A.K. Mitra, J.
1. This appeal has been preferred challenging the judgment and decree dated 31.7.1989 (being the order of remand) passed in Title Appeal No. 61/89 by the learned Assistant District Judge, Ulberia.
2. This appeal originates from a suit for ejectment of arrears of rent and mesne profits.
3. The case of the plaintiff as made out in the plaint in brief is that the suit property belong to him and he inducted the defendant as a tenant in it as a monthly tenant on a rental of Rs. 14/- payable according to Bengali calendar month. The defendant paid rent upto the month of Magh, 1389 B.S. and on and from Falgun 1389 B.S. till Chaitra 1392 B.S. He had been a defaulter in respect of payment and the plaintiff prays for eviction of the defendant from the suit premises and also claims the arrears of rent which comes to Rs. 532/-.
4. It has also been stated in the plaint that the plaintiff served notice upon the defendant under Section 106 of Transfer of Property Act and sent through Registered Post on 5.5.1986 demanding infer alia other things there on eviction of the defendant from the suit premises with the expiry of the month of Jaistha 1393. B.S. The defendant refused to accept such legal notice and has been occupying the suit premises since 1st Day of Asharh, 1393 B.S. as a trespasser. The plaintiff prayed for eviction of the defendant from the tenanted portion as well as recovery of arrears of rent upto Jaisth 1392 B.S. and to get possession thereof.
5. The defendant contested the suit by filing written statement and denying all material allegation leveled against him in the plaint. The definite case of the defendant as made out in the written statement is that he did not refuse to accept the alleged legal notice dated 5.5.1986 sent to him by the plaintiff by Registered Post. It is the contention of the defendant that registered legal notice was served upon him terminating the tenancy. He admits that he is a tenant under the plaintiff but pays rent according to English calendar month and not at a monthly of Rs. 14/- but Rs. 25/-. There has not been any rent receipt granted to him for such monthly rent. Moreover, the suit premises according to the defendant has already got vested in the State of West Bengal in L.A. Case No. 64 (Act II of 62-63 and the possession thereof has been taken over by the State. Thus, the defendant cannot be taken to be tenant under the plaintiff in suit premises. The defendant, therefore, prays for dismissal of the suit with costs. On the above pleadings the learned trial Judge framed the following issues:
1. Is the suit maintainable in its present form and prayer?
2. Is the suit barred by the principle of waiver, estoppels and acquiescence?
3. Is the suit bad for non-joinder of necessary patties?
4. Is the defendant defaulter in the suit premises?
5. Is the ejectment notice legal, valid and sufficient? Was it served property upon the defendant?
6. Has the plaintiff any right, title and interest over the suit premises?
7. Is the plaintiff entitled to get any decree as prayed for?
8. To what other relief, if any, is the plaintiff entitled?
6. The learned trial Judge on contest and after hearing, the learned counsel for the respective parties, decreed the suit with cost against the defendant and declared that the plaintiff will get an arrear of rent of Rs. 532/- as well as mesne profits, if any, from the defendant. The learned trial Judge directed the defendant to handover khas possession of the suit premises to the plaintiff within one month from the date of the order and a further direction to pay him the interest of rent and mesne profits. The learned trial Judge also granted liberty that in default the plaintiff to get the order executed through Court challenging the said Judgment and decree passed by the learned trial Judge. The defendant preferred appeal being Title Appeal No. 61/89. After hearing the learned counsel for the respective parties the learned appellate Court below allowed the appeal set aside the judgment and decree and sent back the suit to the Court below on remand with direction that the learned Munsif will dispose of the suit according to the directions in the body of the judgment and also according to law. The petition of the defendants for local inspection and adducing further evidence dated 19.9.1989 were allowed on contest with cost of Rs. 200/- payable by the defendant to the plaintiff in the Court below.
7. Against the said order of remand this appeal has been preferred. The learned counsel fort the appellant submits that the remand order which has been passed by the learned appellate Court below under Order 41 Rule 25 of the CPC is not an order of remand under Order 41 Rule 23(a) because findings of the trial Court has not been reversed. The learned counsel also submitted that the defendant has not even challenged the finding of the learned trial Judge on the point of service of notice under Section 106 of the Transfer of Property Act. The learned counsel also submitted that the learned appellate Court below cannot make order of remand without arriving at a conclusion that the decision of the trial Court is wrong and it is necessary to reverse for set aside the judgment and decree. According to the learned counsel for the appellate Court below is to consider the evidence on record and to give to a conclusion whether the finding recorded by the learned trial Judge cannot be separated on evidence on record. The learned counsel further submitted that the appellate Court below ought not to have reversed the judgment of the trial Court merely for the purpose of remanding the case and according to the learned counsel, remand should be made when the case falls within the four corners of Order 42 Rule 24 and 25 of the Code of Civil Procedure. The learned counsel for the appellant in this regard relied on the decision reported in (Gangi v. Gain Kaur and Ors.). The learned counsel submitted that in this decision one Hon'ble single Judge of Punjab and Haryana has observed that the condition precedent for remand is that the appellate Court must come to conclusion that the decision of trial Court is wrong. The learned counsel further submitted that in this case the Hon'ble Judge also observed that remand order should not be passed only for the purpose of remand and remand should be ordered when the case falls within the four corners of Order 41 Rule 23 or 23(a) of the Code of Civil Procedure and Rule 25 of the CPC.
