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PETITIONER: UPPALAPATI VEERA VENKATASATYANARAYANARAJU AND, ANOTHER

       Vs.

RESPONDENT: JOSYULA HANUMAYAMMA AND ANOTHER.  J. C. SHAH

DATE OF JUDGMENT: 29/09/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C. DAYAL, RAGHUBAR

CITATION:  1967 AIR  174            1962 SCR  (3) 910  CITATOR INFO :  D          1989 SC1269  (18)

ACT: Attornment-By  tenants  infavour  of  persons  claiming  but having  no  title-How  made-Payment  of  rent  if  necessary Finding of fact-Interference by High Court in second appeal.

HEADNOTE: In  the  present suit for possession the courts  found  that none of the parties had a legal title to the property in the dispute  and  in  determining  which  of  the  parties   had possessory title to the said property the trial court  found that 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 possessory  of  the property and themselves executed a cowle in their favour but the  said  tenants  did not pay any rent  to  the  so-called reversioners.  The trial court held that,though there was  a kadapa  by which it might be said that the tenants who  were there from before had attorned to the so-called,reversioners it  was  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 reversioners  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  reversioners and  as the, first appellate court did not consider  whether there:  was.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 of fact 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. Held (per K. N. Wanchoo, K.C Das Gupta and K.J.C. Shah, JJ.)

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that  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 but where  a  person  in whose  favour attornment had been made had no title, a  mere paper attornment would not be sufficient unless there was  a real  attornment in the sense that the person  who  attorned also paid rent voluntarily or under a decree to the 911 person in whose favour the attornment was, made.  The  first appellate  court had merely considered the paper  attornment and  had  not considered the evidence as to the  payment  of ’rent which was there and had been considered by the   trial court.   The  High  Court-  was  therefore,  justified    in calling   for.  a  finding  on  a  question  which  was  not considered by the lower appellate court. Per  Raghubar Dayal, J.-Once a tenant agreed, to accept  the person  claiming  title  from the  previous  landlord,  that amounted to attornment in favour of the new landlord and was no more dependent on the future conduct of the tenant by way of payment of rent or otherwise., Krishna  Prasad  Lal Singha Deo v.  Baraboni  Coal  Concern, (1937) L. R. 64 I. A. 31 I-, referred to.  There was no good reason why the possession of tenants  who 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  closely scrutinised  in other words, not scrutinised in a manner  in which   the  second  appellate  court  desired  it   to   be scrutinised,  could not be a ground for interference with  a finding of fact in second appeal. In  the  present case the Kadapal the terms  of  which  were different  from  those  of the old one was  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.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 459 of 1958. Appeal by special leave from the judgment  and decree  dated June  29,1955,  of the former Andhra High  Court  in  Second Appeal No. 730 of 1949. A.V.  Viswanatha  Sastri and’P.  V., R. Tatachari,  for  the appellants. K.    Bhimasankaram   and  G.   Gopalakrishanan,   for   the respondents. 1961.     September 29.  The judgment of Wanchoo, Das  Gupta and  Shah,  JJ.,  was   delivered  Wanchoo,  J.,  Dayal   J. delivered a separate 912 WANCHOO,  J.-This  is an appeal by special  leave  from  the judgment   and  decree  of  the  Madras  High  Court.    The appellants  were  defendants  in  a  suit  brought  by   the respondents  for  possession  of  certain  properties  which originally  belonged  to one Subbarayudu.  The case  of  the respondents  was  that  Subbarayudu executed  a  will  dated September 15, 1885.  Under that will the property passed  on hit;  death  to his wife with life interest  and  after  her death  absolutely to his daughter Krishnavenamma who was  in enjoyment  thereof  till her death in  1933.   The  daughter executed a will on March 24, 1933, in favaur of her step son

