1. The plaintiff sues for declaration of title to a 9-cotta plot of land and for ejectment. He bases his claim upon a registered kobala executed by one Ramani Dasi, dated the 22nd Jaistha 1292, by which, she sold the southern half portion of a plot of land measuring in all 18 cottas. He complains that the defendants have, under colour of a patta (Exhibit B) alleged to have been granted to their maternal grandmother, Bilas Moyee Dassee, by certain persons hereinafter referred to as the Jugi brothers, dated the 27th Magh 1272, taken possession of a portion of the plot in suit and created structures thereon. The Jugi brothers were tenants under one Beswesar Banerjee. They were in possession of 3 bighas 14 cottas. Their landlord brought a suit in 1866 for enhancement of rent against them and obtained a decree. The landlord asserted that the Jugis held the land without lease and without giving a kabuliyat. The suit was decreed and eventually two of the brothers, namely, Iswar Chandra and Dino Nath 'gave up their tenancy.' The remaining two brothers Srimanta and Dukhiram then obtained a Settlement in mokurari mourasi of 18 cottas, half of which has now passed on to the plaintiff. It appears that the four Jugi brothers by a deed, dated 27th Magh 1272, purported to create a mokurari jama of 4 cottas out of the plot of about 4 bighas in their possession in favour of Bilas Moyee. The plaintiff's case in the plaint was that these 4 cottas had nothing to do with his 9 cottas and were outside the area. He placed the 4-cotta plot between the southern boundary of his plot of 9 cottas and north of a tank known as the Hansa Tank. The defendants' case is that their 4 cottas cover the disputed land.
2. In the first Court the following issues were raised relating to this matter:
5th. Has the plaintiff his alleged right, title and interest in the land in suit?
6th. Does the land mentioned in the patta cover the disputed land
3. The learned Munsif held that the plaintiff had established his right to 9 cottas. He held further that the disputed land was not covered by Bilas Moyee's patta relied upon by the defendants. The defendants appealed. The only points submitted before the first Appellate Court were (1) that the plaintiff's title had not been proved, (2) that the lower Court should have found that the disputed land was included in the patta. The learned Subordinate Judge agreed with the first Court in holding that the plaintiff had established his title, but he held that the learned Munsif was wrong in finding that the north bank of the tank was included in the patta. He found that the land lying south of a straight line drawn from the southern corner of Nritya Lal Ghose's land shown in the amin's map, right up to the side of the drain which is to the east of Bantra Road, was the northern limit of the defendants' land covered by the patta, and in that view he directed that the plaintiff was to get khas possession of the land lying north of that straight line by demolition of the structures erected by the defendants, but that the plaintiff was not to get khas possession of the land which lies to the south of that straight line, as being covered by patta Exhibit B. It will be seen that the above findings dispose of the issues raised in the case. It appears, however, that the learned Vakil for the plaintiff-respondent in the first Appellate Court, during his argument, contended that the Jugi brothers had no right to grant a mourasi mokurari patta to Bilas Moyee, as they had merely a ticca right, and, therefore, the defendants had not derived any title to the 4 cottas. This was not one, of the issues raised, but the learned Subordinate Judge dealt with this argument and held that when Srimanta and Dukhiram eventually secured a mourasi mokurari right to 18 cottas, and inasmuch as the plaintiff derived his title from them, the plaintiff was estopped under Section 115 of the Evidence Act from denying Bilas Moyee's patta who also derived her title from Srimanta and Dukhiram and their brothers, and that Section 43 of the Transfer of Property Act was also in favour of the defendants. He held that although these Acts had come into force after the patta, the equitable principles embodied in the above sections were applicable. In this Court the main argument has been based upon this portion of the judgment. It is strenuously contended that the learned Subordinate Judge has erred in dealing with the question in this manner.
4. The argument has proceeded under these heads: (1) That the Jugi brothers did not possess a mokurari right in 1272 and were not competent to create an under-tenure. Therefore, Bilas Moyee acquired nothing under her patta Exhibit B.. dated 27th Magh 1272.
(2) That the principle of estoppel has no application in a case where there is originally no title at all, but only in cases where there is an enlargement of an existing interest.
(3) That after the landlords' suit for enhancement of rent, the Jugi brothers took a fresh settlement of 18 cottas from the zemindars. It was a fresh transaction not affected by any estoppel, but even if there were any estoppel, they could only be called upon to discharge their liability to the extent of one half of the 4 cottas purported to have been granted by the four brothers jointly and inasmuch as the defendants had already two cottas outside the land in dispute, they were not entitled to claim anything more from the land in dispute.
(4) That the plaintiff, being in the position of a bona fide purchaser for value without notice of any such claim, is not bound to recognise it.
5. No issue as to the plaintiff being in the position of a bona fide purchaser without notice was raised in the two Courts, and it is too late now to raise it. The plaintiff chose to rest his case in both Courts on the issues above mentioned, and the findings of the first Appellate Court dispose of them. That Court, however, has entered into a discussion of some of the above points placed before him during argument and we shall, therefore, deal with them.
