Rampini and Pratt, JJ.
1. This is an appeal against a decision of the Subordinate Judge of Hooghly, dated the 3rd January 1900, passed in a suit for possession of certain land after proving title thereto.
2. The pleader for the appellants contends that the proceedings of the Subordinate Judge are wrong, inasmuch as they are subsequent to the order of remand passed by him on the 5th of August 1898; and he contends that this order of remand and the subsequent proceedings are invalid and null and void, inasmuch as the case, in the circumstances, should not have been remanded.
3. The facts are these. The plaintiffs and the contending defendants, while the case was in the Court of, the Munsiff, presented an application to him asking that a pleader might be appointed as Commissioner to ascertain who held the land on either side of the Vial in dispute, and agreed that, if the plaintiffs were found in possession of such land, they should get a decree, while if the defendant No. 1 was found in possession, the suit should be dismissed.
4. The Munsiff acted upon this agreement between the parties and appointed a Commissioner in the case, and that Commissioner reported that the plaintiffs were in possession of the land on both sides and that the defendants had been in possession in previous years. The defendant No. 1 objected that, although the plaintiffs were found in possession in the current year, the defendants were in possession in previous years, and that therefore the decision should not have been given in favour of the plaintiffs.
5. The Munsiff, however, recorded that, according to the agreement of the parties, they had solemnly bound themselves down to abide by the decision of the Commissioner as to present possession, and he goes on to say: 'All the verbs in the application are in the present tense. I cannot therefore hear the defendant's objection and reject it,' and he accordingly gave the plaintiffs a decree in accordance with the Commissioner's report.
6. The defendant No. 1 then appealed to the Subordinate Judge, who, on the 5th August 1898, set aside the decree of the Munsiff. He held that the disposal of the case on a certain point by agreement of the parties is only provided for in Sections 150 and 151 of the Code of Civil Procedure, and that he could not find any other provision under which the case might come and that, strictly speaking, it was doubtful whether the present case could be governed by the provisions of those two sections. And he thought that the case should go back to the first Court for trial de novo and remanded it accordingly.
7. Now, it is this order of the Subordinate Judge, dated the 5th August 1898, which the appellant impugns in final appeal against the final decision of the Subordinate Judge after remand. The Munsiff, after remand, gave a decision in favour of the plaintiffs, and the Subordinate Judge, on the 3rd January 1900, reversed that order on the merits.
8. We think that the plea of the appellant in this case must prevail. It seems to us that the agreement between the parties to abide by the decision of the Commissioner on the fact of possession is a perfectly legal and valid agreement, and that, when that agreement was given effect to and carried out, it would be inequitable to allow the defendants to resile from it, and that they are estopped in equity from so doing. It may be that the provisions of Sections 150 and 151, Civil Procedure Code, are not, strictly speaking, applicable to this case, inasmuch as Section 150 provides for the question of fact or law being stated in the form of an issue and being referred to the finding of the Court; whereas, in this case, the question of fact was stated in the form of an issue and referred to the finding, not of 'the Court, but of the Commissioner. But it seems to us that the principles laid down in Section 150 and 151 are applicable to this case, and that the agreement, having been carried out, the defendants are equitably estopped from resiling from and impugning the decree which was given by the Court of 'First Instance in accordance with the finding upon that issue which they agreed to refer to the decision of the Commissioner. And we are fortified in this view by the case of Protap Chunder Dass v. Arathoon (1882) I. L. R. 8 Calc. 455. In this case the judgment-debtor Arathoon had been arrested in execution of a decree. The parties came to a certain agreement among themselves and, in accordance with that agreement, the judgment-debtor was released from jail, and as a condition precedent to his being so released, he agreed not to appeal. As soon as he was released, he proceeded to break his agreement and appealed from the decree in execution of which he had been arrested. The view of the Lower Court in this case was that the parties could not enter into an agreement in respect of legal proceedings and that the judgment-debtor could not waive the right of appeal conferred upon him by law. But the judgment of this Court was to the effect that the judgment-debtor, having induced the decree-holder to believe and having undertaken that he would not appeal, and having, by such representation and undertaking, procured his own release from jail, was estopped from acting contrary to his deliberate representation and undertaking.
9. Now, the principle in the case of Protap Chunder Dass v. Arathoon (1882) I. L. R. 8 Calc. 455. appears to us to apply to the present case. The defendants in the present case solemnly agreed to refer a certain issue of fact to the Commissioner and to abide by his decision upon that issue, and impliedly not to appeal against the decree given in accordance with that view. The agreement was fully carried out. The Commissioner gave his decision and a decree was made in accordance with that decision. The defendants are therefore estopped from impugning that decree and from appealing against it or asking the Subordinate Judge to remand the case for trial de novo. In this view of the matter it would seem to us that the order of remand passed by the Subordinate Judge is bad and that all subsequent proceedings accordingly fell to the ground.
10. The learned pleader for the respondents further argues that there was misconduct on the part of the Commissioner, inasmuch as he did not take all the evidence which the defendants intended to adduce before him. But it appears to us that this contention is only the result of an after-thought, because, before the Munsiff on the 18th of February 1898, no such objection to the Commissioner's finding was raised. The sole contention of the defendants then was that they had never agreed to abide by the decision of the Commissioner on the question of present possession. That was the only objection raised to the Commissioner's finding. But the Munsiff distinctly found that the agreement of the parties was that the case should be decided according to present possession.
11. We therefore cannot now give effect to this further contention of the respondents' pleader, and we accordingly set aside the order of remand passed by the Subordinate Judge and all subsequent proceedings and restore the decision of the Munsiff, dated the 18th of February 1898, deciding the case in favour of the plaintiff.
12. This order carries costs in all the Courts.