# Krishna }.Jrasad Lal Singha Deo v. Baraboni Coal ()oncern

- **Citation:** [1962] 3 S.C.R. 910
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** K. N. W.aNOHoo, IC C. D.as GUPTA, J.C. Shah, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishna-jrasad-lal-singha-deo-v-baraboni-coal-oncern-2403
- **Pages:** 18

## Headnote

Atlornmtnt-By tenant" in. favour of ptreons claiming but
having no titl!.-.:::-How made-Payment of rent if tteceeaaryFinding of /Mt-Interference by High Court in second appeal.
In the prescn t suit for possession the courts found that
none of the parties had a legal title to the propcrfy in the
dispute and in determining which of the parties had possessory
iitle to the said property the trial court found th~t on the
death of the daughter of the original owner the so called
reversioners got a Kodaha (Kabuliyat) executed in their favour
by two tenants of the last possessor of the property and themselves exe~uted a CO\v]e in their favour but the said tenants did
not pay an() rent to the so-called revcrsioners.
The trial c,ourt
held that though there was a kadapa by which it might be
said that the tenants \vho were there from before had attorned
t6 the so~called rcversioners it \Vas a mere paper transaction
as no rent was paid.
On appeal the first appellate court
relying on the Kadapa and cowle found that the so-called
~reyersioners got peaceful possession of the property but did.not
enter into the question whether any rent was paid to them by
the tenants. On second appeal the High Court held that the
real question was whether the tenants really attorned to the
rtversioners and as the first appellate court did not cdnsider
whether there \Vas real attornment by payment of rent sent
back the case to the said court for a fresh finding on that
question whereupon that court returned a finding in favour of
the respondent on the question of possession. The contention
of the appellant on appeal by special leave was that the High
Court had no jurisdiction in second appeal to reverse a finding
ofJact arrived at by the first appellate court and as the High
Court 'indirectly reversed that finding of fact by calling for a
further finding on the question of possession the judgment of
the High Court should be set aside.
Qeld (per K. N. Wanchoo, K. C. Das ,Gupta
and
T. C. Shah, JJ.) that if the so-called revcrsioners had title in
ihe sense that they were the next revcrsioners, then attonnent
by the'l(adapa would have been sufficient but where a person
in whose favour attornment had been made had no title, a
n1ere paper attornmcnt would not be sufficient unless there~
was a rea\ attornment in the licnse that the person who
attorncd a so paid rent voluntarily or unrier a decree to the
-'
-
•
3 S.C.R.
SUPREME COURT REPORTS
!Jll
person in \Vhosc favour the attornment was made. The first
appellate court had
merely considered the paper attornrnent and had not considered the
evidence as
tr>
the
payment of rent which \~as there and had been considered
by the trial court.
The High Court ""'.as, therefore, Ju_~tified
in calling for a finding on a question which was not considered
by the lower appellate court.
Per Raglmbar Dayal, J .-Once a tenant agreed to accept
the person claiming title fron1 the previous landlord, that
amounted to attornment in favour of the ne\v landlord and
was no more dependent on the future conduct of the tenant
by way of payment of rent or otherwise.
Krishna }.Jrasad Lal Singha Deo v. Baraboni Coal ()oncern,
(1937) L.R. 64 I. A. 3ll, referred to.
There was no good reason why the possession of tenants
\vho had attorned to a person having no title be not considered
to be his possession in determining whether he had preferential
possessory title to that of another who too had no title.
The mere fact that certain evidence had not been closclv
scrutinised or in other \Vords, not scrutinised in a manner i;1
which the second appellate court des.ired it to be scrutinised,
could not be a ground for interference ,,,.ith a finding of fact in
second appeal.
In the present case the Kadapa the terms of which were
different from those of the old one, \Vas not a deed of attornment merely substituting the new landlord in place of the old
but was a document accepting fresh tenancy but as the new
lessors had no title to the property the lease execut

## Text

1961
September 29,.
. •
910
SU~REME COT:JRT REPORTS
[1962]
UPPALAPATIVEERA VENKATA
SATYANARAYANARAJU AND ANOTHER
v .
JOSYULA HANU!lfAYAMMA AND ANOTHER
(K. N. W.aNOHoo, IC C. D.as GUPTA, J.C. SHAH
and RAGHUBAR DAYAL, JJ.)
Atlornmtnt-By tenant" in. favour of ptreons claiming but
having no titl!.-.:::-How made-Payment of rent if tteceeaaryFinding of /Mt-Interference by High Court in second appeal.
In the prescn t suit for possession the courts found that
none of the parties had a legal title to the propcrfy in the
dispute and in determining which of the parties had possessory
iitle to the said property the trial court found th~t on the
death of the daughter of the original owner the so called
reversioners got a Kodaha (Kabuliyat) executed in their favour
by two tenants of the last possessor of the property and themselves exe~uted a CO\v]e in their favour but the said tenants did
not pay an() rent to the so-called revcrsioners.
