Purgan Pande and Others vs Dhanpat Tewari and Others

Das, J.—This appeal arises out of a suit brought by the respondents against the appellants, who were defendants Nos. 1, 2 and 3 in the suit, for the following reliefs:

That it may be decided that the disputed land, whereof boundaries and details are given below, forms the plaintiffs'' Gujasta Kasht land as it was purchased by them in an auction sale; that defendant No. 4 has no raiyati right therein; and that it is in Touzi No. 6059 the Milkiat of defendants Nos, 5 and 6.

That it may be decided that the said land is, not in Tovzi No. 6057, the Milkiat. of defendants Nos. 1 to 3, that it is not in the joint Takhta, that the defendants Nos. 1 to 3 have ho right to get rent for the raid land, that the decree obtained by defendants, Nos. 1 to 3 against defendant No. 4 for hi(sic) rears of rent is fraudulent, and that defendants Nos. 1 to 3 have no right to get the disputed land sold in execution of the aforesaid fraudulent decree.

That on a consideration of the above the execution and sale proceedings in Execution Case No. 525 of i 915 be stayed until the disposal of this suit by sending a Rubkar to the 3rd Court of the Munsif therefor.

It will be noticed, therefore, that the plaintiffs in the action are seeking first of all to establish their raiyati interest in the land in dispute as against defendant No. 4 as the purchasers from him, secondly, to establish that their holdings are in Tovzi No. 6059 and not in Touzi No. 6057, and, thirdly, (bey are seeking to get a declaration that the decree and execution proceedings obtained by defendants Nos. 1, 2 and 3 against defendant No. 4 are fraudulent.

Defendants Nos. 1, 2 and 3 entered appearance, and they contested the suit on the ground (bat (be decree obtained by the plaintiffs against defendant No. 4 was entirely fraudulent and that by virtue of the purchase made by the plaintiffs they never obtained possession of the holding belonging to defendant No. 4, and that the plaintiffs have never been accepted as tenants by the defendants. They put forward the title of defendant No. 4 to the land in dispute and they assert in emphatic language that in spite of the purchase made by the plaintiffs, they have a right to realise rent from defendant No. 4 so long as they do not admit the plaintiffs as their raiyats. This is how I read paragraph 12 of the written statement. Therefore, on the pleadings between the parties the whole question was, was the purchase made by the plaintiffs a genuine purchase and whether defendant No. 4 was a tenant in possession of the land in dispute. It is obvious to me that the plaintiffs have been put forward by defendants Nos. 5 and 6, whereas defendants Nos. 1 to 3 are championing the cause of defendant No. 4.

The lower Appellate Court has found that the land in dispute falls'' within Touzi No. 6059 the Patti owned by defendants Nos. 5 and 6, and is not included in Touzi No. 6057, the Patti owned by defendants Nos. 1 to 3, and that the plaintiffs have been recognized as tenants by defendants Nos. 5 and 6. The lower Appellate Court has come to this conclusion on a consideration of the Amin''s report to which, it appears, no valid objection was ever taken by the appellants and on a consideration of oral evidence. The lower Appellate Court finds that the respondents are in possession of the land in dispute by paying rent to defendants Nos. 5 and 6. On these findings it mould seem that there is no merit in this appeal and that the same ought to be dismissed by this Court. Bat the learned Vakil appearing on behalf of the appellant has argued this appeal as a first appeal and has asked me to consider the various documents in the case, which he says were not considered by the lower Appellate Court.

His point is that the plaintiffs, having purchased the interest of defendant No. 4, are estopped in this suit from denying the title of defendants Nos. 1, 2 and 3 to the land in dispute. I have always understood that a question of estoppel can only be raised by pleading and that if no question of estoppel has been raised in the pleadings, the Court will refuse to go into the matter, because after all the doctrine of estoppel is merely an extension of the doctrine of admission which depends oh the facts of each case, and that the Court is clearly unable to examine the facts unless those facts are pleaded. No doubt there is a stereotyped plea that the principle of estoppel is applicable to the suit, a plea which is to be found in every printed copy of written statement available in the Mofussil Courts, but no facts are pleaded in the written statement which would enable the Court to come to a conclusion whether the principle of estoppel is or is not applicable to the suit. On the contrary the whole written statement shows that the plaintiffs have no right at all to the land in dispute and that defendant No. 4, in spite of the purchase made by the plaintiffs, still continues as the tenant on the land and is liable to the defendants for rent. In my opinion it is not open to the defendants on this written statement to argue the question of estoppel. They emphatically assert that defendant No. 4 is still a tenant and that the plaintiffs have nothing to do with the land in dispute. I do not think that they can now turn round, because the findings of the Courts below are against them, and say that the plaintiffs are their tenants and must pay rent to them. But I do not propose to decide the question on a technical point. I desire to examine the ground on which it has been argued by the learned Vakil that the principle of estoppel is applicable to this suit.

He says, first of all, that the proprietors of the land, that is to say, defendants Nos. 1, 2 and 3 on the one hand and defendants Nos. 5 and 6 on the other hand entered into a compromise by which they became joint proprietors in respect of the land in suit. The argument is that the tenant is bound by the compromise entered into by the landlords. I am unable to agree with the learned Vakil that an admission made by a landlord is binding on the tenant at all. Secondly, it is argued by the learned Vakil that the sale certificate obtained by the plaintiffs shows that the land in dispute is situated in Touzi No. 6057 as well as in Touzi No. 6059. No doubt the sale certificate shows that, but I am unable to hold that because the sale certificate shows that the property in dispute is partly situated in Touzi No. 6057, therefore, the plaintiff, who is a complete stranger to the land, must be bound by a statement appearing in the sale certificate, especially when the Amin''s report shows that no portion of the land is situated in Touzi No. 6057. I do not think that even if the lower Appellate Court has misconstrued these documents, necessarily the judgment of the lower Appellate Court must and ought to be set. aside. These are items of evidence which have to be considered along with the other evidence admitted or proved in the case. The lower Appellate Court has considered a very important piece of evidence, that is to say, the Amin''s report, to which, as the lower Appellate Court says, no valid objection was taken at any time. The lower Appellate Court further considered the oral evidence in the case I cannot say reading the judgment of the lower Appellate Court that it did not consider the documents on which the learned Vakil so strongly relies.

In my opinion the finding of the lower 4-Appellate Court, however erroneous it maybe, is a finding of fact which is binding on me. I would, therefore, dismiss this appeal with casts.