The question at issue in this second appeal relates to the applicability of section 116 of the Evidence Act. To appreciate this question, a brief resume of the relevant facts may be given. There is an open plot of land bearing Survey No. 361, situated within the area of Rattan Talao, Artillary Maidan Quarters of the City of Karachi. It is the admitted position that this land belongs to the Karachi Estate Board. The further admitted position is that the respondent obtained possession from the appellant, of a piece of land out of this plot, measuring nearly 55 square yards with some construction thereon. The transaction was in the nature of a lease, though Mr. A. H. Farooqi contends that the disputed property was given by the appellant to the respondent on the basis, to use his own words, of "royalty" This expression was explained by Mr. A. H. Farooqi in this way. "There was a hotel in the disputed property, which was let out by the appellant to the respondent on the daily royalty of Rs. 1-5-3 only". The Additional District Judge, whose judgment is impugned in the present appeal, however, has treated the transaction as one of lease. In my opinion, whether the transac--petition is in the nature of lease or in the nature of what Mr. A. H. Farooqi calls "royalty", is immaterial for the decision of this appeal, as would be evident from the further facts, which will be noticed in this Judgment. The District Judge has stated in his impugned order that the respondent paid rent or royalty, as the case may be, from 17-7-1957, on which date he was inducted into possession of- the disputed property, up to June 1960, and thereafter made default, whereupon the appellant Instituted distress warrant proceedings in the Court of Small Causes, Karachi. In these proceedings, the respondent raised objection as to the title of the appellant and, consequently, the appellant was directed to establish his title by filing a regular suit. This the appellant did, and, in this suit, he obtained a declaratory decree arming his title to the disputed property together with a decree for a sum of money on account of arrears of rent or "royalty". The respondent then went in appeal, which was heard and decided on 18-5-1966 by an Additional District Judge at Karachi. By this Judgment the trial Court's decree was reversed, and the reasons for doing this were that the disputed land vested in the Karachi Estate Board and both the appellant as well as the respondent were trespassers and, further, the respondent had received notice from the City Deputy Collector requiring him to remove the unauthorised construction on the disputed plot and to pay ground rent and penalty for unauthorised use of this property. It is further stated in the Impugned judgment of the Additional District Judge, and I have no reason to disagree with this statement, that the respondent paid the amounts claimed by the City Deputy Collector, and that, in fact, the construction stood forfeited in favour of the Government. Mr. A. H. Farooqi, disputes the correctness of this statement. However. I may reproduce the, following portions from the City Deputy Collector's notice issued in June 1960, which is Exh. 2-B :---- "The assessm ent and fine does not entitle, you to retain the said unauthorised construction which should please be removed within a month failing which all the standing structures materials etc. Shall be forfeited to Government under the provisions of the Land Revenue Code."
2. The main, rather the only, emphasis of Mr. A. H. Farooqi is on section 116 of the Evidence Act, which reads as 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 immovable property; and no person who came upon any immovable property by the licence of the person to possession therefore, shall be permitted to deny that such person had a title to such, possession at the time when such licence was given."
Mr. A. H. Farooqi says that the principles of section 116, of the Evidence Act have been applied consistently by the High Court and the Judicial Committee of the Privy Council, and, in this connection, he took me through several cases, that is, Mt. Bilas Kunwar v. Desraj Ran/it Singh and others (AIR1915PC96), Currimbhoy & Co. Ltd. v. L. A. Creet and others (AIR1933PC29), Eledate, Thavazhi and others v. Eliangattil Sankara Valia Rajah Avargal Styled Vinnilasseri Utaye Kandan Thava and another ((1918) 45 1 C 656), Vayyaprath Kunnath Valia Muhammad v. Chowakkaran orakkatteri Savakutti Keyi and others (AIR 1934 Mad. 197), Krishna Prasad Singh v. Adyanarh Ghatak and another (AIR 1944 Pat. 77). S. A. Waheed v. Dayal Singh College Trust Society (PLD 1955 Lah.
570), Fakir Sahibdino v. Court of Wards, Sind (PLD 1959 Kar. 777), Amir Bakhsh and others v. Khuda Yar (PLD 1960 Lah. 256) and Ahmad Shah Khan v. Abdul Barkat (PLD 1960 Dacca 107). There is no doubt that numerous other decisions can be referred to here to support the contention of Mr. A. H.
