Authored By : Atkinson, B.K. Mullick

Atkinson, J.

1. The plaintiff seeks for a declaration in this suit that survey plots Nos. 484, 483, 1224 and 1223 constitute his property, and that so far as defendant No. 1 is in possession of plots Nos. 1224 and 1223 his possession there of is unlawful, and that the Court may be pleased to grant to the plaintiff a declaration that plots Nos. 1223 and 1224 constitute his property and that consequential upon such relief, it may be declared that the entry in the Record of Rights is erroneous and that plots Nos. 1224 and 1223 do not form part of the holding of defendant No. 1 and that defendant No. 1 has no claim, right or title thereto.

2. On the 25th April 1902, the defendant No. 1 purchased from the defendants Nos. 2 and 4 by a kobala 2 bighas 17 dhurs of land on the extreme west of their holding. On the 26th April 1902, the plaintiff purchased from the defendants Nos. 2 and 4 by a kobala a plot of land on the eastern portion of the holding comprising 3 bighas 2 cottas 7 dhurs. Between the parts or portions of the holdings originally purchased by the defendant No. 1 and the plaintiff there was 1 bigha of land, and this 1 bigha was subsequently purchased by defendant No. 1 by a kobala dated the 25th January 1910. Thus the actual area which defendant No. 1 purchased by his two conveyances would amount to 3 bighas 17 dhurs of land as against 3 bighas 2 cottas 10 dhurs purchased by the plaintiff; and thus the two areas held together form and constitute the entire area of the original holding belonging to the defendants Nos. 2 and 4. The areas purchased by the plaintiff and defendant No. 1 were stated in the conveyances, and from them the total are a would appear to be 6 bighas 3 cottas 7 dhurs for the entire holding which originally belonged to defendants Nos. 2 and 4. Thus it is impossible to say that the areas of the plots described in the conveyances of each party were accurate. From the recent survey there appears to be a slight increase in area with regard to the portion of the holding purchased by defendant No. 1 and with regard to the portion purchased by the plaintiff as compared with the area described in their respective conveyances.

3. It appears that the plaintiff was the landlord of the lands which belonged to the defendants Nos. 2 and 4. He acquired plots Nos. 484 and 483, 1224 and 1223 as representing the area purchased and conveyed to him by his kobala dated the 26th April 1902.

4. At the survey record of 1912, it appears that plots Nos. 1224 and 1223 were surveyed as forming part of the holding within the tenancy of defendant No. 1, he being described as a tenant under the plaintiff. Thus in the Record of Rights plots Nos. 485, 487, 486, 1224 and 1223 are recorded as forming the holding of defendant No. 1.

5. The plaintiff contends that the plots Nos. 1224 and 1223 have been wrongly recorded as forming part of the tenancy of defendant No. 1 and he brings his suit to have his rights to these two plots declared.

6. There would have been no difficulty were it not for the fact of an antecedent rent suit, which had been brought by the plaintiff against the defendant No. 1 to recover rent for the holding which the defendant then held under the plaintiff as comprised of plots Nos. 485, 486 and 487.

7. The suit was brought for recovery of arrears of rent due. At the hearing of that rent suit, a point was taken by the defendants that the landlord was seeking to recover rent only for a part of the holding; and by reason of the non-inclusion of the plots No. 1224 and 1223 recorded in the survey record as forming part of the tenancy of defendant No. 1 the action of the plaintiff against the defendants was not maintainable. The learned Judge who tried the case came to the conclusion that the plaintiff as landlord was hound to include the entire area recorded in the Record of Rights as forming the holding before he could recover, by a suit, arrears of rent.

8. The landlord most reluctantly consented to Amend his plaint. He amended his plaint after taking objection on precise and definite terms, which are embodied in Exhibit F, which is filed as part of the record in the suit. The plaintiff stated there and then that he consented to amend his plaint, but he did so under protest and expressly alleged that though he made the amendment by the addition of these two plots as recorded in defendant's possession, he nevertheless had not given his assent to the proposal that the disputed plots Nos. 1224 and 1223 formed part of the defendants' holding. He also expressly set out in that petition that he would bring an action at a later stage to recover the possession of those two plots and to establish his title thereto.