The trial c,ourt
held that though there was a kadapa by which it might be
said that the tenants \vho were there from before had attorned
t6 the so~called rcversioners it \Vas a mere paper transaction
as no rent was paid.
On appeal the first appellate court
relying on the Kadapa and cowle found that the so-called
~reyersioners got peaceful possession of the property but did.not
enter into the question whether any rent was paid to them by
the tenants. On second appeal the High Court held that the
real question was whether the tenants really attorned to the
rtversioners and as the first appellate court did not cdnsider
whether there \Vas real attornment by payment of rent sent
back the case to the said court for a fresh finding on that
question whereupon that court returned a finding in favour of
the respondent on the question of possession. The contention
of the appellant on appeal by special leave was that the High
Court had no jurisdiction in second appeal to reverse a finding
ofJact arrived at by the first appellate court and as the High
Court 'indirectly reversed that finding of fact by calling for a
further finding on the question of possession the judgment of
the High Court should be set aside.
Qeld (per K. N. Wanchoo, K. C. Das ,Gupta
and
T. C. Shah, JJ.) that if the so-called revcrsioners had title in
ihe sense that they were the next revcrsioners, then attonnent
by the'l(adapa would have been sufficient but where a person
in whose favour attornment had been made had no title, a
n1ere paper attornmcnt would not be sufficient unless there~
was a rea\ attornment in the licnse that the person who
attorncd a so paid rent voluntarily or unrier a decree to the
-'
-
•
3 S.C.R.
SUPREME COURT REPORTS
!Jll
person in \Vhosc favour the attornment was made. The first
appellate court had
merely considered the paper attornrnent and had not considered the
evidence as
tr>
the
payment of rent which \~as there and had been considered
by the trial court.
The High Court ""'.as, therefore, Ju_~tified
in calling for a finding on a question which was not considered
by the lower appellate court.
Per Raglmbar Dayal, J .-Once a tenant agreed to accept
the person claiming title fron1 the previous landlord, that
amounted to attornment in favour of the ne\v landlord and
was no more dependent on the future conduct of the tenant
by way of payment of rent or otherwise.
Krishna }.Jrasad Lal Singha Deo v. Baraboni Coal ()oncern,
(1937) L.R. 64 I. A. 3ll, referred to.
There was no good reason why the possession of tenants
\vho had attorned to a person having no title be not considered
to be his possession in determining whether he had preferential
possessory title to that of another who too had no title.
The mere fact that certain evidence had not been closclv
scrutinised or in other \Vords, not scrutinised in a manner i;1
which the second appellate court des.ired it to be scrutinised,
could not be a ground for interference ,,,.ith a finding of fact in
second appeal.
In the present case the Kadapa the terms of which were
different from those of the old one, \Vas not a deed of attornment merely substituting the new landlord in place of the old
but was a document accepting fresh tenancy but as the new
lessors had no title to the property the lease executed by the
created no right.
CIVIL ArPELLA'l'E Jum~DlC'l'IUN: Civil Appeal
No. 459 of l!J58.
Appeal by special leave from the judgment
antl decree dated June :2!l, 1955, of the former
Andhra High Court in Second Appe il No. 730
of 1949.
A. V. Viswanatha Sastri and '1'. V. R. Tatachari,
for the appellants.
K. Bhimasankaram and G. Gopafokrishnan,
for the respondents.
l!J61. September 29.
The judgment of
Wanchoo, Das Gupta and Shah, JJ., was delivered'
by Wanchoo, J .. Dayal J., delivered a separate
judgment.
1P61
Uppalapali Veera
VenJ:ata
Sa(Yanarayanaraju
v,
Jo3yula
llanuma;·amma
1961
Uf11Mlapa1i Vtua
Vtnka1a
S~rcnarayanaraju
v.
,1Qsy6'ia
ll«n~'"7lma
Wano\oo J.
!J 12
SUPRE~IE OOURT REPORTS
[l!J62)
'VA}ICUOO, J.-This is an appoal by special
loave from the judgment and decree of tho Madraa
High Court. Tho appellants wero defendants in a
suit brought by the rnspondents for posseBSion of
certain properties whi"h originally belonged to one
Subbarayudu. The case of the rcspoudents wa.a
that Subbaro.yudu executed a will dated September
15, 1885.
Under that will tho property pa.ssed on
his death to his wife with life interest and after
her death absolutely to his <laughter Krislmavenam·
ma who was in enjoyment thereof till her death
in l!l33.