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Nagaraju  who  came into possession of the 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 before us) and thereafter the property was bequeathed absolutely to his  daughters.  The second respondent is the tenant of  the first  respondent.  Nagaraju died soon after  executing  the will and the 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 1943  by the  appellants  who  claimed to be the  purchasers  of  the property from Seetaramayya and Ramakotayya who in their turn claimed    to   be   the   reversioners   of    Subbarayudu. Consequently,  the suit out of which the present appeal  has arisen  was  filed in June, 1944, for possession  and  mesne profits. The suit was resisted by the appellants, and their case  was that  they had purchased the property from the  reversioners of  Subbarayudu in 1942.  It was further contended on  their behalf that on the death of Krishnavenamma the  reversioners came into possession of the property through the tenants who had been in possession from before under a lease granted  to them   by   Krishnavenamma.   These  tenants   remained   in possession  till the sale deed in favour of  the  appellants and attorned to the  913 appellants  thereafter.  Later the two  tenants  surrendered possession  to  the  appellants who thus  came  into  actual possession  of  the property in suit.  The  appellants  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, the 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 have  been  executed  by Subbarmyudu  was  not  proved.   In consequence 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 Ramakotayya  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  was 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. I and Seetaramayya and Ramakotayya who set themselves up as reversioners to  obtain the  favour  of  these  two  tenants,  and  the  so.  called reversioners managed to obtain in June, 1933, a kadapa  from the two tenants for five years 914 ending with May, 1938.  They also executed a cowle in favour of the tenant,% and both these documents were registered  in

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July,  1933.   But the finding of the trial court  was  that there  was no payment of rents in the years 1933  ’and  1934 and that the real fight for the land started towards the end of 1935 or the beginning of 1936 and although documents were taken  from  the tenants by the so  called  reversioners  no actual payment of rent was made to them.  It also held  that in  this game of winning the favour of the tenants the  real gainers  were  the tenants who paid no rent  to  either  the first  respondent or the so-called reversioners.  The  trial court  further  held  that it was in  1936  that  the  first respondent  managed  to  dispossess  the  tenants   forcibly through  her tenant Moka Subbarao who seems to have  been  a person  of  some influence in the village.   Thereafter  the first  respondent remained in possession through her  tenant till she was dispossessed in November, 1943, forcibly by the present  appellants after they had purchased the lands  from the  go-called  reversioners.   In  effect,  therefore.  the finding  of  the trial court was that neither party  was  in Possession.  of the property up to 1936 and it was  only  in 1936 that the first respondent came into possession  through Moka Subbarao by dispossessing the tenants who were  holding the  land  from the time of Krishnavenamma and had  paid  no rent  to  anybody after her death In consequence  the  trial court  hold that as the possession of the  first  respondent was  earlier  she was entitled to succeed at  least  on  the ground of possessory title.  Incidentally it also held  that although the title of the first respondent was defective for the  reason that Krishnavenamma did not have absolute  right in  the property it was not :void but was only  voidable  at the  instance  of the nearest reversioner or some  one  else having   better  title,  which  the  appellants   or   their predecessors  in-interest did not have.  In the  result  the suit was decreed with mesne profits. 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 the 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 so called reversioners who had  earlier possession  than  the 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  so called  reversioners. ever collected rents from the  tenants who were there from the time of Krishnavenamma between  1933 and 1936.  This question had been specifically considered by the  trial  court  and it had come to  the  conclusion  that though the kadapa and the cowle had been executed they  were mere  paper transactions and the so-called reversioners  had