8. The learned counsel further submitted that the learned lower appellate Court failed to appreciate the true scope of adjudication in a suit for recovery of possession under Section 106 of the Transfer of Property Act. The learned counsel submitted that the only thing the plaintiff/landlord is to prove in such a case is due service of a legal and valid notice to quit upon tenant. It has also been submitted that the defendnant/tenant challenged the finding of the learned trial Court regarding service of notice terminating the tenancy before the appellate Court below. The learned counsel submitted that the learned appellate Court below misconstrued the ratio of the judgment reported in 1987(1) CLJ 124. According to the learned counsel for the appellant, the tenant is estopped from challenging the interest of the inducting landlord in terms of Section 116 of the Evidence Act and if the tenant is estopped from challenging the title of the landlord who has inducted the tenant then the question of vesting and repayment of the Commissioner for ascertaining the extent of acquisition are irrelevant. In this context the learned counsel referred to and relied upon the judgment reported in (1997)7 SCC 14 (S. Thangapan v. P. Padmavathy) and according to the learned counsel in this decision the Hon'ble apex Court has held that the tenant cannot deny the title of the landlord who has inducted him and the person once inducted as a tenant of an immovable property by a landlord cannot later be permitted to say that the landlord at the beginning of the tenancy did not have a title to such property. The learned counsel also submitted that the same view has been adopted in the decision reported in (Barabani Coal Concern Ltd.) and the same view has also been considered in the latter judgment reported in 2001 WBLR 637. The learned counsel further submitted that the order passed by the learned appellate Court below is bad in law and should be set aside and the judgment and decree passed by the learned trial Court should be affirmed.
9. The learned counsel appearing for the respondent submitted that the defendant has categorically denied the service of the notice and the possession of the suit plot being No. 2224 of Mauza--Rangmahal was acquired by the State which is in the side of the defendant and this was subsequent to the induction of the defendant as tenant and as such the defendant can deny the title of the landlord since the landlord has lost his right, title and interest by a subsequent action of the Government. According to the learned counsel for the respondent in such a situation the defendant being the appellant in the first appeal has filed an application under Order 41 Rule 23 of the Code of Civil Procedure read with Section 151 and another application under Order 26 Rules 9 and 10 for the purpose of local investigation by a Commissioner and to prepare a case map to ascertain as to whether the structure where the defendant is in possession has fallen within the acquired land or not. The learned counsel for the respondent submitted that the learned appellate Court below rightly passed an order of remand and the appeal preferred by the plaintiff before this Court should be dismissed.
10. Now let us see the points of law which are to be decided in this appeal. The only points which are to be decided are as follows:-
1. Whether the defendant/tenant is estopped from challenging the title of the inducting landlord in a case whereby subsequent action of any statute the title of the landlord has been extended.
2. Whether the order of remand passed by the learned appellate Court below is based on proper appreciation of the evidence in its proper legal perspective.
11. Firstly, let us see in so far as estoppel of tenant as provided under Section 116 of the Evidence Act is concerned and the said provision is quoted therein below:-
'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 immovable property; 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 persons had a title to such possession at the time when such licence was given.'
12. The answer of such question has been given in paragraphs 9, 14, 15 and 16 of the decision referred to and relied on by the learned counsel for the appellant himself, which is reported in : AIR1999SC3584 (supra) the said paragraph is quoted herein below:-
'9. Having heard learned counsel for the parties and after perusing the orders passed by the Rent Controller and the appellate authority we find them concurrently held that the denial of title by the appellant was not bona fide and the default was willful. They also held that the building is required for demolition and reconstruction. Challenging these findings the learned counsel for the appellant argued with vehemence that the authority should hot have addressed itself to the question of title, as it had no jurisdiction to decide the question of title hence approach of the appellate authority was against the jurisdiction vested in it under the law. Learned counsel referred to the case in LIC of India v. India Automobiles & Company to contend that the question of title cannot be gone into in these proceedings. There is no dispute on this proposition neither is it disputed by the learned counsel for the respondent nor has this question of title been decided in these proceedings. It is only when a tenant denies title of the landlord, the Court has to scrutinise the evidence and come to the conclusion prima facie, whether the denial of title is bona fide or not. It is in this context of course the Court has to go into the evidence to test the veracity of this denial of title. Thus, any finding in this regard could not be a finding on the question of title. There is neither any claim of title set up by the respondent nor is there any such issue between the parties in these proceedings and hence recording of any evidence in this regard is only to be understood for a limited purpose of testing the bona fide of the tenant to deny the title of the landlords.'
