Kanik Mandal and Others vs Medni Rai and Others

Fazl Ali, J.—This is a plaintiffs'' Letters Patent appeal from the decision of Manohar Lall, J. in a second appeal arising out of a suit instituted by the plaintiffs to recover possession of 7.82 acres of land appertaining to khata No. 309 in village Nayanagar Karauti.

The facts are briefly these: The disputed land was the holding of one Chulhai. On 5th September 1933 the holding was sold in execution of a rent decree obtained by the defendants second party, the landlords of the village, and the defendants second party purchased the holding. It may be stated here that in this execution the holding had been sold for arrears of rent due for the years 1335 to 1337. On 8th September 1933, the defendants second party took out a certificate under the Public Demands Recovery Act against Chulhai for the rents of the years 1337 to 1340. On 22nd November 1983 the certificate Court issued a notice u/s 7 of the Act, and this notice was duly served upon Chulhai on 28th November 1933. On 31st December 1933 while the certificate proceedings were pending the defendants second party obtained possession of the disputed land, which they had purchased in the rent execution ease, and on 9th February 1934 they proceeded to settle it with defendant first party. On 3rd September 1934 the land was sold in the certificate proceeding and was purchased by the plaintiffs, and on 20th January 1935 the plaintiffs got possession of it through the certificate Court. Afterwards there was a dispute as to possession between the plaintiffs and defendant first party and the latter was declared to be in possession by an order made u/s 145, Criminal P.C. In 1937 the plaintiffs instituted the present suit for a declaration of their title to and recovery of possession of the disputed land. This suit was dismissed by the first two Courts and their decrees were upheld on appeal by Manohar Lall, J. Hence this appeal under the Letters Patent.

The point, which is raised on behalf of the appellants in this Court, is that the defendants second party, having represented openly and publicly when they obtained certificate on 8th September 1933 that the disputed land belonged to Chulhai and having got the land sold on that footing, are estopped from asserting that the land did not belong to Chulhai, and the defendant first party is also bound by the doctrine of estoppel as their privy or representative in interest. It may be pointed out that on 8th September 1933, the defendants second party had only made an application for a certificate in the certificate Court against Chulhai, alleging that Chulhai owed them rent for the years 1337 to 1340 F. Thus, the only representation which was made by them on that date was that certain rents were due from Chulhai, and a certificate was applied for on that footing. There was no representation to the effect that Chulhai was still in possession of the disputed land. The learned Counsel for the appellants contended that, at any rate, there was such a representation when a notice was issued u/s 7, Public Demands Recovery Act. Section 7 provides that "when a certificate has been filed in the office of a certificate officer, he shall cause to be served upon the certificate-debtor, in the prescribed manner, a notice in the prescribed form and a copy of the certificate." The prescribed form is Form No. 3 of the Act, and it merely prohibits the person against whom certificate is applied for from alienating his immovable property or any part of it by sale, gift, mortgage or otherwise. The effect of the service of notice u/s 7 is stated in Section 8 of the Act, in these words:

From and after the service of notice upon a certificate-debtor

(a) any private transfer or delivery of any of his immovable property situated in the district, or in the case of a revenue paying estate, borne on the revenue-roll of the district in which the certificate is filed, or of any interest in any such property, shall be void against any claim enforceable in execution of the certificate.

It is to be borne in mind that the notice is addressed only to the certificate-debtor, and it does not speoify any particular property but prohibits him generally from transferring "any of his immovable property situated in the district." I am, therefore, unable to find in the notice any trace of the alleged representation or any statement by the land-lords to the effect that Chulhai was still in possession of the disputed land. In my opinion, the utmost that can be said for the appellants is that there was a representation by the landlords at the time when the land was actually sold; but, as has been pointed out by the Courts below as well as by Manohar Lall, J., the estoppel raised on that ground, cannot operate against defendant 1, because the title had vested in this defendant before the disputed land was put up for sale and purchased by the plaintiffs. The learned Counsel for the appellants contends that the estoppel is binding not only upon the defendants second party but also upon defendant 1, because Section 115, Evidence Act, clearly provides that "when one person has, by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing." It is urged that defendant 1 being a representative of the defendants second party is bound by the consequence of the false representation made by the defendants second party, and it is immaterial whether he derived his interest before or after the sale. In my opinion, the contention is not sound and cannot be given effect to in this case. In the first place, it has been found by the. trial Court as well as the Court of first appeal that the plaintiffs must have been aware at the time they purchased the disputed land that it was in possession of defendant 1 and that Chulhai had no subsisting interest. This amounts to a finding that the plaintiffs, being aware of the true state of facts were not in fact misled by any representation that might have been involved in the land being sold as the land of Chulhai. The learned Counsel for the appellants has contended that the finding of the first two Courts on this point should be ignored, because it is not based upon any direct evidence but is a mere inference drawn by the two Courts from the fact that the plaintiffs have their land near the disputed land. I am, however, unable to agree with this contention. The Courts concerned were satisfied on the evidence which they had before them that the plaintiffs have their own land near the disputed land and they were free to infer from this ( fact that they must have been aware that the land '' was no longer in possession of Chulhai but was in possession of defendant 1. It cannot be said that the inference drawn by the two Courts does not amount to a finding of fact, and it has been rightly urged on behalf of the respondents that in view of this finding which this Court cannot ignore the plea of estoppel cannot be given effect to.

There is, also another answer to this plea, In Abdul Ali v. Miakhan 35 Bom. 297 Basil Scott C.J., and Batchelor, J., held that a prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after the purchase, and in support of their view they also referred to three cases; Mercantile Investment and General Trust Co. v. River Plate Trust Loan and Agency Co. (1894) 1 Ch. 578, Natal Land &c Co. v. Good L.R. 2 P.C. 121 and Naiz Ullah Khan v. Nazir Begam (92) 15 All 108 In my opinion, the same rule will apply to the present case, because whether the estoppel be by judgment or by representation the principle must be the same. In the present case the defendants second party had settled the disputed land with defendant 1 before the plaintiffs purchased the land. If the estoppel arose at the time of the sale, that estoppel could not obviously affect the interest which had been acquired by defendant 1 before that date. The points, which have to be borne in mind, are, firstly, as to when the estoppel arose, and, secondly, what was the landlords'' interest in the land at the time the estoppel arose. It is clear to me on the facts of the case that at the date of the sale the landlords'' interest was clearly subject to the rights acquired by defendant 1 as a lessee and therefore the plaintiffs cannot claim any better title in the land than that possessed by the landlords at that date. In my opinion, therefore, the plaintiffs are entitled to no relief and the suit has been rightly dismissed.

The only other question which was raised before us was that no costs should have been awarded by the first appellate Court to the defendants second party as against the plaintiffs. It appears, however, that this point was not urged at all before Manohar Lall, J., and the appellants cannot be allowed to urge it in this appeal under the Letters Patent. The appeal, in my opinion, is without merit and must be dismissed with costs to defendant 1.

Harries C.J.

I agree.