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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 916 suit   on  the  view  taken  by  him  that   the   so-called reversioners had come into possession  of the property after the  death  of Krishnavenamma end were forcibly  ejected  in 1936 by Moka Subbarao as the tenant of the first respondent. This  was  followed by a second appeal by  the  respondents. The  High  Court  took  the view that  the  finding  of  the Subordinate  Judge that the so-called reversioners  were  in possession  from  1933  to  1936,  could  not  be  accepted. According  to the High Court, the main question was  whether the  tenants who were there from before really  attorned  to the reversioners.  The High Court then went into some of the evidence  and  held that various matters which  should  have received the attention of the Subordinate Judge in coming to a  conclusion  on  this important point  of  fact  were  not considered  by him; therefore it was not prepared to  accept the  finding of the Subordinate Judge in second  appeal  and required the Subordinate Judge to submit a fresh finding  on this   question.   When  the’  matter  went  back   to   the Subordinate  Judge he examined the entire evidence and  came to  the conclusion that the so-called reversioners in  order to  create evidence of possession had taken the kadapa  from the  tenants after winning them over to their side,  perhaps by a promise not to collect rent from them.  He also came to the  conclusion that the so-called reversioners were not  in possession of the property after the death of Krishnavenamma from  1933  to 1936 and that it appeared  that  during  that period neither party was in possession and only ’the tenants who were there from the time of Krishnavenamma continued  to being  possession  but without paying rent to  anybody.   He further held that in the circumstances the possession of the tenants could only ’be treated as that of the rightful owner which  neither party was in this case.  Finally he  came  to the  conclusion that it was for the first time in 1936  that Moka Subbarao took possession of the                             917 land  as  the  tenant  of  the  first  respondent  and   the appellants  got  possession  for the  first  time  in  1943. 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  the order of the trial  court  restored.   The appellants have come to this Court by special leave. The  main  contention  urged  before 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  the 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

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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 918 Judge; but all that ’the Subordinate Judge did ’was" to rely on  the kadapa and hold on the basis of that  document  that the   so-called  reversioners  had  come   into   possession peacefully.  It is said that whatever may be said about  the value  of attornment: made in favour of the true  owner  the position.  is different where attornment is in favour  of  a person who is not- the true owner.  In such case before  the person  in  whose favour an attornment has  been  made,  can establish  that , his possession was effective it must  also be  shown that he was paid rent by the tenants who  attorned to  him.   Therefore,  it is urged that,  as  there  was  no finding  by the Suboridnate Judge on this  crucial  question the,  High Court was justified in sending the case  back  to the  Subordinate  Judge for a finding in- this  regard.   As such,  it  is urged that this is not a case where  the  High Court had reversed, a finding of fact by the first appellate court  which it is admitted it has no jurisdiction  to  ’do; but  it is a case where there was no finding on the  crucial question of fact by the Subordinate Judge and the High Court therefore  hid  jurisdiction to call for a finding  in  this regard. We are of opinion that though on a first reading of the High Court judgment calling for,a finding it does look as if  the High  Court  was  reversing  the  finding  of  fact  as   to possession’  when  it called for a further  finding  on  the question, a closer examination of its Judgment calling for a finding  along  with  the findings by  the  Munsif  and  the Subordinate  Judge on the crucial question involved in  this case  shows that it held that there was no ’finding  by  the Subordinate  Judge  on that crucial  question,,  though  the trial  court  had  given a finding in favour  of  the  first respondent  in that respecter, As both parties were  relying on possessory title, it was necessary that they should prove effective possession over the, property in order to  succeed on  the basis of possessory title.  By effective  possession we mean either’ actual possession or 919 possession  through  a  tenant  who  must  have  paid   rent voluntarily  or   under  a decree  to  the  person  claiming possessory  title.   The kadaps by the  previously  existing tenants in favour of the so-called reversioners   all  along been treated as an attornment by all    the three courts and we therefore accept it as     such.    If   the    so-called reversioners  Third  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  bad  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 attornment.

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The  fact that, the tenants who had executed the kadapa  may be  estopped  from challenging the title  of  the  so-cAlled 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  anyone  by  the tenants; further no suit had, been brought by the  so-called reversioners,   to  recover  the  rent  before   the   first respondent  got  into  possession.   The  kadaps   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 be 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 920 that  was  found  by the Subordinate  Judge   and    rightly required  in a case based on possessory title     only  that the  attornment should be a real attornment, i. e.,  one  in which the person attorning should also have paid rent either voluntarily or under a decree to the person in whose  favour the  attornment was made.  The Subordinate  Judge,  however, had  merely  considered  the paper attornment  and  had  not considered  the evidence as to payment of rent,  which  was, there and which had been considered by the 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  the attornment  was  made  through  the kadapa.   The trial court therefore held that from  1933  to 1936,  only  the tenants were in possession but  they  never paid  rent  to  anybody  and  thus  neither  party  was   in possession through them.  This aspect of the finding of  the trial  court  was completely overlooked by  the  Subordinate Judge  who decided the question of possession 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 merely satisfied with paper attornment in  a case  based on possessory title which was 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 paid and  would thus  result  in  effective  possession  of  the   so-called reversioners through the tenants.  It seems to us  therefore that  though  the  form in which the  High  Court  expressed itself when it called for a finding was not happy, what  the High Court really did was to hold that there was no  finding by  the  Subordinate  Judge on  the  question  of  effective possession   of   the   so-called   reversioners   after   a consideration  of the evidence relating to payment  of  rent etc.; it therefore called for a finding on  the question  of effective, possession after                             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  kadaps 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

