V.D. Bhargava, J.
1. This is a second appeal arising out of a suit for possession of a property, house No. 211, in village Pareli, Pargana Haidrabad, district Kheri.
2. The facts of this case are that this house belongs to one Chandan, He had two sons Bhanj and Bhawani, Bhawani had three sons, Baldeo, Niranjan Lal, and Mangali. Baldeo's widow was Tikana and their son was Gulab. On 5-10-1929 Baldeo mortgaged this house along with some cane crop and a she-buffalo for a loan of Rs. 250/- with one Pandit Jagannath. The plaintiff Chhotey Lal had obtained a decree previous to this mortgage on 27-10-1927 against Niranjan Lal and in execution of the said decree this house along with another house, No. 204, was attached.. The property does not appear to have been sold under that attachment.
But on 1-2-1930 Niranjan Lal mortgaged these two houses to the plaintiff. On 27-5-1937 Niranjan Lal converted the mortgage into a sale. The plaintiff was never able to obtain possession of either of the houses. In the year 1938, after obtaining the sale deed from Niranjan Lal, the plaintiff brought a suit for possession against Sm. Tikana and her son Gulab (as Baldeo was dead), Niranjan Lal and Mangali,
In this suit counsel for Gulab came and said that he had no concern with the property in dispute and he wanted exemption from the suit. It appears that Gulab along with, his mother were exempted from the suit and a compromise decree was obtained by virtue of which Chhote Lal was given possession over house No. 204 while over the other house, No. 211, possession was not delivered to Chottey Lal the plaintiff. Thereafter the present suit was filed out of which this second appeal arises for possession on the ground that on 1-5-1941 the plaintiff obtained a sale deed from Gulab of this house for a sum of Rs. 50/-.
3. The plea of the defendant, inter alia, was that the plaintiff had no right to bring the suit because his predecessor-in-interest, i.e., Gulab, had already made a statement in the previous suit that he had no concern with this property. There were other pleas also, but we are not now concerned with the other pleas raised and the only question argued was about estoppel.
4. Learned counsel for the appellant had argued that the plea of estoppel was not pleaded in the written statement. Paragraph 12 of the written statement of Mangali clearly gives out all the facts about the counsel of Gulab having made that statement and in para 17 of the said statement it has definitely been pleaded that the plaintiff is now estopped from claiming the property. In these circumstances the plea of estoppel had been pleaded categorically in the written statement.
5. The next contention of learned counsel for the appellant was that this statement of Gulab cannot create any interest in favour of Mangali and Mangali is not entitled to this house. The question is not whether that statement, can create any title in favour of Mangali, but the question is whether after that statement, could Gulab create any title in favour of the plaintiff?
If after that statement the plaintiff, who is ft purchaser from Gulab, will have no right or interest, it is not necessary for the defendant in the case to establish his title. If he can show that the plaintiff has no title to maintain the suit the plain-tiff's suit would be dismissed irrespective of the fact whether Mangali had any right or not. What we have to see is whether after that statement any title can be created in favour of the plaintiff.
6. The present statement clearly comes under Section 115, Evidence Act. It was a declaration of a party and acting on that statement he was removed from the array of the parties, and possesssion over one house was given to Chhotey Lal and one house was left with Mangali. In the circumstances that statement would be binding.
7. Learned counsel for the appellant had further urged that the statement may have been made in ignorance or under a wrong impression and, therefore, it will not be binding. There can be no presumption in favour of a statement having been made in ignorance or on misrepresentation. If a certain statement is made either in ignorance or under some wrong impression it has definitely to be proved, and the best person to prove was Gulab, who was never produced in this case.
If it has not been established that it was made under any of these circumstances the statement shall be binding on the party who made it and his representatives. The present plaintiff is clearly the representative of Gulab and, therefore, after that statement he cannot claim any title from Gulab.
8. I see no force in this appeal and it is accordingly dismissed with costs.