal Singha Deo's case (supra) relied by the respondents is quoted below : " Section 116, Evidence Act, does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant. It deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and 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. The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor any one claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property. This section applies against the lessee, any assignee of the term, any sub-lessee or licensee. 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. Nor does the principle apply to prevent a tenant from pleading that the title or the original lessor has since come to an end ", However, the last few lines of the aforesaid case is very significant where it was laid down that it does not prevent a tenant from pleading the title of the original lessor has since come to an and. Next reliance was placed on the case of Jaikaran Singh v. Sita Ram Agarwal, AIR 1974 Patna 364. Relevant portion is quoted below :- " An estoppel by what is known as estoppel by an entry into possession is one of such cases and its principle is engrafted in Section 108 (a) of the Transfer of Property Act. A tenant who has been let into possession by the landlord cannot deny his landlord's title so long as he has not openly restored possession to the landlord. Until such restoration or surrender of possession the tenant will be estopped even from contending that the landlord had ceased to have title subsequent to the commencement of the tenancy, though Section 116, Evidence Act would not, in terms apply to such a case ". ;