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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 costs of this Court. RAGHUBAR DAYAL, J.-I agree that the appeal be dismissed, but for different reasons. If Narasimhulu and Ramudu alias 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,  Was  correct.  The High Court did not decide  by  its first  order remitting the point No. 2, viz.,  ,whether  the plaintiffs  got  into  possession  of  the  suit  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  attornment  without  the executants paying rent to Ramakotiah and Seetharamiah.   The learned Judge simply said: 922               "Apart   from   ’the  question   whether   the               principle  of  law  adopted  by  the  learned.               Judge  is  welf-founded  or not,  on  which  I               express-no  opinion at present it seems to  me               that the finding of the learned  Judge  that,,               the first defendant bad prior, possession from               193  to  1936  cannot be  accepted  in  second               appeal" The  finding  about  the prior possession,  of  the  learned Subordinate Judge was not accepted by the High Court because it  considered  that the Subordinate Judge bad  not  closely scrutinized  the  evidence in the case on the  very  crucial question  in  issue  between  the  parties.   This   crucial question  was  formulated  as ’whether  the  tenants  really attorned   to   the  reversgioners  and   the   reversioners recognized  the possession of the tenants as  theirs.’  What was want by the High Court from this question, is not  clear to me.  If the execution of the deed, Ex.  D-4, amounted  to the attornment by the tenants in favour of Seetharamiah  and Ramakotiah,  who claimed to be the heirs of  Krishnavenamma, and  the  execution  of the cowle, Ex.  D-5,  by  those  two persons in favour of the tenants, to the recognition of  the tenants as their tenants, no further question of scrutiny of any  other evidence on record could have arisen.  The  other evidence on record about which the High Court expressed  its opinion,  and  that  too not in a final  form,  as  a  fresh finding  was  being called on the basis  of  that  evidence, mainly   consisted  of  the  evidence  in  favour   of   the defendant,%.  Non-consideration of that evidence could  have been  a  grievance  to  the  defendants,  but  not  to   the plaintiffs appellants before the High Court.  Expression  of opinion in that form on such evidence wag detrimental to the interest of the defendant in a fresh ’consideration of  that evidence  by the Subordinate Judge, who,, naturally, in  his fresh  finding,  followed  a  practically  similar  line  of criticism  against  "that  evidence.   The  mere  fact  that certain  evidence  had not been closely scrutinized  or,  in

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other  orders,  not scrutinized, in & manner, in  which  the second 923 appellate  Court desires, it to be scrutinized,  cannot   be round  for  interference  with the finding of  fact  in  the second  appeal.  If the High Court considered, 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 Rat Krishnavenamma, there was no valid attornment, the order for  a fresh finding about attornment could be justified  on the  ground that the Subordinate Judge had not  referred  to the evidence having a hearing on the question of the payment of rent by the tenants and 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, Foa’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 the 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 attornment the  tenant by  his  act substitutes the new landlord in  place  of  the previous  one.  Such attornment is complete the  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 have his remedies with  respect  to  the rents falling in arrears.                             924 Again, it is stated in paragraph 745 at page 475 :               "With regard to the title of person from  whom               the  possession was not obtained, but who  has               been  recognised  as landlord by  the  tenant,               such recognition may be by express  agreement,               by attornment, or other formal  acknowledgment               (as  by  paying a nominal sum  of  money),  by               payment of rent, or of a. nominal sum as rent,               or by submission to a distress." The attornment is here described as one mode of  recognising a  person  as  one’s landlord, just as payment  of  rent  is another mode for the purpose.  Expression to similar  effect is  to be found in paragraphs 746, and also 747 where it  is further noted :               "But the tenant is not allowed to impeach  the               title of a person to whom he has paid rent, or               whose  title  he  has  otherwise   recognised,               without  showing a better title in some  other               person.  Thus he cannot, after attorning to  a               person  who  derives his title under  a  will,                             contend merely that upon a true construction o f               the  will he had no title; nor can  he,  after               paving  him rent, dispute his title merely  on               the  ground that the devise to him  was  void,

