TMI Blog1956 (4) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... comprised in survey Nos. 166/6 and 168 in favour of the Plaintiff. The appeal is now confined to survey No. 168, which is of the -extent of acre 1-70 cents. According to Defendant, this extent of land comprised in the latter survey number was in. his encroachment and that of his predecessors in-title for over sixty years and as such the Plaintiff has no interest or title in the said survey number. He also contended that the Government is a necessary party, that there is no relationship of landlord and tenant between the Plaintiff and himself in respect of Survey No. 168 and that the suit is liable to be dismissed on that score. 3. The case of the Defendant that the encroachment and reclamation of the suit land was on his own behalf witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereupon the latter pleaded that the; title to the lands was in the Government. Devadoss and Waller, JJ, held that Section 116 of the Indian Evidence Act did not bar such plea being set up. At page 745 (of Mad LJ: (at p. 185 of AIR), the following observations, in which the learned Counsel for the Appellant strongly relies, are made: Exhibit III (b) is notice issued under Section 7 and on the failure of the Defendants to comply with the terms of the notice eviction would have followed as a matter of course. The Defendants, paid the assessment and a year before the suit was brought they accepted patta from the Government. Exhibit III (b), the notice under Section 7 of the Madras Land Encroachment Act (III of 1905), amounts in law to evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on follows that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title-holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the-paramount title-holder. 8. These decisions were referred to and followed in an unreported decision of the leaned Chief Justice in Krishnavya v. Rajamma S A. No. 25 of 1953 (An Pra) (D); delivered on 14th October, 1955. The ratio of the decision of the learned Chief Justice is this: If a person, who had attorned to a person, claiming by title paramount, is not estopped from pleading that the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 6 of the Madras Land Encroachment Act. On receipt of this notice 'the 1st Plaintiff filed a statement before the Supervising Tahsildar on the 2nd September, 1950, in which the 1st Plaintiff, while acknowledging receipt of the notice on the 31st August, 1950, submitted that this land together with the inam comprised in Survey No. 166/6 was sold to bar under a registered sale-deed dated 27th April, 1915 and that therefore she was entitled to continue in possession of the land. The Defendant submitted that he reclaimed a portion of survey No. 168 and that he had been raising dry crops on the lands since 6 or 7 years and requested the Tahsildar that the land, might be assigned to him. On receipt of these two statements from the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the above decisions, that it is open to the tenant, even without surrendering possessions, to show that since the date of the tenancy the title of the landlord came to an end. That the Defendant has not shown. It is also open to the tenant to show that he was evicted by a paramount title-holder. Of -this there is no proof. He can also show that, even though there was no actual eviction or dispossession from; the property, under a threat of eviction, he had attorned to the paramount title-holder. In this case there has been a threat of eviction in the sense that a notice was issued under Section 7 of the Madras Land Encroachment Act. But, as has already been stated by me, to the notice issued under Section 7 calling upon both the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the Appellant must fail. 11. The learned Counsel for the Appellant then contended on the authority of the unreported decision of the learned Chief Justice in S. A. No. 25 of 1953 D/-14-10-1955 (An Pra.) (D), that if a suit filed under Section 7 (xi) (cc) of the Court-Fees Act cannot be disposed of without going into the question of title, the suit will have to be dismissed. The Defendant has executed a lease in favour of the Plaintiff accepting the Plaintiff's title to the land covered by Survey No. 168 and the Plaintiff has filed this suit paying Court-fee under Section 7 (xi) (cc), and it is the Defendant that pleaded that there has been an eviction by a person having a title paramount. This contention has not been uph ..... X X X X Extracts X X X X X X X X Extracts X X X X
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