1. This appeal, in my opinion, must succeed. The facts are all admitted and the only question of law involved is whether the plaintiff is barred from obtaining relief on the principal of acquiescence.
2. It is common ground that in old khata of khewat bearing No. 4 was included the plot in suit. The Khata No. 4 came to be designated as Khata No. 1 in the settlement which took place in 1306 F. Similarly old Khata No. 5 came to be designated in the Settlement of 1306F. as Khata No. 9. To avoid confusion, I will speak in terms of the new khatas. The plot in suit was a part of the Khata No. 1 in which the plaintiff is a co-sharer, but in which the defendants bad no share. In Khata No. 9, similarly, the defendants were co-sharers but not the plaintiff. In the Settlement of 1306F., by some mistake, the plot in suit, which was admittedly a property of the plaintiff and his co sharers, came to he omitted from Khata No. 1 and came to be recorded as a part of Khata No. 9. There was a partition in plaintiff's khata in the year 1908 and the partition was carried out in disregard of the fact that the plot in suit also formed a part of the khata. Subsequently in 1922 the defendants' Khata No. 9 came to be partitioned among the defendants and the plot in suit was included as a part of the khata and was made the subject-matter of the partition. The plot in suit, it is said, fell into the share of the defendants alone. The plaintiff, who has all along been in possession, was sued for ejectment by the defendants with the allegation that the plaintiff was the defendants' tenant. This was of course, in the revenue Court. The plaintiff pleaded that he was a proprietor of the land and was not a tenant. He was referred to the civil Court, with the result that the present suit was brought by him.
3. It has been found that the plaintiff as a co-sharer in Khata No. 1 is entitled to the plot in suit and that he is in possession. There is no question of any lease having been granted to him. The plaintiff being in possession and his title having been established he ought to have succeeded. But the learned Judge of the lower appellate Court reversed the decision of the first Court on the ground that the plaintiff was estopped from maintaining the suit. The argument, as I understand it, is this: that the plaintiff ought to have interfered when the defendants' Khata No. 9 was being partitioned. The learned Judge apprehends that by plaintiff's omission the plaintiff is now depriving the defendants from a plot of land which they got on partition and this he should not be entitled to do.
4. I need not discuss what constitutes acquiescence, as in a very recent case a Bench of this Court explained the law: vide Jai Narain v. Jafar Beg : AIR1936All324 . It is perfectly clear to me that the principle of acquiescence has no application to this case. There is no finding to the effect that the plaintiff knew that the defendants were partitioning his land as theirs and the plaintiff kept silent in order that or knowing that the defendants were likely to be prejudiced by the partition and by a subsequent claim on the part of the plaintiff. As the facts go, the plaintiff has done nothing, He is as much in quiet enjoyment of the land as he was before. It is the defendants who started a claim for ejectment and failed to substantiate their title They must be taken to have known that they had no title and that the plaintiff was not their tenant.
5. I allow the appeal, set aside the decree of the Court below and restore that of the Court of first instance by which the plaintiff's suit was decreed with costs. The plaintiff-appellant will have his costs throughout, including in this Court, counsel's fees on the higher scale.