R.P. Mookerjee J.
1. This is an appeal on behalf of defendant 4 in a suit brought by the plaintiff for declaration of her title to the disputed lands and for recovery of khas possession thereof.
2. The only material question in issue in this appeal is whether Rajlakshmi Dasi, defendant 4, has got a subsisting right of tenancy or not. It will not be necessary to go into the series of litigations in respect of this holding but we may limit ourselves to the relevant facts pertinent for a decision of the only point which is raised in this appeal. The holding in question originally belonged to three brothers Krisha, Rakhal and Tulsi. The plain-tiff Sushilabala is the daughter-in-law of Krishna. Defendant 2, Sashi, is the son of Bakhal and defendant 4, the appellant before this Court, Rajlakshmi, is the wife of Tulsi. In 1929, the landlords obtained a rent decree against the three brothers in respect of arrears of rent due in respect of this holding. In the execution proceedings which followed one Bishnupada Chakravarty purchased the holding in July 1931 and ultimately took possession. The next year, it is alleged by defendant 4, Bisbnupada Chakravarty had created an under, raiyati tenancy in favour of Rajlakshmi, defendant 4. The creation of this subordinate tenancy is denied by the plaintiff. There had been successive suits for the realisation of arrears of rent and in one of those, namely, Rent Suit No. 244 of 1938, brought by one set of landlords, namely, the Banerjis, impleading the other co-sharer landlords, a decree was obtained. In execution of the said decree the decree-holders, the Banerjis, purchased the holding. In these proceedings Sushila who is alleged to have purchased the interest of the tenant in execution of an earlier rent decree as also Bisbnupada were made parties. After the purchase by the Barerjis an application for setting aside the sale was filed by Railakshmi under Section 174, Bengal Tenancy Act, alleging that she was interested in the property sold. In the presence of Sushila and Bishnupada among others the sale was set aside and Sushila got back the property. Subsequently, Rajlakshmi brought a suit for contribution against Sushila and Bishnupada for realising a portion of the amount deposited by her to have the sale set aside. Rajlakshmi's suit bad been-brought before the present suit was filed on 11th December 1943 in the Court of 2nd Munsif Baruipore. The suit out of which this appeal arises was filed by the plaintiff for declaration of her title and for khas possession on the allegation that Rajlakshmi bad neither any title nor any right to possess a portion of the holding. While this suit was pending in the trial Court, the suit for contribution brought by Rajlakshmi was decreed. One of the issues raised in the said suit for contribution was whether the under-raiyati as claimed by Rajlakshmi actually existed or not. That point was decided in favour of Rajlakshmi. As the suit was brought in the Court of Small Causes, the decision in that suit would not be res judicata in the present proceedings. It was, therefore, necessary for the Court to go into that issue once again and to come to a decision on the facts and materials available.
3. The trial Court dismissed the plaintiff's Claim as regards khas possession on the ground that the plaintiff was estopped from raising the plea that defendant 4 Rajlakshmi was not a tenant under her as she had not raised any objection to Rajlakshmi filing the application for setting aside the sale which had been brought about by the Banerji landlords in execution of the decree in Rent Execution case 368 of 1939 while executing the decree obtained in Rent suit No. 244 of 1938. The learned Munsif further held that on the evidence Rajlakshmi had been able to prove that the tenancy as alleged by her had been created by Bishuupada while his interest subsisted and the said tenancy had not been terminated legally.
4. An appeal was taken to the Court of the Additional District Judge, 24-Perganas, by the plaintiff. The learned Additional District Judge came to the conclusion that on the facts of this case there could be no estoppel against the plaintiff and on the merits also be came to the conclusion that the dakhilas which bad been produced by Rajlakshmi could not be believed. The decision on the question of the factum of the creation of the tenancy was rested solely on the point as to whether these dakhilas could be believed or not. In this view, the plaintiff's suit was decreed in full. The plaintiff's title was declared and she was held to be entitled to get khas possession of the suit-lands.
5. The present appeal is on behalf of defendant 4, Rajlakshmi, and the questions to be considered in this appeal are (1) whether the plaintiff is estopped from questioning the subordinate tenancy and (2) whether on the facts, the tenancy has been proved to exist or not.