The daughter executed a will on March
24, 1933, in favaur of her step son Nagaraju who
came into possession of tho property on her death
soon after. Nagaraju in his turn executed a will on
August 16, 1933, by which he gave life interest to
his wife who was
the first plaintiff (now the first
respondent bofore us) and thereafter the property
was bequeathed absolutely to his daughiere. Tho
second respondent 1s tho tenant of the first
repondent. Nagaraju died
sorm after eiwcuting
tho will and tho case of the first respondent was
that she came into possession of the property on
his death and was in enjoyment thereof till she
was forcibly ejected in I !J43 by the appellants who
claimed to be the purchasers of the property from
Scotarnmayya and Ramakotayya who in their turn
claimed to be tho reversioners
<if Subbarayudu.
Consequently, the suit out of which the present
appeal has arisen was filed
m June, 1944, for
posseBBion and mesne profits.
The suit wa.a resisted by the appellants, 11nd
their ease was that they had purchased tho property
from the revcrsioners of Subbarayudu in 1942. It
was further contended on their behalf that on tho
death of Kriehnavenamrua the reversioner& came
into posseBSion of tho property through tho tenants
who had been in poBBession
from before undor a.
]tjase grante<l to them by Kr.ish~yenamma.
The~
tcnanUl remained in poss08810n till tho sale dee<l m
favour of tho appellants and attorned to the
--
•
•
' .
..-----. .
i
'
3S.C.R.
SUPREME COURT REPORTS
913
appellants thereafter. Later
the
two
tenants
surrendered possession to the appellants who thus
came into actual possession of the property in suit.
The 9ppella.nts also contended that the so-called
will executed by Subbarayudu was a forgery and
the first respondent had no title to the property.
On these pleadings, tbe main point that arose
for decision was whether the first respondent had
title to the property and was in possession of it till
she was dispossessed in 1943. Further the title set
up by the appellants was also gone into and their
claim as to possession came up for consideration.
The trial court found that the will said to h-.ve
been executed by Subbarayudu was not proved.
In con~equence of this finding, it came to the
conclusion that the title of the first respondent
which depended upon the proof of this will was not
a legal title. Further it found that it was not
established that Seetaramayya and Rmnakotayya
were the next reversioners to the estate of
Subbarayudu. The result of these findings was
that no title was found in either party. These
findings have been upheld by the Subordinate
Judge and also by the High Court in second appeal
and therefore it must now be accepted that both
the parties have no title to the property in suit.
The main contest therefore centred round
possessory title which was also asserted by both
the parties in the trial court. On this question the
trial court found that after the death of Krishnavenamma, the name of the first respondent w:is
entered in the revenue papers in her place but the
property was actually in possession of the two
tenants by virtue of the lease executed in their
favour by Krishnavenamma in 1929 for six years.
Therefore, there was a
kind of race between
respondent No. 1 and Seetaramayya and Ramakotayya who set themselves up as reversioners to
obtain the favour of these two tenants, and the socalled reversioners managed to obtain in June,
1933, a kadapa from the two tenants for five years
1961
Uppalapati Vura
Vimkata
SatyanartfPQllaraju
v.
Jcsyula •
Hanumayamma
Wanchoo J.
L-'p/Jtl/apati Vttr11
Venkata
S•tya11arayanarajll
V.
Josyula
Jlanuma;·um,na
II ancho• J.
014
SUPREME COURT REPORTS
[l9S2]
ending with May, l!J38.
They also !'Xecuted &
CO'll'le in favour of the tenants anrl both these documents wero registered in July, 19:l3.
But the finding of the trial court was that there was no payment of rents in the year; 1933 and 193 ! and that
the real fight for the land started towards the end
of 1035 or the beginning of 1936 and a,lthough
documents were taken from the tenants by tho so·
called re.-ersioners no actual payment of rent was
made to them. It al8o held that in this game of
winniug tho favour of tho tenants the real gainers
were the tenants who paid no rent to either tho first
rCllpondent or the so.railed rcvcrsioncrs. The trial
court further hrlcl that it was in HJ3G that the first
respondent managed to dispossess tho tenants
forcibly through her tenant Aloka Subbarao who
seems to have
been a person of some infiuenoe in
the village.
Thereafter the first re~pon<lent remained in
poBBession through her tenant till bhe
was dispossessed in November, lU-13, forcibly by the
present appellants after they had purchased the
lands from tho so-called reversioncrs. In effect,
thorefore, the finding of the trial court was that
neither party was in possession of the property up
to 1936 and it was
onlv in 1936 that the first
respondent camo int" possession through
l\1ok11.
Suhbarao by dispossessing the tenants \vho were
holding the land from the time of Krishnavenamma
ancl had paid no rent to anyborly after her death.
In consequence tho
trial court held that as the
possession of the first respondent was earlier she
was entitled to sucl'ccd at least on the ground of
possessory title. Incidentally it also held that
although the title of the first rospondent was defecti \·c for the reason that Krishnavenamma did not
hav<' ab~olute right in the property it "·as not void
but was only voirlalile at the instance
of the
nearest reversioner or some one else having better
title, which the appellants or their predece86orH·
in-interest did not have. In the rcault the suit was
decreed with mesne profits.
