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Aunath Nath Deb Vs. Bishtu Chunder Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal783
AppellantAunath Nath Deb
RespondentBishtu Chunder Roy and ors.
Cases ReferredPickard v. Sears
Excerpt:
rent - suit--estoppel--evidence act, section 115. - .....the rent as against the plaintiff.4. it appears that some time ago, in the year 1259 (1852), one isur chunder purchased, and was the undoubted owner of, this darpatni estate.5. in the year 1265 (1858), isur chunder, being in difficulties, sold, or professed to sell, the darpatni to his wife kripomoye and his son dhankristo; and thereupon the names of kripomoye and dhankristo were entered in the plaintiff's sherista as the owners of the darpatni.6. after this sale, the rent of the darpatni being in arrear, the plaintiff (whether in ignorance of the sale, or not, does not appear) brought a suit, for the rent against isur chunder, who defended the suit, upon the express ground that he was no longer the tenant, and that he had parted with his interest in the darpatni to his wife and son:.....
Judgment:

Richard Garth, C.J.

1. The point upon which in our opinion this case should be decided is rather of a peculiar nature.

2. The plaintiff is the zamindar of a share in a property called Lat Sahalampore, and he also claims to be the darpatnidar of a portion of the same property.

3. In his character of darpatnidar he brings this suit against the defendant No. 1, as ijaradar under him of part of the estate, for rent and for road-cess. The defendant resists the claim upon the ground that Paresh Nath, the defendant No. 2, is the real owner of the darpatni; and the defendant No. 2 has intervened for the purpose of supporting his title to the rent as against the plaintiff.

4. It appears that some time ago, in the year 1259 (1852), one Isur Chunder purchased, and was the undoubted owner of, this darpatni estate.

5. In the year 1265 (1858), Isur Chunder, being in difficulties, sold, or professed to sell, the darpatni to his wife Kripomoye and his son Dhankristo; and thereupon the names of Kripomoye and Dhankristo were entered in the plaintiff's sherista as the owners of the darpatni.

6. After this sale, the rent of the darpatni being in arrear, the plaintiff (whether in ignorance of the sale, or not, does not appear) brought a suit, for the rent against Isur Chunder, who defended the suit, upon the express ground that he was no longer the tenant, and that he had parted with his interest in the darpatni to his wife and son: and he not only defended the suit on this ground, but he stated in his evidence, that the sale to his wife and son was an absolute and bona fide one; that the darpatni really belonged to them; and that he had no right or interest in it.

7. Upon the strength of this evidence, Isur Chunder defeated the plaintiff's suit, and the plaintiff had to pay the costs of it.

8. Having failed in that suit, the plaintiff then brought another suit for the same rent against Kripomoye and Dhankristo; he obtained a decree against them, and under that decree the darpatni was sold, and the plaintiff himself became the purchaser of it. Upon the title thus acquired, the plaintiff brings the present suit against the defendant No. 1, the ijaradar of that portion of the property, and assuming that the title derived in this way is a good one, there is no doubt as to his right to recover the rent as against the defendant No. 1. The only question then would be a matter of a few rupees, which the appellant is willing to give up, so as to avoid the necessity of a remand. Consequently, the only point for our consideration is, whether the plaintiff on the one hand, or the intervening defendant on the other, is entitled to the rent of the darpatni.

9. The claim which the intervening defendant sets up is by right of Isur Chunder. He says, that Isur Chunder mortgaged the property to him, and that such proceedings have been taken upon that mortgage, that he is now entitled in Isur Chunder's right to the rent of this property as the owner of it.

10. It has been decided in the Court below, that, notwithstanding all that occurred in the suit, which was brought by the plaintiff against Isur Chunder, and all that has occurred subsequently, the intervening defendant in this suit has a right to go into the question, whether Isur Chunder was the real owner of the darpatni or not, and the lower Court has found upon the evidence that he is the owner of it.

11. But we are quite unable to take that view of the case. It appears to us, that inasmuch as the intervening defendant claims under Isur Chunder, and can take no better title than Isur Chunder himself; and as Isur Chunder has directly induced the plaintiff to believe that he had sold his property absolutely to his wife and son, and led him to bring a suit against them for the rent, and under the decree obtained in that suit to purchase their interest in the property it does not lie in the mouth of Isur Chunder, or any one claiming under him by a subsequent title, to set up a claim to the rent in this suit as against the plaintiff.

12. Our opinion in this respect is founded upon the well-known rule of law laid down by Lord Denman in the case of Pickard v. Sears (6 Ad. & EL, 40), that where a man by his words or conduct wilfully induces another to believe in a certain state of facts, and to act upon that belief, so as to alter his own previous position, the former is estopped as against the latter from averring a different state of facts as existing at the same time.

13. This rule, the justice of which is very obvious, is embodied in the 115th section of the Indian Evidence Act, which provides that where 'one person has by his declaration, act, or omission intentionally caused or permitted another person to believe a thing to be true, and to act upon such belief, neither he nor his representatives shall be allowed in any suit or proceeding between himself and such person or his representatives to deny the truth of that thing.'

14. It would be perfectly monstrous in this case to allow Isur Chunder, or any one claiming under him, to contend, that the plaintiff has no right to the estate which he has purchased upon the faith of representations made by Isur Chunder himself.

15. It was attempted by the pleader for the respondent to show that Paresh Nath, the intervening defendant, claimed by virtue of a title derived from Isur Chunder before the sale by the latter to his wife and son; and that, therefore, he ought not to be bound by the consequences of Isur Chunder's representations.

16. But we find that, as a matter of fact, this was not so. It is true that Isur Chunder had previously mortgaged to Paresh Nath certain property, to secure a debt due from himself, but that was a different property altogether, and it was not until after the plaintiff had sued Isur Chunder, that the latter mortgaged to the defendant this particular darpatni for Rs. 6,000.

17. Another point raised by the respondent, upon which the decision of the Court below appears to have proceeded, is, that the plaintiff himself was in some way or other a party to the fraud (if any) which Isur Chunder attempted to perpetrate, and that he was himself well aware that the sale to Kripomoye and Dhankristo was a benami one, and that Isur Chunder still remained the true owner of the darpatni.

18. We have carefully examined the evidence to see whether there is any ground for this supposition; but we can find none. It would certainly be a most extraordinary thing that the plaintiff, if he really knew that Isur Chunder was the owner of the darpatni, should have allowed Isur Chunder to defeat him in his suit upon a false ground, without attempting to appeal against the decision; and still more extraordinary, that following that up, he should not only have brought a suit against Kripomoye and Dhankristo, but also have purchased their title under the decree. It seems absolutely incredible that if he had known that Kripomoye and Dhankristo had no right to the estate, he would have been guilty of the extreme folly of purchasing their interest.

19. We have not been able to find any evidence, nor has the pleader for the respondent been able to point out any, which would justify the supposition on which the Court below proceeded.

20. As there is, therefore, no question now as to the amount of rent due from the defendant, it is needless to remand the case. The judgment of the Court below must be reversed; and the plaintiff will be entitled to a decree for the rent admitted to be due to him, namely, Rs. 1,014-5-2, with costs in both Courts.


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