P L D 1969 Dacca 319 (PLP)

T. Ali with Mahbubur Rehman, Maksudur Rehman, Bazlur Rehman Talukdar and Sultan Ahmed for Respondents Nos. 1 to 5 and

10. This second appeal is from the judgment of the Subordinate' Judge, 4th Court, Dacca allowing the appeal preferred by the plaintiff. The plaintiff respondent had filed a suit for ejectment, of the defendant school to vacate the premises. The case of' the plaintiff was shortly that the plaintiff is a College. It had' purchased the suit properties by a kabala dated 17‑5‑60 from one Pyari Mohan Das. It was alleged that the said Pyari Mohan Das and Abinash Chandra Das had acquired the suit properties with joint fund of Abinash Chandra Das and Pyari Mohan Das in the year 1943 when these two persons constituted a Hindu Joint Family and the deed of conveyance was made in the name of Abinash Chandra Das who was then the Korte of the family. Thereafter there was an amicable partition amongst these two persons and Promoda Sundari Das of all the ejmali properties and by a deed of amicable partition dated 15‑11‑53 Pyari Mohan Das became the sole owner of the disputed properties. The defendant had come to occupy the suit premises during the time of the predecessors of Abinash at a monthly rental of Rs. 100 per month while Abinash and Pyari raised it to Rs. 120 and the defendant allowed and accepted Pyari Das as sole owner and paid rent accordingly. Pyari later obtained a declaration from Court to the effect that he was 16 annas owner of the properties and thereafter the plaintiff purchased the same by kabala dated 17‑5‑60 and intimated to the defendant vide notice dated 21‑5‑60 to attorn to the plaintiff as landlord. The defendant thereafter on getting notice paid on 12‑5‑61 an amount of Rs. 1,280 as rent up to 16‑5‑60 but did not pay thereafter. The plaintiff therefore determined the tenancy with the expiry of January, 1964 and filed the suit on 25‑2‑1965 on the ground of default and as well as bona fide use and occupation and also for building and rebuilding the premises. The case of the defendant was that the two brothers Abinash and Pyari bad another brother Devendra Chandra Das. It was their further case that Abinash left for India and the properties vested with the other two brothers equally as Abinash took money in lieu of his share while going to India. Thereafter Pyari Mohan sold his half share to the plaintiff while Devendra Chandra Das sold away his share to the defendant by a registered deed dated l2th October 1963. Several issues were framed by the trial Court and the trial Court came to the conclusion on the evidence that the defendant's school had on compassionate grounds allowed the College accommodation to hold its classes at night in the premises which they had admittedly been in possession of as tenants under the Dasses. Thereafter the plaintiff acquired the right of Pyari Mohan Das but the admission of the defendants to pay the rent did not amount to estoppel as has been held in the case of Dhiyan Singh and another v. Jugal Kishore and another (A I R 1952 S C 145). The learned trial Court further held that the plaintiff who bad been a sub‑tenant under defendant bad failed to acquire all the 16 annas of the superior interest and also have failed to prove the relationship of land lord and tenant with the defendant school. It also held that the Custodian of the Evacuee Property was a necessary party in the suit. The suit was therefore dismissed by the trial Court. On appeal the judgment of the trial Court was reversed. Hence the second appeal. Mr. T. Ali appearing on behalf of the plaintiff College argued that the defendant is estopped from questioning the title of the landlord under the provisions of section 116 of the Evidence Act. Section 116 of the Evidence Act reads a9 follows: ‑ "

116. 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 immov able; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given." The important phrase in this provision of law is at the "beginning of the tenancy" From the facts of this case the original landlords of the defendant were the Dasses. Prior to the acquisition of Pyari's interest in the premises the plaintiff was sub‑tenant under the defendant. Subsequent to the acquisition of the plaintiffs interest the defendants also acquired prima facie the interest of another co‑sharer. Therefore in my opinion the provisions of section 116 will not apply in the facts and cir cumstances of this case. Section 116 does not preclude erstwhile a tenant from raising the plea that he has acquired the landlord's interest himself subsequent to the inception of the tenancy, the plaintiff appears to be in the possession as a co‑sharer of the landlords being a transferee from one of them. The defendant School has also acquired the interest of another alleged co‑sharer. In these circumstances a simple suit for ejectment in my opinion is not maintainable and the suit must be dismissed. The parties, if they so desire, should file a regular title suit for declaration of their respective title in the suit premises and have partition in accordance with their shares if any. The appeal is, therefore, allowed. The decree of the learned Subordinate Judge is set aside and that of the learned Munsif restored. There will be no order as to costs. Leave under clause 15 of the Letters Patent is refused. A. E /S. A. H. Appeal allowed.