--
..
•
3S.C.R.
SUPREME COURT REPORTS
915
This was followed by
an appeal to the
Subordinate Judge by the present appellants. We
have already said that the Subordinate ,Judge upheld the findings of the trial court on the title of
the parties and came to the conclusion that the title
of neither party was proved. He also rejected the
view of the trial court that the first respondent at
any rate had some title though defective it might
be. He then addressed himself to the question of
possessory title and considered whether the finding
of the trial court that the first respondent was in
possession earlier than the appellants and was
therefore entitled to recover possession on the basis
of her possessory title, was correct. He came to
the conclusion that the so-called reversioners had got
possession of t!ie property peacefully immediately
after the reversion opened in 1933 and therefore
the appellants were entitled to maintain their
possession as they derived their title from the socalled reversioners who had earlier possession than
tho first respondent. In coming to this conclusion
the Subordinate Judge relied on the Kadapa
executed by the tenants in favour of the so-called
reversioners in June, 1933, and the cowle executed
by the so-called reversioners in favour of the
tenants.
But the Subordinate Judge did not
consider the further question which was considered by the trial court, namely, whether after the
execution of the Kadapa and the cowle the socalled reversioners over collected rents from the
tenants who were there from the time of Krishna·
venamma between 1933 and 1936.
This question
had been specifically considered by the trial court
and it had come to the conclusion that t,hough the
kadapa and the wwle had been executed they were
mere paper transactions and the so-called reversioners had never collected rents during this period
and the tenants had never paid the rent to anybody
during this period.
The
Subordinate Judge,
however, allowed the appeal and dismissed the
1961
Uppalapati Veera
Venkatri
Satyanaray:maraj 11
v.
Josyula
!JanwnaJ•amma
U'anclu10 J.
VH•lapati Yt,,.o
V.mkalo
SS{!CMT~.ran.oroju
v.
JoJpl«
Ha~mmo
IV an<hoo ].
916
SUPREME OOURT REPORTS
[1962]
suit on tho view taken Ly him that the so-called
rcvorsioncrs had como into possession t of tho
property after tho death of Krishnavenamma end
wero forcibly ejected in 1!)36 by l\foka Subbarao as
the tenant of the first respondent.
This was followed by a sccrmrl appeal Ly tho
respondent:<>.
The High Court took the view that
the finding of the Subordinate Judge that the BO·
called rcveraioners were in possession from 1933
to 1930, could not be accepted .. According to the
High Court, the main question was whether the tena·
nts who were there from before really attomed tot.ho
roversioners. The High Court then went into som o
of the evidence and hold that various matters
which should have received the ntt{'ntion of tho
Subordinate ,Judge in coming to a conclusion on
this import.ant point of fact wcro not considered
hy him; therefore it \Vas not prepared to accept
tho finding of the Subordinate ,Judge in second
appeal and requircrl the Subordinate Judge to
submit a fresh finding on this question. When the
matter went baok to the Subordinate Judge he
<'Xamincd the <'ntirc evidence and came to tho
conclusion that the so-called roversionors in order
to create evidence of possession had taken the
kadapa from the tenants after winning them over
to their ~ide, perhaps by a promise not to collect
rent from them. He also came to tho conclusion
that the
so-called
revcrsioners
were
not in
posses;;ion of the property after the death of
Krishnavenamma from l!J33 to 193() and that it
appean·d that during that period neither party
was in possession and only the tenants who were
there from the time of Krishnavenamma continued
to be in posseSHion but without paying rent to
anybody. Ho further hold that in the circumstanceH the possession of the tenants could only
be treated as that of the rightful owner which
neither party was in this case. Finally he camo
to the conclusion that it was for the firat timo in
1936 that Moka Subbarao took possession of the
r
)
3 S.C.R.
SUPREME COURT REPORTS
917
land as the tenant of the first respondent and the
appellants got possession for the first time in l 94 3.
Therefore he held that as the first respondent's
possession was earlier it must be restored. This
finding was accepted by the High Court with the
result that the second appeal was allowed and th11
order of the trial court restored. The appellants
have come to this Court by special leave.
The main contention urged beforl'us on behalf
of the appellants is that the High Court had no
jurisdiction in second appeal to reverse the finding
of fact arrived at by the first appeal court as to
possession, and inasmuch as the High Court indirectly reversed that finding by calling for a
further finding on the question of possession, the
judgment of the High Court should be set aside as
without jurisdiction. On the other hand it has
been urged on behalf of the respondents that
though the first order of the High Court calling for
a finding looks as if it was interfering with a
finding of fact as to possession, a close examination
of the circumstances and the findings of the trial
court and the first appellate court will show that
in fact there was no finding by th~ first appellate
court on the crucial question which arose in the
suit resting on possessory title and therefore the
High Court was justified in calling for a finding in
the matter. It is urged that where the case is based
on possessory title only, a party must establish
effective possession before it can succeed on its
possessory title. On the question of effective
possession the trial court had found that though
there was a kadapa by which, it may be said, the
tenants who were there from before had attorned
to the so-called reversioners, that was a mere
paper transaction and the tenants never paid
rents to the so-called reversioners; as such the
reversioners never
had effective
possession
between 1933 and 1936. According to the respondents, this finding of the trial court should have
been specifically considered by the Subordinate
1'61
Uppalapati Veer•
V1nkala
Saryanarayanaraju
v.