6. It is clear that the Jugi brothers had no mokurari mourasi tenure from the zemindar at the time they granted a mokurari patta to Bilas Moyee. It is also clear that they made a false representation when they brought the grantee on the land which was then in their possession. Two of them then gave up possession and the remaining two took a fresh settlement of 18 cottas in mokurari mourasi. Apparently the defendants and their predecessors remained on the land throughout and the simple question is, can the plaintiff now eject them on the ground that at the time of Bilas Moyee's patta, the grantors had no title, the plaintiff having derived his title from two of them? If these two were estopped, the plaintiff also is. Could those two be called upon to make good their representation when they actually acquired the right to grant a sub-mokurari? We do not think there is any doubt that they could be so called upon. It is contended that the principle of 'feeding the estoppel' is not applicable to Hindu conveyances, at least to cases before the Evidence Act and Dooli Chand v. Birj Bhookun Lal Awasti 10 C.L.R. 61 : 6 C.L.R. 528 is cited in support of, this proposition. That case turned upon the effect of a petition in which the petitioner disclaimed all interest in an estate in which she had at that time only an expectant right, but to which she became afterwards entitled absolutely. It was contended that it raised an estoppel, and that the petitioner must be taken to have abandoned her right to the property. Their Lordships found that there was no reason to suppose that by the petition the petitioner in any degree contemplated a conveyance of her rights. There was no consideration for the conveyance suggested. There was no misrepresentation by her to the defendant, who had raised the question of estoppel, who was himself aware of the real facts of the case. The passage in the judgment in Dooli Chand v. Birj Bhookun Lal Awasti 10 C.L.R. 61 : 6 C.L.R. 528 that the principle of English Law which allows a subsequently acquired interest to feed, as it is said, the estoppel, does not apply to Hindu conveyances, appears to be merely an observation in answer to an argument based upon the case which was cited in the course of argument, namely Musammat Oodey Koowur v. Musammat Ladoo 13 M.I.A. 585 : 15 W.R. 16 (P.C.) : 6 B.L.R. 283 : 2 Suth. P.C.J. 888 : 20 E.R. 669 : 2 Sar. P.C.J. 628. See Ram Nirunjun Singh v. Prayag Singh 8 C.138 at p. 144 : 10 C.L.R. 66. It seems to be an obiter and the exact significance of the expression Hindu conveyance' is not also clear There is, however, ample authority to be found in Indian cases respecting leases for the following proposition, that when a grantor by a recital is shown to have stated that he is seized of a specific estate, and the Court finds that the parties proceeded upon the assumption that such an estate was to pass, an estate by estoppel is created between the parties and those claiming under them in respect of any after-acquired interest of the grantor, the newly acquired title being said 'to feed the estoppel.' See Kurn Chowbey v. Jankee Proshad (8);. Kazee Abdool Mannah v. Buroda Kant Banerjee (7) both of them before the Evidence Act and the Transfer of Property Act. What the learned Judge meant to hold was that the above principle applied to the present case, and we agree with that view.
7. The learned Vakil's second contention before us does not appear to us to be sound. See amongst others Doe d. Prior v. Ongley 10 C.B. 25 : 20 L.J.C.P. 26 : 138 E.R. 11 : 84 R.R. 436; Darlington v. Pritchard 4 M. & G. 783 : 2 D. (N.S.) 664 : 5 Scott (N.S.) 610 : 12 L.J.C.P. 34 : 7 Jur. 677 : 134 E.R. 322 : 61 R.R. 652; Green v. James 6 M. & W. 656 : 10 L.J. Ex. 73 : 151 E.R. 575; Goodtitle d. Faulkner v. Morse 3 T.R. 365 : 1 R.R. 719 : 100 E.R. 623 and Sturgeon v. Wingfield 15 M. & W. 224 : 15 L.J. Ex. 212 : 153 E.R. 831. The two Jugi brothers were parties to the false representation originally made and they could be called upon to make good such representation to the extent of their capacity. They could not be heard to say that although they had ample land out of which the entire 4 cottas could be treated as having been granted in mokurari, each of them could only be called upon to contribute 1 cotta each. We do not think that contention is sound.
8. The first Court held that the defendants had failed to prove adverse possession and the Appellate Court was of opinion that the defendants' possession was to be held as following the plaintiff's title, and that the plaintiff's claim to khas possession was barred by 12 years' limitation.
9. We accept the findings of the Appellate Court and the principles of law held applicable by it. Hiramoti Dassya v. Annoda Prosad Ghosh 7 C.L.J. 553 at p. 555 is relied upon for the proposition that as the plaintiff has proved his title as owner, it is for the defendant to prove his title to remain as a tenure-holder. We think the defendants have established that the plaintiff is not entitled to khas possession of the piece of land to the south of the line drawn by the Judge. The appeal will, therefore, be dismissed with costs.