Tilak Rai vs Pargash Rai and others

Fazl Ali, J.—This appeal arises out of a suit brought by the appellant to recover possession of 13 kathas 10 dhurs out of survey plot No. 3500. It appears that one Bhagelu Rai held 38 bighas odd lands in three tauzis as follows; 26 bighas odd in tauzi No. 3757 of Raja Mollchand; 7 bighas in tauzi No. 7210 of Jagdeo Singh and 5 bighas and and 8 kathas in tauzi No. 7218 of Birja Rai. He died in June 1917 leaving eight persons as his heirs including one Doodhari and a person named Bigu Rai to whose interest the plaintiff claims to have succeeded. The land in dispute is situated in the tauzi of Birja Rai and the plaintiff in claiming it asserts that there was a private partition among the eight heirs of Bhagelu and Bigu''s share was half of the land of tauzi No. 7210, while the other half of the lands of that tauzi was given to Deodhari and Bigu also got one-eighth share in tauzi No. 7218 which is the subject-matter of the suit. It is also alleged that after the death of Bigu there was another partition between his heirs, the plaintiff being one of them, and the disputed land was allotted to his share. The defence on the other hand is that after the death of Bhagelu some litigation started and in consequence of an arrangement between the eight heirs of Bhagelu, Bigu and Deodhari agreed not to take any share in the properties left by him as they were not prepared to participate in the costs of the litigation with the result that the litigation had to be carried on by the remaining six persons. It was contended that the plaintiff as the heir of Bigu was estopped from questioning the arrangement and claiming the properly now after the death of Bigu (who had never claimed it during his life) in contravention of the arrangement.

The Courts below have in agreement with each other rejected the plaintiff''s story and accepted the defence. They have held that the plaintiff is not entitled to get possession of the disputed land and he is estopped from questioning the arrangement by reason of which the six heirs of Bhagelu, other than Doodhari and Bigu, incurred expenses to secure the land after righting several cases in respect-thereof.

The only question which was argued in this Court was whether the decision of the Court below that the plaintiff was estopped from claiming the disputed land is correct. Before dealing with the question however, I wish to state that some of the defendants are also heirs of Bigu and they have denied that there was any amicable arrangement between the heirs of Bigu by reason of which the disputed land was allotted to the plaintiff. It has been found also by the Courts below that there was no such arrangement and therefore even if the plaintiff is held, to be entitled to recover possession of any lands, he can recover possession of only 2 kathas. He can also, as is conceded by the learned advocate for the appellant, recover possession of this area only upon payment of the proportionate share of the costs of the litigation incurred by the defendants. If however it is found that the view of the Courts below is correct as to estopoel, he cannot recover any portion of the disputed land.

The question of estoppel is a serious one and I was to some extent impressed by the arguments of Mr. Parmeshwar Dayal who has tried to show that there can be no estoppel in the present case. His chief argument is that the defendants in all probability would have carried on the litigation even if Bigu and Deodhari had declined to participate in the costs without giving up their share of the property and it is therefore contended by him that strictly speaking S. 115, Evidence Act, does not apply to this case. S. 115 provides:

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.

In the present case it has been found that Bigu had assured the defendants that he would not take his share in the lands left by Bhagelu as he did not wish to participate in the costs of the litigation and acting on this representation the defendants carried on the litigation and secured the property for themselves. It appears that the defendants instituted a suit against Raja Motichand who was the landlord of tauzi No. 3757 by which they sought to have their rights as the heirs of Bhagelu declared and also asked the Court to set aside the decree obtained by the landlord against one Raj Rani who according to them had no interest in the lands. According to the genealogy of the family furnished by the plaintiff in that suit Bigu and Deodhari were also heirs of Bhagelu but it is said that on account of the arrangement already arrived at between the defendants and Bigu and Deodhari the defendants claimed the entire property left by Bhagelu for themselves and they also alleged to have taken possession of those properties. It has also been established that Bigu never claimed any share in the disputed land during his lifetime and it is also clear that the other cosharers of the plaintiff have not come forward to claim any share in the property. It also appears that the defendants were allowed by Bigu to take possession of the property under the claim that they were solely entitled to it and he also allowed them to claim the property for themselves and to the exclusion of himself and Deodhari in the litigation with Raja Motichand. Having regard to all the circumstances of the case I find some difficulty in disagreeing with the Courts below that the principles of estoppel and acquiescence are not applicable to the facts of the case. As I am not prepared to differ from the Courts below, it appears to me to be unnecessary to remand the case for the purpose of ascertaining the plaintiff''s share in the cost of the litigation incurred by the defendant. It is apparent that in any case the plaintiff will get very little out of the property claimed by him. I would in these circumstances dismissed the appeal. There will be no order as to costs.

This is not a fit case for appeal under the Letters Patent.