Hadman vs Megha Ram

Arun Bhansali, J.—This second appeal is directed against judgment and decree dt. 25.03.2004 passed by Additional Civil Judge (Junior Division), Merta as upheld by judgment and decree dt. 30.05.2011 passed by District Judge, Merta, whereby, the suit filed by the plaintiff-appellant for declaration and permanent injunction has been rejected and the appeal thereof has been dismissed respectively. The appellant Hadman while claiming 1/3rd right in the suit property filed a suit seeking declaration and permanent injunction, which was resisted by the defendants.

After the evidence was led by the parties, the trial Court came to the conclusion that the plaintiff had 1/4th share only in the suit property and, consequently, dismissed the suit filed by the plaintiff.

Aggrieved against the said dismissal, first appeal under Sec. 96 CPC was filed, wherein, during pendency of the appeal, the appellant-plaintiff sold his share indicating therein that he had 1/4th share in the suit property. The document was entertained by the first appellate Court under Order XLI, Rule 27 C.P.C. Relying on the said document and taking, inter alia, the same as his admission regarding 1/4th share, the first appellate Court dismissed the first appeal.

I have heard learned counsel for the parties and perused the judgments passed by both the Courts below.

Both the Courts below have concurrently held against the appellant that he had 1/4th share only in the suit property and the plea regarding 1/3rd share has been negated. Further, in view of the conduct of the plaintiff in selling his share in the suit property indicating the same to be 1/4th only clearly creates a estoppel against him and, consequently, the appellate Court was justified in dismissing the appeal. Accordingly, there is no substance in the second appeal and the same is, therefore, dismissed. The stay application is also dismissed. No costs.