'16. Now reverting to the facts of the present case, we find, admittedly the appellant was inducted into the tenancy by the predecessor of respondent No. 1 in 1962 and he continued to pay rent to respondent No. 1 since 1980. There is no case or any evidence that since thereafter respondent No. 1 lost his title to the disputed premises. On the contrary denial of title in the present case is based on some information that the Devasthanam is the owner of the property since the inception. No case, the Devasthanam became the owner of the property after 1962. In other words the denial of title by the appellant against his landlord is from the very inception. This is forbidden under Section 116 of the Evidence Act. So, both on law and facts we do not find the submission for the appellant sustainable. All the Courts below rightly concluded that the denial of title was not bona fide and hence non-payment of rent to (sic) by him amounts to wilful default.'
13. In the instant case it is admitted that the tenant-defendant did not dispute the title of the landlord on the inception or, induction but by operation of the statute the landlord lost his title and it is the allegation of the defendant-tenant that the portion in which the tenant is in occupation has acquired by the Government and it has vested in the State; Now, in such a situation whether the claim of the tenant-defendant is bona fide or not pan be considered in the light of the observations made in paragraphs 14 and 15 as quoted herein below:
'14. This section puts an embargo on a tenant or an immovable property, during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy. The significant words under it are 'at the beginning of tenancy'. This is indicative for the sphere of the operation of this section. So a tenant once inducated as a tenant by a landlord, later he cannot deny his landlord's title. Thus, the principal of estoppel debars a tenant from denying the title of his landlord from the beginning of his tenancy. However, defective the title of such landlord could (sic may) be, such tenant cannot deny his title. But subsequent to his indication as tenant if the landlord looses his title under any law or agreement and there is threat to such tenant of his eviction by subsequently acquired paramount title holder then any denial of title by such tenant to the landlord who inducted him to the tenancy will not be covered by this principle of estoppels under this section. In Mangat Ram this Court held: : AIR1987SC1656 :
The estoppels contemplated by Section 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows with a tenant is not estopped from contending that the title of the lessor had since came to an end.' 15. Similarly in D. Satyanarayana also this Court holds in : [1988]1SCR145 :
'4. The rule of estoppel embodied under Section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlords title, however defective it may be, ... Similarly, the estoppels under Section 116 of the Evidence Act is restricted to the denial of the title at the commencement of the tenancy.'
14. Here the tenant was inducted and at the time of induction he did not dispute or deny the title of the landlord. When he came to know about the acquisition by the Government in so far as his tenanted portion is concerned, he disputed that title of the landlord. Therefore, provision of Section 116 of the Evidence Act cannot be said to be applicable here. If the land is acquired the landlord will get compensation and the tenant also cannot object to such acquisition. In that view of the matter immediately the acquisition takes place, the landlord looses his title and then he cannot say that the landlord-tenancy relationship exists. The learned appellate Court below rightly referred the decision reported in 1987(1) CLJ page 124 (Maharani Kashiswari College v. B. Mukherjee). In this decision the Hon'ble Division Bench of this High Court clarified the position of landlord and tenant when acquisition of a land of the landlord takes place where there is tenant. Therefore, in my view, the Estoppel as provided in Section 116 of the Evidence Act is not applicable here.
15. Now, remains the question of remand by the appellate Court below Order 41 Rules 23A of the Code of Civil Procedure provides 'where the Court from whose decree and appeal is preferred has disposed of the case otherwise then on a preliminary point, and the decree is reversed in appeal and retrial is considered necessary the appellate Court shall have the same powers as it has under Rule 23.'
16. In the instant case the learned appellate Court below has set aside the judgment and decree not on preliminary point but otherwise directed remand of the suit to the learned Munsif. There cannot be any illegality in such a case. In my view, when the facts of acquisition, atleast a portion of the land has been admitted by the landlord it must be ascertained through local investigation as to whether the tenanted portion has been acquired or not and if that is so then landlord-tenancy relationship between the plaintiff and defendant does not exist any more. In my view, the learned appellate Court below did not commit any illegality or mistake in sending the suit back on remand to the learned Munsif.
In view of the discussion made above, the instant appeal, therefore, fails and is dismissed. Because of long pendency of the case the trial Court is directed to dispose of the suit within a period of six months from the date of receipt of the records.
Let the lower Court Records be sent down to the Courts below expeditiously. In the facts and circumstances of the case, the parties are to bear their own respective costs.