Farooqi that the Courts have consistently given effect to the rule laid down in section 116 of the Evidence Act.
3. However, if it was merely a question of applying section 11.6 of the Evidence Act, there would have been no difficulty at all in the way of the appellant. But the situation became changed when the City Deputy Collector gave notice to the respondent to quit the disputed land and remove the structure thereon and to pay ground rent and penalty. No one contends that the Karachi Estate Board, on whose behalf this notice and other notices were sent by the City Deputy Collector, is not the owner of this land. However, Mr. A. H. Farooqi is of the view that this position notwithstanding, the only course open to the respondent was to surrender possession of the disputed property to the appellant and to give notice to the appellant under section 108(n) of the Transfer of Property Act for the purpose of informing the appellant that the City Deputy Collector had taken certain action or was proposing to take certain action against the respondent.
4. Ordinarily, by reason of the rule laid down in section 116 6 of the Evidence Act, a tenant cannot deny the title of his landlord. But the legal position becomes very different when a third person, who is the real owner, intervenes, and, in that case, the relationship of landlord and tenant comes to an end if the tenant is evicted by this real owner. The eviction need not be actual, but may be only symbolic. In other words, if there is notice to quit from the real owner to the tenant in occupation of the disputed property, or if there is a threat of eviction from the real owner to such tenant, then it would be a case of symbolic eviction of the tenant by the real owner, which would bring to an end the relationship of landlord and tenant which is protected by section 116 of the Evidence Act. That this is the correct rule to be applied in cases of the nature before me, where section 116 of the Evidence Act has to be construed, reference may be made to two decisions of the High Court of Madras. The first of these decisions is Alaga Pillai v. Ramaswarnl Thevan and others (AIR 1926 Mad.
187), in which it was held that ordinarily a tenan is not entitled to set up the title of a third person even though the title is that of the Government, yet he is entitled to plead that he was evicted by the true owner, whether the true owner be the Government or a private person and that after such eviction he attorned to the true owner, in which case the person, who inducted the tenant into possession of the disputed property, cannot rely upon the rule of estoppel as contained in section 116 of the Evidence Act. Proceeding further, it was held that eviction need not be by actual disposses--sion of the tenant, but that, if the true owner is armed with a legal process for eviction, which cannot be lawfully resisted, even though the tenant is not put out of possession, the threat to put him out of possession amounts in law to eviction. The second case is that of S. Chokkalingam Pillai and others v. M. S. S. M. Ganesa Shammugasundaram Pillai (AIR 1951 Mad. 284), in which this rule was re-armed, and it was further held that to constitute eviction, a mere threat of eviction is sufficient, It may be added here that one of the decisions cited by Mr. A.
13. Farooqi, that is. Krishna Prasad Singh v. Idyanth Ghatak and another, itself supports this view of the applicability of section 116 of the Evidence Act. That this is so would be evident from the following passage ; "The estoppel disappears, however, if the landlord's title is extinguished subsequent to the Inception of the tenancy, or if there is eviction by title paramount. No physical dispossession by the person claiming paramount title is necessary. If the true owner is armed with a legal process for eviction, which cannot be lawfully resisted, even though the tenant is not put out of possession, the threat to put him out of possession amounts in law to eviction. If in such circumstances the tenant openly and to the knowledge of his landlord attorns to the true owner, the estoppel is gone."
5. Thus, the appellant before me cannot invoke section 116 of the Evidence Act, as the estoppel, which was created in his favour, has disappeared by the notice of eviction, or by threat of eviction, which the respondent received from the City Deputy Collector, in which notice it was made abundantly clear that the structure on the disputed land stood forfeited in favour of tee Government. If the respondent has remained in possession of the disputed property, it is by virtue off the fact that he has been making payment of ground rent and penalty to the true owner and is, in this way, saving his possession of this property, but the threat of eviction is still there, and therefore the rule of estoppel contained in section 116 of the Evidence Act is in--applicable to the circumstances of this case.
6. The conclusion is that this appeal fails. Since the present Judgment has proceeded on the construction of section 116 of the Evidence Act, about which there were certain doubts, I make no order as to costs.