LexUPPALAPATIVEERA VENKATA SATYANARAYANARAJU AND ANOTHER versus JOSYULA HANUMAYAMMA AND ANOTHER
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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 tteceeaary- Finding 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 them- selves 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 attorn- rnent 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 attorn- ment 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 for
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