Josyula
Hanuma_:vammo
fVa nchoo J.
11141
UpPolapali Vur•
Ynsk«ta
Sa(Yan'1ra.1a11araju
v.
Joryuia
llani"n~rmnma
'
918
SUPREME COURT REPORTS
[l!l62)
Judge; buta.11 that the Subordinate Judge did was
to rely on the karhpa and hold on the basis of
that document that the so-oa.llod rcvcrsioners had
come into possos.~ion poacefu\ly. It is said that
"1.vhatover may be Raid about tho viiluo of attornlhont ma<lo in favour of the true owner the
pnsition is different where attornment is in favour
of a person who is not tho true owner.
In such n.
r,ase beforp tho person in whose favour an attornmcnt has been made can
establish that his
posscsHion was offel'.tive it must
al~o bo shown
tha.t he was pair! rent by the tonants who a.ttorned
to him.
Therefore, it is urged that as thoro was
no finding by tho Suhoridnatc Judge on this crucial
question the High Court m1.s justified in sending
the case back to the Subordinate ,Judge
for a
findin!! in this regarcl.
As RUch, it is urged that
this is not a Cl\se where tho High Court lmd roveracd a finding of fact by tho first a.ppellate court
which it is admitted it lrns no jurisdiction to do;
but it is a oase whP-re there waA no finding on tho
crucial qm•stion of fact by the Subordinate Judgo
and tho High Court therefore had jurisdiction to
call for a finding in this roga.rd.
\Vo arc of opinion that though on a first
rcaclin~ of the High Court judgmf'nt calling for a
finding it does look as if tho High Court was reversing the finding of fact as to possession when
it calletl for a further finding on the qnostion, a.
closer examination of its judgment calling for a.
findin)l 11.long with the findings by the lllunsif and
the . Su bor<linatc .Judge on tho crucial question
involrncl in this case shows that it held that there
was no finding by the Suhordinate Judge on that
crucial question, though the trial court had given
a finding in favour of the first respondent in that
respect.
As both partios were rolying on posaesory title, it was m1cessary that they should prove
effective possflssion over the property in order to
suecocd on the bMis of pos.~esaory title. By effective
possession we mean either actual possession or
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•
3 S.C.R.
SUPREllfE COURT REPORTS
919
possession through a tenant who must have paid rent
voluntarily or under a decree to the person claiming possessory title. The kadapa by the previously
existing
tenants
in
favour of the
so-called
reversioners has all along been treated as an attornment by all the three courts and we therefore
accept it as such. If the so-called reversioners
had title in the sense that they were the next
reversioners, then attornment by the kadapa would
have been sufficient to establish their possession over
the property; but where the person in whose favour
the attornment had been made has no title, a mere
paper attornment would not be enough to establish
as against third parties the possession of the person
in whose favour attornment has been made and it
will still have to be shown that the possession was
effective in the sense that the person who attorned
also paid rent voluntarily or under a decree to the
person in whose favour he made the attornmont.
The fact that the tenants who had executed the
kadapa may be estopped from challenging the title
of the so-c3lled reversioners, if a suit was brought
against them makes no difference to the position
stated above.
The finding of the Munsif was that
no rent had been paid to anvone bv the tenants;
further no suit had been bro.ught by the so-ralled
reversioners to recover the rent before the first
respondent got into possession.
The
kadapa
therefore remained a mere paper transaction and
attornment through it would not be sufficient to
put the so.called reversioners in effective possession
and confer possessory title on them which could
he taken advantage of by the appellants to show
earlier possessory title as against the undoubted
possessory title of the first respondent from 1936.
It seems to us that, that is what the High
Court meant when it said that the crucial question
in this case was "whether the tenants really attorned to the reversioners". We emphasise the word
"really" which shows that the High Court was not
satisfied with mere paper attornment which was all
1961
Uppal~li Vttra
Venkata
Sat_;•anara)ianarajll
J rryu[a
lianumayamma
Jt'anchoo J.
I
1961
UP/Hfla/>«li Vt~r•
v...w.
S.tyciat.t)'O•'•}U
v.
Josyu/•
11--
W.whoo I.