9. Now the first point taken by Mr. Mullick on behalf of the defendant No. 1 in this second appeal is that the rent suit brought against the defendant No. 1 by the plaintiff amounted to an estoppel by conduct within the meaning of section 115 of the Indian Evidence Act, 1872; and Mr. Mullick contended that in cases like the present one, the plaintiff must he deemed to have admitted that the defendants' holding was covered by the inclusion of the disputed plots together with other plots, and an amendment having been made by the plaintiff in accordance with the objection alleged by the defendants, the plaintiff is estopped now from questioning the character and description and the area of the holding as admitted by the plaintiff in the previous rent suit.

10. I not think that Mr. Mullick's argument is well founded, nor do I think be has approached this aspect of the case upon any same line of principle, which can lie deducible from the authorities. No doubt & decision in a rent suit brought by a plaintiff against a defendant may be such as to amount to an estoppel in certain cases as to the character and area of the tenant's holding, but it is clear and well established law, not only in India but also in England, that there can be no estopped arising out of a legal proceeding when the truth of the matter appears on the face of the proceedings. The person who claims the benefit of estoppel must show that he was ignorant of the truth in regard to the representation made by the other party in the course of the suit. When both parties are aware of the facts of the case, it is absurd to refer to the doctrine of estoppel.

11. Now the authorities for this proposition are to be found in Udit Narain Singh v. Golabchand Sahu  27 C. 221 : 26 I.A. 236 : 7 Sar. P.C.J. 628 : 14 Ind. Dec. (N.S.) 146 (P.C.), a Privy Council case, Honapa v. Nursapa 23 B. 406 : 12 Ind. Dec (N.S.) 270, Ranchhodlal v. Secretary of State : 9 Ind. Cas. 765 : 35 B. 182 : 13 Bom. L.R. 92, Beni Ram v. Kundan Lal 21 A. 496 : 1 Bom. L.R. 400 : 3 C.W.N. 502 : 26 I.A. 58 : 7 Sar P.C.J. 523 : 9 Ind. Dec. (N.S.) 1022 (P.C.) and Lopez v. Muddun Mohun Thakoor  13 M.I.A. 467 : 4 W.R. (P.C.) 11 : 5 B.L.R. 521 : 2 Suth. P.C.J. 336 : 2 Sar. P.C.J. 594 : 20 E.R. 625.

12. It appears to us that no representation was made by the plaintiff to the defendant, nor did the defendant, by reason of anything that was said or done by the plaintiff in the course of the rent suit, alter or change his possession so as to affect his rights in ignorance of the true facts of the case. Therefore on that ground alone, it would appear to us that the question of estoppel does not arise so as to be available as an argument in the defendant's favour. But it also appears clear from the record itself that the defendant knew what the exact position was and that he was by no means deceived by reason of anything that had taken place. He knew himself that he took objection as to the maintainability of the rent suit; he knew that the plaintiff had to amend the plaint under protest; he knew that the plaintiff had filed an objection embodied in Exhibit F and he knew that the plaintiff intended at a later stage to bring a suit to establish his title to the plots in suit. In the face of all these facts which the defendant must have been deemed to know and did know in fact, it is absurd to contend that the judgment in the rent suit operates as an estoppel in this suit.

13. The second point taken by Mr. Mullick is that if there is no estoppel by conduct there is estoppel by matter of record, and that the judgment and the record in the rent suit, operates a res judicata in the present suit. There are two answers to that argument. The first appears to be, having regard to the fact that there is no judgment before us, we do not know what were the issues which were framed, nor the decision that was given in that suit. Therefore that fact really disposes of the matter, because the onus was upon the defendant to show from the record that he was found by the Court to be in possession of a certain area of laud as tenant to the plaintiff; but he has failed to do that. For the reasons already stated with regard to the application of the doctrine of estoppel there is no force in the argument as to res judicata and, in our opinion, the judgment in the rent suit does not operate at any rate as a bar to the maintainability of the present suit.

14. The third point urged by Mr. Mullick is that each party should only be entitled to so much of the land as is specified in the conveyance. He also urged that the defendant being the first and last purchaser was entitled to any excess there might be in area compared with the area conveyed and the area as it now is after survey. We have compared the areas set out in the conveyances with the area of the original holding of defendants Nos. 2 and 4 and we think that there is substantially no difference in the area.

15. We agree with the conclusion of the learned District judge at which he has arrived, namely, that plots Nos. 1224 and 1223 fall within and form part of the property which was purchased by the plaintiff, and we accordingly dismiss this appeal with costs.

B.K. Mullick, J.

I agree.