1. This appeal has been filed by the defendant against the judgment and decree of the Senior Subordinate Judge, Amritsar, dated March 24, 1972.
2. The following pedigree table will be helpful in understanding the facts of the case,
VIR SINGH_____________________________|_____________________________| | | | |Rami Sham Wasakha Ram SunderP1ff. Singh Singh Singh Singh(daughter) (son) (son) (deceased) (deceased)P1ff. P1ff. | |Ujagar HukmiSingh (Widow)Deft.
3. The property in dispute belonged to Sunder Singh deceased. After his death Smt. Hukmi inherited it. She died in the year 1960. The plaintiffs claimed that they were entitled to whole of her property being the brothers and sister of her husband. It is alleged that Ujagar Singh defendant took forcible possession of 1/4th share of the land and got mutation sanctioned in his name. Consequently the present suit has been filed by them for 1/4th share of the land.
4. The suit was contested by the defendant who inter alia pleaded that the plaintiffs were estopped by their conduct from filing the present suit and that the suit was barred by limitation. The other pleas taken by the defendant are not relevant for the purpose of the decision of the present appeal. The learned trial Court held that the plaintiffs were not estopped by their conduct from filing the suit and that the suit was within limitation. It consequently decreed the suit of the plaintiffs. The defendant went up in appeal before the Senior Subordinate Judge, Amritsar, who affirmed the judgment and the decree of the trial Court. He has come up in second appeal to this Court.
5. It is contended by the learned counsel for the appellant that the plaintiffs were estopped from filing the present suit. He submits that the finding of the first appellate Court is vitiated as he did not take into consideration the admission of the plaintiffs that the defendant came in possession of property of Sunder Singh during his lifetime and continued thereafter. He further submits that in view of the family settlement arrived at between the parties the appellant retained possession of 1/4th share and surrendered possession of the remaining property to the plaintiffs. According to the learned counsel this was the material fact which the Courts below did not take into consideration. It is also urged by him that if the aforesaid circumstance along with the other circumstances which are mentioned in the judgments of the Courts below is taken into consideration then it is established that the plaintiffs are estopped from filing the suit. On the other hand Mr. Sarin, learned counsel for the respondents, has vehemently argued that the question of estoppel is a question of fact and this Court cannot interfere with the decision of the first appellate Court on this issue.
6. I have considered the respective arguments of the learned counsel for the parties. In order to determine the question, a few facts may be noticed. Sham Singh, plaintiff, admitted that Ujagar Singh was cultivating the land of Sunder Singh during his lifetime. There is nothing to show that he was dispossessed by Smt. Hukmi after his death. If he had been dispossessed the plaintiffs would have brought that evidence. It is also relevant to mention that the defendant asserted in his statement that during the lifetime of Smt. Hukmi, he was cultivating the land. From the aforesaid facts it is evident that the defendant was in possession of the land during the lifetime of Sunder Singh and Smt. Hukmi and was also in its possession at the time of her death.
7. According to the defendant he handed over possession of 3/4th share of land to the plaintiffs after the death of Smt. Hukmi, as they agreed to give him 1/4th share in the land. This fact is proved from the Jamabandi relating to year 1963-64 (EX. D-9) wherein the parties are shown in possession of the total land left by Sunder Singh deceased, according to their shares. It is also significant that after the death of Smt. Hukmi, her land was mutated in the name of Ujagar Singh, Sham Singh, Wasakha Singh and Smt. Rami in equal shares vide mutation No. 1374 (Ex. P-4). At the time of attestation of mutation of Feb. 21, 1961, Wasakha Singh was present but he did not raise any objection. The other plaintiffs did not appear before the Attesting Officer. In case they had any objection regarding the attestation of the mutation in favour of Ujagar Singh it would have been raised at that time.
8. There are yet two other circumstances which further prove the assertion of the appellant. The first is that some land had been mortgaged by Sunder Singh in favour of Puran Singh, D.W. 1 and Sewa Singh, D.W. 3. The plaintiff-respondents, along with the appellant paid the mortgage amounts to Puran Singh and Sewa Singh vide receipts Exhibits D-1 and D-2 both dated April 11, 1967, and redeemed the land. The appellant thus contributed his share of the redemption amount. The second is that Sham Singh, Wasakha Singh and the appellant sold a Taur belonging to Smt. Hukmi, after her death, for an amount of Rs. 500 and the appellant got his 1/3rd share of the sale consideration.
9. It has been pleaded by the appellant in the written statement that as a result of family settlement he gave up his possession of 3/4th of the land left by Smt. Hukmi which he had been occupying as a tenant. From the narration of the facts already given above, it is evident that the aforesaid plea is correct as admittedly the appellant was in possession of the land belonging to Sunder Singh in his lifetime. Thereafter, he remained in its possession even during the lifetime of Smt. Hukmi. It appears to be correct that he retained possession of the land to the extent of his share and gave the possession of the remaining land to the respondents as his title to 1/4th share had been admitted by them. If the respondents had not agreed to give him any property, he would have never given its possession to them. After the mutation, the plaintiff-respondents had been admitting his right in the property and had been joining him at the time of redeeming properties of Sunder Singh and alienating his property.
10. Enunciating the doctrine of estoppel, the Supreme Court has held in Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055 as follows:
'To invoke the doctrine of estoppel embodied in S. 115, Evidence Act, 1872, three conditions must be satisfied: (1) representation by a person to another, (2) the other shall have acted upon the said representation, and (3) such action shall have been detrimental to the interest of the person to whom the representation has been made. Where the first two conditions are satisfied but the third is not, there is no scope to invoke the doctrine of estoppel.'
11-A. The above observations fully apply to the facts of the present case as the appellant has been successful in proving all the ingredients.
11. In addition it is relevant to high-light that the present suit has been filed after about 9 years after the attestation of mutation. This circumstance also goes a long way to show that the respondents did not want to challenge the right of the appellant as they had obtained possession of the property after giving him 1/4th share in the property. Moreover a Division Bench in Sewti Devi v. Kanti Parshad, AIR 1973 Punj and Har 126 has held that when the claim of the defendant was admitted and mutation was allowed to be attested in his name by the plaintiff, the plaintiff cannot be allowed to change the position after the lapse of many years. After taking into consideration, all the above circumstances, I am of the view that the plaintiff-respondents are estopped from filing the present suit.
12. The only contention of Mr. Sarin is that the question of estoppel is a question of fact and the finding of the first appellate court cannot be interfered by the High Court on the question of estoppel. In support of his proposition, he placed reliance on two judgments of supreme Court in D. Pattabhiramaswamy v. S. Hanyamayya, AIR 1959 SC 57 and Bithal Dass Khanna v. Hafiz Abdul Hai, (1969) 2 SC (N) 481. I agree with the proposition that the finding of a fact arrived at by the first appellate court is binding on the High Court in second appeal but if the finding of fact is vitiated, the High Court may interfere. I, however, do not agree with the contention of Mr. Sarin that a question of estoppel is a question of fact and cannot be examined in second appeal. It is not a question of fact but an interference of law from facts proved and is, therefore, open to examination by the High Court in second appeal. In the present case as already observed, the first appellate Court omitted to take into consideration certain facts which stood proved. Therefore, even if it is assumed that it is a finding of fact it is not binding on the High Court. The cases referred by Mr. Sarin do not deal with question of estoppel and therefore, these are not applicable.
13. For the reasons recorded above, I accept the appeal, set aside the judgment and decree of the appellate Court and dismiss the suit of the plaintiffs with costs throughout. Counsel fee Rs. 150/-.
14. Appeal allowed.