'
920
SUPREME COURT REPORTS
[1062]
tha~ was found by the Subordinate Judge and
rightly required in a case based on poBSessory title
only that the attornmcnt should be a. real attorn.
ment, i. e., one in which tho person a!torning
ahoul<l also ha. vo paid rent either "l'oluntarily
or under a decree to the person in
,,.hoee
favour
the
attornment
was
made.
The
Subordinate Judgt>, however, had merely considered
tho paper attornment and had not considered the
evidence as to payment of rent, which was there
and which had been considered by tho trial court.
The trial court had come to the conclusion after
considering the evidence relating to payment of
rent that in fact there was no payment though tbe
attornment was made through the kada.pa.
Tho
trial court therefore held that from 1D33 to 1936,
only the tenants were in possession but they never
paid rent to anybody and thus
neither party
was in possession thrvugh them. This aspect of
the
finding of the
trial
court
was
completely overlooked by the Subordinate Judge
who decided the question of posseBSion merely on
the paper attornment (namely, the kadapa). What
the High Court seems to have meant when it said
that the real question was not properly considered
by the Subordinate Judge therefore was that he
was moroly satisfied with paper attornmont in a
case based on posse8Sory title which waa not enough
in law and had not given any finding as to whether
the attornment was a reality in the sense that the
rent was pa.id and would thus result in effective
posst•BBion of the so·ca.lled revorsioners through the
tenants. It seems to us therefore that ~hough the
form in which the High Court expreBl!Cd itself when
it called for a. finding was not happy, what the
High Court. really did was to hold that there waa
no finding 'by the Subordinate Judge on tho question of effective poBBeBBion of the so-called reversioners after a oonaideration of the evidence relating to pa)'1'1ont of rent etc.; it therefore ca.lied for a
finding on the question of effective possession after
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3 s.c.R. SUPREME COURT REPORTS
921
consideration of the entire evidence. This in our
opinion the High Court was justified in doing because the trial court had considered the entire
evidence and had come to the conclusion that the
so-called reversioners had no effective possession
and the attornment through the kadapa was a mere
paper transaction. In these circumstances it cannot
be said that the High Court had no jurisdiction to
call for a finding.
It is not disputed that if the High Court had
jurisdiction to call for a finding the final order of
the High Court allowing the appeal based on the
finding which was submitted was not open to
question.
We therefore dismiss the appeal but in the
circumstances pass no order as to eosts of this Court.
RAGHUBAR DAYAL, J.-I agree that the appeal
be dismissed, but for different reasons.
If Narasimhulu and Ramudn alia.s Mark, who
were in possession of the land in suit under the
lease, Ex. P-6, dated May 6, 1929, for six years
from Josyula Krishnavenamma, had attorned to
Ramakotiah and Seetharamiah by executing the
Kadapa (Kabuliat) Ex. D-4, on March 16, 1933, I
do not think that any further payment of rent was
necessary to make the attornment effective and am
of opinion that in that case the view of the learned
Subordinate Judge to the effect that the predecessors-in-interest of the defendants-appellants were
in possession through their tenants over the land
in suit, w:i.s correct. Tho High Court did not decide
by its first order remitting the point No. 2, viz.,
'whether the plaintiffs got into possession of the
1mit properties earlier than the defendants and their
predecessor-in-title and whether they are entitled
to recover possession of the suit properties on the
strength of their possessory title' for a fresh finding
that the attornment by the execution of the deed
of Kadapa was not good attormnent without the
executants paying rent to Ramakotiah and Seetharamiah. The learned Judge simply said :
1961
Uppalapati Vura
Venkata
Satyana1ayanaraju
v.
Josvula
Hanmfiayamma
Ra1hubar D.,al J.
1961
L'ppalapati Vura
Vmkata
Sa(yonorayanaraju
v.
Josytda
Ilanumayammo
Rt1thu6tzr /)ayaJ J.
922
SUPREME COURT REPORTS
"Apa.rt from the question whother the
principle of law adopted by tho learned Judge
iR well.founded or not, on which I express no
opinion 11.t present, it seems to mo that the
finding of the learned J udgo that the first
defendant had prior possession from 1!)~3 to
1936 cannot be accepted in second appeal."
'fhe finding about tho prior po.qscssion, of the learned Subordinate Judge ww not accepted by the High
Court because it considered that the Subordinate
,Judge had not closely scrutinized the cvidPnco in
the case on tho very crucial question in
issue
between the parties. This crucial question wM forinulat.e<l as 'whether the tenants really attorned to
the reversioners and tho re,·ersioners recognized
the pnssession of the tenants as theirs.' \Vhat wa11
moant by the High Court from this question, is not
clear to me. If the oxccution of tho deed, Ex. D-4,
amounted to the attornment by the tenants in
favour of Seetharamiah and Ramakotiah,
who
claimed to be tho heirs of Krishnavenamma, and
the execution of the cowlo, Ex. D-5, by those two
persons in favour of the tenants, to the recognition
of tho tonant!! as their tenants, no further question
of scrutiny of any other evidl'nce on record could
have arisen. Tho other evidence on record about
which tho High Court expressed its opinion, and thnt
too not iu a final form, as a fre8h finding was being
called on the basis of that ovidenc1~. mainly con8iste<l of the evidence in favour of the defendants. Noncon8ideration of that evidence could havo beon a
grievanco to the clcfcndants, but not to tho plaintiff~
appellants before tho High Court. Expression of
opinion in that form on such evidence was detrimental to tho interest of tho defendant in a frosh coneidoration of that evidenco bv the Subordinate
Judge, who, naturally, in his frosh finding, follO\ved
a practically similar line of <:riticism against that
evidence.