6. As regards the question of estoppel, the relevant facts as regards the conduct of the parties in Miscellaneous Case No. 101 of 1941 for setting aside the sale in Rent Execution case No. 368 of 1939 have already been stated. The application on which the miscellaneous case was started was one under Section 174, Bengal Tenancy Act. The judgment-debtor or any person whose interests are affected by the sale are the only persons who are entitled to make an application. The claim put forward by Rajlakshmi was that she had a subordinate tenancy which would, if the sale were to be effective, be liable to be destroyed or affected. Sushila, the present plaintiff, was the person who was the judgment-debtor in that suit and it was her tenancy right which had been lost by the sale. Sushila had notice of the application. She did not object to the claim put forward by Rajlakshmi and got the fullest advantage of the result of the proceedings initiated by Rijlakshmi. It was not merely a case where Sushila had simply remained silent but in addition she had got a substantive benefit as a result of the action initiated by Rajlakshmi. In Thomas Barclay v. Hossain Ali Khan, 6 C. L. J. 601, it was held that no general rule could be formulated as to when silence might be unlawful in transactions between men at arms length. The presence of the silent party, when the transaction takes place, makes a much clearer case for estoppel than when he is absent. Where a party fails to make his rights known (as in the present case, the right of Sushila to claim that Rajlakshmi held no subordinate tenancy in respect of this holding giving her a right to initiate the proceedings for setting aside the sale), where fairness and good conscience require that the party should do so to protect the interest of others that party cannot be heard as against them to assert such rights. The case on behalf of defendant 4 becomes the stronger as the plaintiff Sushila had obtained the benefit under the proceedings which had been started by the Rajlakshmi. While considering the effect of silence, the Court has further to consider whether there was any occasion for words and reasonable explanation of the silence. Here was a landlord who did not challenge the title of the applicant under Section 174, Bengal Tenancy Act, and the presence of the silent party when the transaction took place made out a much clearer case for estoppel than if she had been absent. The present plaintiff had by her conduct induced defendant 4 to proceed on the basis of a particular position deliberately taken up in the previous proceedings and she cannot be allowed to approbate and reprobate. This conduct on the part of the plaintiff may be taken to lead to a species of estoppel which may be described to be an intermediate one between estoppel by record and estoppel in pais. This doctrine applies not only to successive stages of the same suit but also to suits other than the one in which the position had been taken up. A party must not be heard to allege things contradictory to each other. The doctrine of approbate and reprobate is not applicable in the case where there are clear provisions of a statute but - applies only to the conduct of parties. On the facts of the present case, it is in-contestable that the plaintiff is estopped from taking up a position which is altogether contradictory to the one which she had adopted in the earlier proceedings. It mast therefore be held that the plaintiff is estopped from raising the plea in the present suit that defendant 4 is not a subordinate tenant as claimed by her.
7. Apart from the question of estoppel, the judgment of the Court of appeal below cannot be supported on the fact of the proof of the tenancy. The learned Additional District Judge has proceeded only on certain circumstances about the proof as made available of the genuineness of the dakhilas. Whether the dakhilas are genuine or not ought not to have been decided without a reference to the conduct of the present plaintiff in the sale set aside case: namely, Miscellaneous case No. 101 of 1941. It must have been known to Sushila, the present plaintiff, when the proceedings for setting aside the sale were in progress that Rajlakahmi had no title to the laud, holding a subordinate tenancy, if the claim as made by the plaintiff is true. The present plaintiff however did not raise any objection to the claim as put forward by Rajlakshmi and that conduct on the part of Sushila is a very strong piece of evidence which would have to be taken into consideration for determining whether the tenancy has been proved or not. If that fact is taken into consideration apart from the question of estoppel, as already discussed above, I have no doubt that the Court of appeal below would have come to the conclusion that the fact of the subordinate tenancy having been created by Bishnupada was proved and made out.
8. The appeal must accordingly be allowed. The judgment and decree of the Court of appeal below are set aside and those of the Court of first instance restored. The claim for khas possession is dismissed. The appellant will be entitled to the costs of this Court and of the Court of appeal below.
9. Leave to appeal under Clause 15 of the Letters Patent has been asked for and is refused.