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             owing to the incapacity of the testator." In  krisna Proshad Lal Singha Deo v. Baraboni  Coal  Concern (1) the Privy Council said at page 318, when considering the scope of S. 116 of the Indian Evidence Act:                "Whether  during the currency of a  term  the               tenant  by attornment to A who claims to  have               the  reversion, or the landlord by  acceptance               of  rent from B who claims to be  entitled  to               the  term,  is estopped  from  disputing  the’               claim   which  he  has  once   admitted,,   we               important questions, but they are instances of               cases which are outside s. 116 altogether."               (1)   (1937) L. R. 64 I. A. 311.                                    925               And again, at page 319               "In the ordinary case of a lease intended as a               present  demise-which is the case  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               disentitle 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  estoppel,               e.g.,  by attornment, acceptance of rent  etc.               In  this  sense  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 questioning 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 the first payment of rent. I  am therefore of opinion that on co the tenant has  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. 926 A person can establish his possessory title by  establishing that he had been in actual possession of the land in suit or had  been  in possession through tenants.  So  long  as  the persons in actual possession are deemed to be his tenants on account of their conduct in recognising that person as their landlord  and are estopped to question his title, I  see  no good  reason  why their possession be not taken to  be,  the possession  on  behalf of that person, irrespective  of  the fact whether that person bad legal title or not.  If he  had legal  title,  no question of relying  on  possessory  title would ever arise.  It is only in the case of his failure  to establish  his  legal title that he has to  fall  back  upon possessory  title.  I see no good reason why the  possession

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of  tenants who 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  has  no  title  and  secured  possession  of  the  land subsequent to the attornment. In  this view of the matter, I am of opinion that  the  High Court  was  wrong  in  asking for a  fresh  finding  on  the question  of  possession when it bad not  decided  that  the tenants  had  not,  in law,  attorned  to  Seetharamiah  and Ramakotiah, on the basis of the two documents Kadapa Ex.  D- 4  and  Cowle  Ex.  D-5, and when  according  to  the  first appellate court, the effect of those documents was that  the tenants had attorned to them. I am, however, of opinion, though the point was not  raised, that  the  Kadapa Ex.  D-4 is not an  agreement  by  tenants simply  accepting the claimants to be the new landlords  as, by  this  document,  they do not  just  substitute  the  new landlords  in the place of the old.  They really took a  new lease  from those two persons.  The terms of the  new  lease were  different from those of the lease of  Krishnavena  The unexpired  period of the tenancy was two years.   Under  the Kadapa, the new tenancy was to continue for five years  from June,  1933.  The lease does not cover just the  land  which they held under 927 their  previous  tenancy, but included some  other  land  as well.   The amount of rent they were to pay  also  differed. It  was  much  reduced.  Such a document is not  a  deed  of attornment  but  is  a  document  accepting  fresh  tenancy. Seetharamiah and Ramakotiah could not in law lease the  land in suit to those tenants as they had no tit ,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, therefore, conveyed possession to their tenants.  As the new lesseess  got  no  title under the  lease,  their  continued possession  over  the land in suit could not  be  possession under  the  lease on behalf of the 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 be 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 Subba Rao on behalf of plaintiff No. 1. It   follows  that  the  predecessors-in-interest   of   the defendants have been rightly held to be not in possession 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 under appeal is correct. Appeal dismissed. 928