The mere fact that certain e'·idoncc had
not been closely scrutinized or, in other words, not
scrutinized in & m&nner in
which the 1econcl
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3 S.C.R.
SUPREME COURT REPORTS
923
·-tppellate Court desires it to be scrutinized, cannot
be a ground for interference with the finding of fact
in the second appeal. If the High Court considered,
as is being now urged for the respondent, that
without proof of the tenants actually paying rent
to Seetharamiah and Ramakotiah, who laid claim
as heirs but have been proved to be not heirs of
Krishnavenamma, there was no valid attornment,
tho order for a fresh fiinding rt bout attornrnent could
be justified on the ground that the Subordinate
Judge had not referred to the evidence having a
bearing on the question of the payment of rent by
the tenants ancl its receipt by the new landlords
Seetharamiah and Ramakotiah. I however find it
difficult to put such a construction on the High
Court's order when it did not decide upon the principle of law adopted by the first appellate Court.
"Attornment, in its strict sense, is an agreement of the tenant to a grant of the reversion made
by the landlord to another, or, as it has been defined, 'the act of the tenants putting one person in
the place of another as his landlord" -see paragraph 732, l!'oa's General Law of Landlord and
Tenant; This means that in the first instance
attornment is made in favour of the person who
has derived his title or supposed title from the
original landlord. It implies a continuity of tho
tenancy created by the original landlord in favour
of the tenant. It is in these circumstances that the
existing tenant, for the rest of the period of his
tenancy, agrees to acknowledge the new landlord
as his landlord. Such an agreement of the tenant
amounts to attornment and by such an attornmont
tho tenant by his act substitutes the new landlord
in place of the previous one. Such attornment is
complete tho moment the tenant agrees to acknowledge the new landlord to be his landlord. Any
future payment or non-payment of rent does not
affect the relationship created by the attornment.
The new landlord will ha vo his remedies with respect
to the rents falling in arrears.
1961
Uppalapati Vt1era
Vtnkata
Salj'anarayanaraju
v.
J1syula
Hanumayamma
Raghubar Dayal .J.
1961
Upp.Jt1.pali Veera
Vrllk4la
Saly.nM(f/d11ataju
v •
.J osy·tla
I lanum.panvna
Razltuhar Dayal .l.
924
SUPREME COURT REPORTS
[1962]
Agnin, it is stated in paragraph 745 at page
475:
"With regard to the title of person from·
whom the possession waa not obtained, but
who has been recognised as lamllord by the
tenant, such recognition may Le by cxpr08S
agreement, by attornment, or other forinal
acknowledgment (as Ly paying a nominal ~um
of money), by payment of ront, or of 11, nominal sum aa rent, or by su bruission
to a.
distress."
Tho attornment is here described a,; one mode of
recognising a person as one's landlord, just as payment •Jf rnnt is another modo for the purpose.
Expression to similar effect is to be found in paragraphs /4G, and also 74i whllro it is further noted:
"But the tenant is not allowed to impeach
the title of a person to whom ho bas paid rent,
or whose title he has otherwill-0 recognised,
without showing a better title in aomo other
person. Thus he cannot, after attorning to a
porBon who deri'rns his title under a will,
contend merely that upon a tru•J construction
of the will he had no title; nor can he, after
paying him rent, dispute his title merely on
tbe ground that the devise to him was void,
owing to the incapacity of the testator."
In ]( risna Proa had Lal Singh.a Dco v. Bara/Joni
Coal Concern(') tho Privy Council said at page 318,
when considering tho seopo of s. ll6 of tho Indian
Evidonco Act :
''Whether during the currency of a.
t~rm
-" -
r
I
the tenant by attornrucnt to A who claims to
fi
ha.vo the reversion, or the landlord by acooptancc of rent from lJ who claim3 to be entitled
to the term, is estopped from disputing the
daim
which he has onco admitted, are
important questions, but they are instances of
cases which are outside s. ll6 altogether."
(11
(1937) L.R.64 I.A.311.
