JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order dated 3.10.1998 passed by Judge, Small Causes Court, rejecting the application filed by the petitioners for stay of proceedings in Suit No. 3 of 1989 and the order of respondent No. 1 dated 30.10.1998, dismissing the revision against the said order.
2. Briefly stated, the facts are that Shankar Lal, father of the petitioners, was inducted as a tenant in building No. 34D, Naxvab Yusuf Road, Allahabad by Mrs. Soonama Booman Sapporjee. After her death, her rights were devolved upon her daughter Smt. Daulat Den Shah Lahawalla. She sent a composite notice demanding arrears of rent and terminating the tenancy of Shankar Lal. As the tenant failed to comply with the notice, she filed Suit No. 420 of 1982 in the Court of Judge, Small Causes, Allahabad for recovery of arrears of rent, ejectment and damages. During the pendency of the suit, Smt. Daulat Den Shah Lahawalla executed a sale deed in respect of the property in question in favour of M. K. Somrajan, respondent No. 3. Shankar Lal filed an application before the Court on 23.9.1985 stating that as the erstwhile owner has sold the properly to respondent No. 3, the suit should be dismissed. The trial court dismissed the suit filed by Smt. Daulat Den Shah Lahawalla on 24.9.1985.
3. Respondent No. 3 gave a notice to Shankar Lal to pay arrears of rent which was due as against him from 6.12.1982 and terminated his tenancy. As Shankar Lal did not pay arrears of rent or vacated the premises in question, he filed Suit No. 3 of 1989 against Shankar Lal for recovery of arrears of rent, ejectment and damages. Shankar Lal died during the pendency of the suit on 24.2.1989 and the petitioners were substituted as his heirs and legal representatives. The petitioners filed written statement stating that the premises No. 34D/74, Nawab Yusuf Road is built upon Nazul plot No. 58A, Civil Station. The period of lease has expired on 2.4.1968. The erstwhile owner had no right to execute any sale deed after the expiry of period of lease. The sale deed executed by the erstwhile owner without permission of the Government was illegal and void. The District Magistrate passed an order on 21.2.1986 declaring the sale deed in favour of respondent No. 3 as null and void. It was further alleged that the lease-holders had granted a sublease in favour of Shankar Lal and, in fact, he had built the constructions.
4. Respondent No. 3 filed Writ Petition No. 5772 of 1986 against the order of the District Magistrate dated 21.2.1986, whereby he had declared the sale deed, executed in his favour as null and void. This Court admitted the writ petition and stayed the operation of the order of the Collector, Allahabad dated 21.2.1986 till further orders. The stay order is still continuing. The petitioners filed an application for stay of the proceedings of the suit till the writ petition is decided. The application has been rejected by the Judge, Small Causes Court vide order dated 3.10.1988. This order has been affirmed in revision by respondent No. 1 on 30.10.1988.
5. The main thrust of the submission of learned counsel for the petitioner is that the suit filed by respondent No. 3 is not maintainable after the Collector declared the sale deed as null and void by his order dated 21.2.1986 and the Court should have stayed the proceedings in the suit till the rights of respondent No. 3 are finally determined in the writ petition filed by him.
6. Admittedly, the petitioners were let out the premises in question by erstwhile owners and the tenant never questioned the rights of the landlady on the basis of the contract of tenancy. The previous landlady had filed the suit in the year 1982 and in that suit, it was not denied that she was landlady of the property in question. Shankar Lal. father of the petitioners in that suit had filed application to dismiss the suit on the ground that she had executed the sale "deed in favour of respondent No. 3. The validity of the sale deed was not questioned. In case, the petitioners had challenged the validity of the sale deed treating it as void, the suit could not have been dismissed by the trial court on the ground that the plaintiff had executed the sale deed in favour of respondent No. 3. It is when after purchase of the property, respondent No. 3 had filed the suit, the petitioners have taken the plea that the sale deed executed by erstwhile owner in his favour is void and illegal on the ground that the period of the lease had expired. It has to be examined in the suit as to whether the petitioners, in the facts and circumstances of the case, are estopped from challenging the validity of the suit when they did not raise this objection in the suit filed by the erstwhile owner of the properly.
7. It is settled law that where a tenant who had been let into possession of the premises by the landlord, the tenant under Section 116 of the Evidence Act is estopped from denying the right and title of the lessor however defective it may be so long as he has not openly restored possession by surrender to his landlord. The tenant's estoppel operates even after termination of the tenancy as long he continues in possession vide Bilas Kumar v. Deshraj Ranjit Singh, AIR 1915 PC 96 ; Smt. Charubala Basil v. German Gomez, AIR 1934 Cal 499 ; Suraj Bali Ram v. Dhani Ram, AIR 1979 Orissa 101.
8. The next question is as to whether the petitioners can challenge the validity of the sale deed executed in his favour by erstwhile owner in the suit filed by him against the petitioners after terminating the tenancy of their predecessor-in-interest. Respondent No. 3 has filed Writ Petition No. 5772 of 1986 challenging the order of the Collector dated 21.2.1986 and that order has been stayed. The petitioners had not restored the possession either to respondent No. 3 or to the previous owners of the property in question. It is a matter between the Collector and respondent No. 3 In regard to the rights over the lease land. It is not the case of the petitioners that the Collector had granted lease of the land in their favour. The petitioners are liable to restore the possession to respondent No. 3 who has purchased the property from its erslwhile owner, in Lawang Chand Shah and others v. Kedar Ram and others, AIR 1984 Pat 116. where the defence was taken that the land in suit vested in the State of Bihar in 1956 and the State Karmchari started demanding rent from other persons. It was observed as under :
"The consensus of judicial opinion has been that possession must be surrendered before any defect in the landlord's title is allowed to be proved. However, the aforesaid principle of surrendering and solemnly renouncing possession is subject to certain exceptions. Exceptions to this rule, by and large, are (i) where the plaintiff or the defendant does not seek either to evict or to defend his title as a landlord on the strength of a tenancy but on the strength of his title and the erstwhile tenant having acquired an indefeasible right in himself is opposing the stand on the strength of a title in himself. Say. for instance, as a vendee ; (ii) where the tenant has been evicted by a person holding a title paramount ; (iii) where under a treatment or compulsion of being evicted by the true owner or by a person claiming better title than the landlord, the lessee attorns to such third person with notice to his original lessor."
Respondent No. 3 has denied that any possession was taken by the Collector and all the proceedings for possession were totally farce. The petitioners, in these circumstances, were liable to restore the possession to plaintiff-respondent No. 3 unless In the suit it Is established that a new right has been created in favour of the petitioners by the State Government.
9. It may further be noted that the State Government had granted lease in regard to the land and permitted the lessee to raise the constructions on such land. The State Government is not entitled to take possession of a building constructed by a lessee of the land. It can direct the lessee to remove the construction as provided under the terms and conditions of the lease. The tenants, who are residing in such building, are to restore the possession of such building to the landlord. The contract of tenancy is in relation to the building and not in respect of the land. The sale deed in respect of the building remains unaffected even though the term of the lease in respect of the Nazul land has expired.
10. Lastly, according to version of the plaintiff-respondent. Shankar Lal was let out the building in question and not a Nazul land. The plea of the petitioners in the suit is that the land was sublet by erstwhile owner of the said premises to Shankar Lal and thereupon he had raised the constructions. It is a question of facts to be determined by the trial court.
11. The Court below has yet to determine the questions of fact. The application for stay of further proceedings in the suit, in these circumstances, was rightly rejected by the Courts below.
12. I do not find any legal infirmity in the impugned orders. The writ petition is accordingly dismissed.