Ram Prasad Singh and Others vs Ram Chandra Rai and Others

Das, J.—This appeal must succeed. The point which has been argued before us by Mr. Sushil Madhab Mullick, on behalf of the appellants receives considerable support from the decision of this Court in the case of Bansraj Lal v. Moti Lal [1918] 3 P.L.W. 360. The facts in that case were these: In a previous suit for recovery of arrears of rent, the plaintiff was compelled by Court to include and he did include under protest two plots recorded in the survey record as forming part of the tenancy of the defendant. Subsequently the plaintiff instituted a suit for the recovery of the possession of the two plots and for a declaration that the entry in the record-of-rights was erroneous. The defendant pleaded that the conduct of the plaintiff in the rent suit amounted to an estoppel by conduct within the meaning of Section 115 of the Evidence Act. It was held by Mullick and Atkinson, JJ., that there was no case of either admission or estoppel. In the present case the plaintiffs in the rent suit did not originally bring the disputed land within the scope of the suit. An objection was taken by the defendants and then the plaintiffs filed the following petition before that Court.

In the above suit, plot No. 1050 is the kasht guzashla of the petitioner, but the defendant has got it measured as a part of his holding at the time of the Survey. It has therefore, not been entered in the plaint. It is prayed that the plot No. 1050 be entered in the schedule to the plaint, which may be amended. With regard to plot No. 1050 a title suit will be subsequently instituted by the petitioner.

It seems to me that there was nothing in this petition which could possibly have misled the defendants in any way. In my opinion no question of estoppel arises at all, in this case. I must allow the appeal, set aside the judgment and decree of the Court below and remand the case to that Court for decision according to law. The appellants are entitled to the costs of this appeal; the costs incurred in the Court below will abide the result and will be disposed of by the lower appellate Court.

Adami, J.

I agree.