3 S.C.R.
SUPREME OOURT REPORT~
925
And 11gain, at page 319 :
"In the ordinary case of a lease intended
as a present demise-which is the rase before
the Board on this appeal-the section applies
against the lessee, any assignee of the term
and any sub-lessee or licencee. 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
disentitlo 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 estoppe!, e.g.,
by attornment, acceptance of rent eto. In this
!ense 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.''
These observations make it clear that simply
by attornment the tenant is estopped from question·
,
ing the derivative title of the claimant's successor
just as the acceptance of rent will create an estoppel
against the landlord from denying the person, who
paid the rent, to be his tenant. These observations
do not indicate that any actual payment of rent by
the tenant who has attorned is necessary to make
the attornment effective. If it was otherwise, the
new landlord in whose favour the tenant has
attorned, will not be able to take successfully any
action against that person till that person had made
tho first payment of rent.
I am therefore of opinion that once the tenant
ha11 agreed to accept the person claiming title from
the previous landlord, that amounts to effective
attornment in favour of the landlord and is no
more dependent on the future conduct of the tenant
by way of payment of rent or otherwise.
1961
Uppalapati V ura
V.mkata
Sa!J'•narayanarqju
v.
Josyula
Hanumayamma
Raghubar Dayal J.
J!!bl
Up~alaposi i ·euo
Vtnkata
S o/)'4110' 0.14110' a ju
v.
Josyula
}fatrUf1J.4.J01111110
Razludar Do;oal J.
026
SUPREME COURT REPORTS
[ll)t12] .
A person can establish his pusselS!lory titlo by
cst.<i.blishing that he had been iu 11ctual po88cssion
of tho Janel in sait or had been in posRession through
tenants. So long a.s the persons in actual possession
are deemed to be his tenants on account of their
conduct in recognising that porson as their landlord
11.nd arc estoppod to question his titlt>, I see no good
reason why their possession be not t.akcn to be tho
possession on behalf of that person, irrespective of
the fact whether that person had k1:al title or not.
If he had legal title, no question of relying on
posscssory title would c\·er arise.
It is only in the
ca:;o of his failure tu establish his legal Litle that. lw
has to fall back upon possessory title.
I see no
good reason why the possossion of tenants who h1d
attorned to a person h.iYing uo title be not considered
tu be his possession in determining whether he Imel
preforential po:lllessory title to that of a11other, who
too has no title and secured possession of the land
subsoque11t to the atturnment.
In this view of the matter, I am of opinion
that the High Court was wrong in asking for a fresh
finding ou the question of possession 1rhc·n it had
not decided thll.t the tenants had not, in law,
attorned to So<!tharnmiah and B.amakut;ah, on the
basi8 of the two elocumcnts Kadapa Ex. D.4 and
CCJ\rle Ex. D-5, am! whon according t.o tho first
app~llate court, the effect of those docmnents was
that the tenants had attorned to them.
I am, however, of opinion, though the point
wao not raised, that tho Kaela.pa Ex. D·4 is not an
agreement by tenants simply 1iccepting the claimants
to bu tbe nuw landlords as, by this document, they
do not j1rnt substitute the new landlords in the
place of the old. Thoy really took a new leMe from
those two persons. The terms of the new lease wore
diffon•nt from those of the lease of Krishna\•onamm11..
The unexpired period of the tenancy was two years.
C'nder the Kaelapa, the now tcnaney
\Va.B
to
continue for fivo year;; from June, l!l33. The lease
eloes not cover just the land which they held undot
•
T
3 S.C.R.
SUPREME OOUBT REPORTS
927
their previous tenancy, but included some other
fond as well. The amount of rent they were to pay
also differed. It was much reduced.
Such a docu·
ment is not a dPed of attornment but is a document.
accepting
fresh
tenancy.
Seetharamiah
and
Bamakotiah could not in law lease the land in
suit to those tenants as they had no title
in
themselves,
they
being
not
heirs
of
Krishnavenamma. Any lease executed by them
created no right. These lessors were not. in actual
possession of the land at any time. They could
not have, thcreforti, conveyed possession to their
tenants. As the new lessees got no title under the
lease, their continued possession over the land in
s11it could not be possession under the lease on
behalf of tho new lessors, especially when their
possession can be traced to the valid tenancy under
the deed, Ex. P-6, in favour of Krishnavenamma
and will be deemed to he on behalf of legal heir.
Seetharamiah and Ramakotiah, therefore, cannot
be held to be in possession of the land in suit
through their tenants between June, 1933,
and
some time in 1936, when those tenants were dispossessed by Moka Suhba Rao on behalf of plaiptiff
' No. 1. It follows that the predecessors-in-interest
of the defendants have been rightly held to be not
in poflsession of the land in suit prior to plaintiff
No. 1, who too, had no title, getting possession of
the land in suit and that the order und"lr appeal is
correct.
..
Appeal dismissed •
1981
Uppalapati Vura
Venkcta
S alya1iarqyansraju
v.
]oayula
Hanumayamma