1. The plaintiff in this suit sought for declaration of her title to and recovery of possession or confirmation of her possession in a certain tank. She has been successful in the First Court in respect of 8-annas share of the tank and has appealed in respect of the 8 annas share to which her claim has been dismissed by the lower Appellate Court.
2. A genealogical table showing the principal parties in this litigation will be found in Schedule kha of the plaint which is translated and printed at page 11 of the paper-book. The tank in suit originally belonged to Swarup Chandra Roy. A half share descended to Anup Chandra Roy and the other half share to Jahuri and Biswanath. It is now undisputed that the plaintiff has obtained Jahuri and Biswanath's share. We are only concerned with the share which descended to Anup. The plaintiff's case as now made out is that Jahuri and Biswanath executed a mortgage by which they purported to transfer 16-annas share in the tank to one Kristo Chandra Dutt. Kristo Chandra Dutt brought suit on his mortgage and in execution of that decree purchased the mortgaged property and then the plaintiff purchased half of the tank from Kristo Chandra Dutt.
3. It is conceded that in order to establish a title to this half share of the tank the plaintiff must rely on Section 43 of the Transfer of Property Act, that is to say, that though Jahuri and Biswanath had no interest in the tank where (sic) they executed the mortgage in favour of Kristo Chandra Dutt they subsequently as reversioners succeeded to Anup's share en the death of his widow Drabomoyi. This contention that the plaintiff claiming through the mortgagee is entitled to the benefit of this accession of interest to the mortgagors on behalf of the plaintiff must fail on account of the finding of fast arrived at by the lower Appellate Court. Before advantage can be taken of the provisions of Section 43 of the Transfer of Property Act it must be shown that there was an erroneous, representation. Whether there was such representation or not is a question of fast and on this question the finding of the lower Appellate Court is perfectly clear. He finds that there is no case of misrepresentation by Jahuri and Biswanath in the matter '. It is contended that in coming to this conclusion the learned Subordinate Judge has misunderstood paragraph 5 of the plaint. There is no error in what he says with reference to that paragraph and the inference he has drawn from that statement is one which he might ligitimately draw. It is an inference of fact which we must accept in second appeal.
4. There is also another finding which is fatal to the plaintiff's case and that is that before her death Darhomoyi, the widow of Anup, sold her interest with the consent of the reversioners. That being so there was nothing to go to Jahuri and Biswanath as reversioners to feed the estoppel if we had held that Section 43 was applicable to the facts of the case.
5. Taking this view of the case the appeal fails and is dismissed with costs to defendants Nos. 1 to 8 and 9 and 10. We allow one set of costs to these defendants.