(Prayer: Appeal (disposed of on 15-3-1950) against the decree of the Court of the Subordinate Judge, Tuticorin in A.S. No. 194 of 1945 preferred against the decree of the Court of the District Munsif, Tirunelveli in O.S. No. 486 of 1943.)

This second appeal arises out of a suit for ejectment and for rent. So far as the first relief is concerned, it is admitted that the lease under which the plaintiff claims and on the basis of which he has granted a sub lease to the defendant has expired. The second relief is however the practical relief with reference to which a decree must be given in favour of the plaintiff, if he is to succeed in his contention of estoppels against his tenant, the defendant. The Courts below have dismissed the suit on the ground that there was a determination of the lease in favour of the defendant by the determination of the title of the plaintiff as the lessee from the original owner. In appeal it is contended that in holding against the estoppels under S. 116 of the Indian Evidence Act pleaded by the plaintiff, the Courts below have erred in the view that they have taken that there was a threat of eviction by title paramount from the original owner against the defendant. It is urged that there could be no determination of the lease in favour of the defendant so long as the interest of the plaintiff himself as the defendants lesser did not terminate in the manner contemplated by S. 111(c) of the Transfer of Property Act.

The material facts are that there was a scheme suit in respect of the property which belonged to the trust, the original owner, in which the plaintiff as a lessee from one of the trustees then in management, one Kanthimathinatha Pillai, was impleaded but was given up at the trial, that afterwards the new trustees appointed by the scheme framed in that suit served two notices on the defendant, Ex. P. 9, dated 6-1-1943 and Ex. D.3 dated 17-5-1943 in both of which they asserted their title as trustees under the scheme, and in the latter of which they impeached the title of Kanthimathinatha Pillai to grant the lease to the plaintiff as he was only one of several trustees and not the managing trustee at the time, and called upon the defendant to vacate the premises, threatening him in default with proceedings for eviction, and that thereafter the defendant executed Ex. D.4 dated 23-6-1943 a rent deed, in favour of the managing trustee appointed under the scheme. These facts, it is contended for the appellant, do not constitute sufficient threat of eviction by title paramount such as would justify the adornment by the defendant to the managing trustee under the scheme so as to put an end to the relationship of lesser and lessee between himself and the defendant. The appellant further points out that the judgment and decree in the scheme suit do not at all declare the invalidity of the lease in favour of the plaintiff by Kanthimathinatha Pillai but leave the question of the validity of his lease open. He also contends that the learned Subordinate Judge has made the mistake of supposing that there was a prior judgment Ex. D.7, which by the way related to a lease of other property in favour of another person in which Kanthimathinatha Pillai had been declared by the High Court in the second appeal to which that judgment relates, not entitled to grant leases as he was only one of several trustees and not the managing trustee. It is not contended for the respondent that the learned Judge has not made this mistake. What is contended is that although the scheme judgment and decree did not pronounce upon the validity or invalidity of the lease in favour of the present plaintiff, the title of the plaintiff must be taken to have come to an end, because in fact Kanthimathinatha Pillai was only one of several trustees and not the managing trustee and could not therefore grant the lease to the plaintiff. It is also contended for the respondent that the question whether there was in fact a threat of eviction by title paramount is a question of fact with the lower appellate Courts finding on which I ought not to interfere.

What exactly constitutes a threat of eviction by title paramount which results in the determination of a lease has been considered in several cases of which it is necessary for me to mention only the rullings in Jogendralal Sankar v. Moheshchandra Sadhu (55 Cal. 1013 [LQ/CalHC/1928/29] ), Bajkrishna Prasadlal Singh Deo v. Baraboni Coal Concern Ltd. , (62 Cal. 346) [LQ/CalHC/1934/155] , Alaga Pillai v. Ramaswami Thevan (A.I.R. 1926 Mad. 187 [LQ/MadHC/1925/364] =23 L.W. 296), Valia Muhammad v. Savakutti Keyi (A.I.R. 1934 Mad. 197 L.W. 116), and Krishna Prasad Singh v. Adyanath Ghata (22 Fat. 513). What emerges from the relevant case law on the subject is neatly stated by Sarkar on Evidence in his commentary to S. 116 of the Indian Evidence Act. It is sufficient for me to say that in order to constitute an eviction by a person claiming under paramount title, it is not necessary that the tenant should be put of possession or ejectment should be brought, and that a threat of eviction is sufficient, and if the tenant, in consequence of such threat, attars to the claimant, he can set this up as an eviction by way of defense to an action for rent, subject to his proving the evictors title, but there is no eviction if the tenant gives up possession voluntarily. 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 threat by the third party as well as the submission to it by the tenant who attars to him must be real and bona fide . For a threat of eviction by title paramount to constitute a good defense, the party evicting must have good title and the tenant must have quitted against his will.

Applying these considerations to the present case I am fairly clear that there was a sufficiently effective threat of eviction by title paramount to justify the defendants adornment to the newly appointed managing trustee under Ex. D.

4. That the lease in favour of the plaintiff must be held to be invalid is the concurrent view of both the Courts below, and although the judgment of the appellate Court was partly influenced by its misconstruction and misconception of Ex. D.7 I am not in all the circumstances of the case prepared to interfere with the finding of the Courts below in favour of the respondent, which is supported by sufficient evidence.

In the result the second appeal fails and is dismissed but in the circumstances without costs.