M.H. Beg, C.J.
1. This is a Letters Patent appeal against the judgment and decree of a learned Judge of the Delhi High Court (Himachal Bench) by which the learned Judge had allowed the second appeal of the respondents and reversed the concurring decrees of both Courts below. The plaintiff-appellant had brought a suit for a declaration that he is owner in possession of certain land, which had been sold by Smt. Suhago defendant No. 1 to Kidar Nath defendant No. 2, on 14th October, 1958, and for an injunction to prevent interference with the plaintiff's possession. The plaintiff assailed the validity of the sale on the ground that Smt. Suhago the widow of Thakur Dass, had purported to sell her husband's property, which she had forfeited when she remarried in 1930.
2. A number of issues were framed including an issue on the Question whether the suit for a declaration and an injunction to protect possession was maintainable as the defendants were in possession, and therefore, without suing for possession, the plaintiff's suit must fail. Both the Courts below had concurrently found that the plaintiff was in possession.
This finding had not been reversed by the learned single Judge.
3. Another plea in defence was that the plaintiff was estopped from filing the suit by his acts and conduct. Otherwise, the right of the plaintiff to sue as a reversioner seemed to be admitted. The defendant purchaser had also pleaded that the sale in his favour dated 14th October. 1958, was protected as he was bona fide purchaser for value of the land in suit.
4. It cannot be disputed now seriously that Smt. Suhago had forfeited her right to the property of her husband Thakur Dass before the Hindu Succession Act, 1956, as she had remarried after the death of Thakur Dass. However, it was urged by learned counsel for the defendants-respondents that the custom of forfeiture on a widow's remarriage is not proved. But, he cited cases relating to the widow's remarriage with a brother of the deceased husband, and even these cases did not come from Kangra District where this case arose. Therefore, the finding that Smt. Suhago had forfeited her rights in the property of her late husband on her remarriage cannot be disturbed now. In fact, this was the assumption on which the learned single Judge proceeded when he held that, although, there was a forfeiture, yet the plaintiff-appellant had waived his rights and was therefore, estopped from asserting them. The main issue now was whether the plaintiff-appellant was estopped from asserting his rights due to any waiver as held by the learned single Judge.
5. It is rather surprising that we find nothing in the judgment under appeal which could amount to setting aside the concurrent findings of fact given by both the Courts below that the plaintiff-appellant was in actual and exclusive possession of the land in dispute. In fact. Unless this finding was there, the plaintiff's suit would have failed on the ground that the basis on which the plaintiff came to Court, that is to say that he was the owner in possession, was wanting in the case. We find a very categorical finding on plaintiff's exclusive possession, given by the trial Court. The first appellate Court had also held, very explicitly, that the Jamabandi entries, showing joint possession of the plaintiff with Smt. Suhago had no effect inasmuch as the presumption of correctness of these entries had been sufficiently rebutted by other more reliable evidence on record. It then went on to give the finding:--
'That lower Court has rightly held that the plaintiff has been proved to be in exclusive possession of the suit land, and therefore, the suit for declaration is competent.'
It is difficult to see how a person who is in exclusive possession and enjovment of the land he is cultivating could be said to have waived or relinquished his right in it.
6. The learned single Judge had upheld the contention that there was a 'waiver' of the plaintiff's right, because the plaintiff had acquiesced in and consented to entries in favour of Smt. Suhago at mutation proceedings. We, however, find no plea of any waiver in any written statement. No issue was therefore, framed on any such question in this case. An issue was no doubt, framed on the defendants' plea of an estoppel. We find that the questions of waiver and the estoppel were dealt with by the learned Judge as though they were practically the same. The learned single Judge seemed to hold the view that there was an 'estoppel by a waiver'.
7. The facts on which the learned Judge held that there was a waiver, so as to operate as an estoppel against the plaintiff-appellant, were:
(1) After Smt. Suhago's remarriage with Jondu on August 16. 1930. Shiv Ditta plaintiff, and his brother had become entitled to enforce their rights on the ground of forfeiture of the life interest of Smt. Suhago in Thakur Das's estate, but thev took no steps whatsoever to enforce such a right and allowed the name of Smt. Suhago to continue as owner of the land in revenue records.
(2) When Nandu the brother of Shiv Ditta and Thakur Das, died issueless on Januarv 4, 1944. Shiv Ditta allowed a mutation to take place (Exs. D-2 and D-4) of the estate of Nandu on Februarv 13, 1944 and November 18, 1944, in favour of himself and Smt. Suhago as joint owners and on one of these occasions (Ex. D-2) the mutation was actually sanctioned at the instance of Shiv Ditta.
(3) Shiv Ditta plaintiff-appellant also consented to the mutations when the devolution of rights of Sultaio widow of Shyaman and uncle of Thakur Dass had taken place after Sultaio had died issue-less on December 30, 1952, and mutation (Ex. P-3) was sanctioned on 25-10-1953. Here also the mutation was said to have taken place at the instance of Shiv Ditta.
8. The learned Judge had observed that the effect of these consistently given assents of Shiv Ditta at mutation proceedings, was that the name of Smt. Suhago was shown as co-owner of the property of her late husband Thakur Dass. As the plaintiff-appellant had according to the learned Judge, failed to assert his rights of succession as a reversioner when the forfeiture of the life-interest of Smt. Suhago took place, he was held to have been estopped from filing the suit under consideration. To support this view the learned Judge had relied on two cases of the Lahore High Court: Ram Sarup v. Ram Saran AIR 1926 Lah 650; and Arur Singh v. Mt. Santi, AIR 1936 Lah 405.
In Ram Sarup's case a Division Bench of the Lahore High Court had observed as follows:--
'Now, there is no doubt from the evidence that the plaintiffs were present, that they did make no objection to the gift and that they had every opportunity of objecting had they desired to do so. It is also quite clear that they knew what the nature of the proceedings and the mutation entry was. Under these circumstances they are clearly estopped by the well-established Rule of law and equity that a person is not entitled to do what is commonly known as blowing hot and cold. The maxim allergens contraria non estaudiendus is incorporated in Section 115 of the Evidence Act. Upon the finding of the learned District Judge upon the question of consent, with which we are in entire agreement, we are of opinion that the plaintiffs are estopped from now contesting this alienation.'
9. With due respect, we may observe that, in this case, important elements of the principles found in Section 115 of the Evidence Act appear to have been overlooked. There is no doubt that Section 115 incorporates an equitable doctrine which prevents a party from adopting two inconsistent positions. Nevertheless, the basis upon which equity operates against the party which makes a representation is that the party riving on the estoppel has been misled into altering its position to its disadvantage due to the representation. The party to which a representation is made must have been induced to act on the belief that the representation was true. Where all the facts are within the knowledge of both parties there is no question of one party acting on the faith of an incorrect representation. In this case, we do not even know what representation the plaintiff made to Smt. Suhago. Nor do we know under what bona fide but erroneous belief Smt. Suhago acted. She knew better than anyone else that she had been remarried. The evidence relating to what happened at these mutation proceedings and why Shiv Ditta plaintiff-appellant consented to the entry of the name of Smt. Suhago is lacking.
10. It was urged that, in Punjab mutation proceedings often take the place of regular transfers which are evidenced by registered documents elsewhere, so that these proceedings have a special significance in Punjab. We however, do not see how mutation proceedings could have the same evidentiary value as documents of transfer signed by transferors. In these proceedings, we generally find a report from the Patwari which is followed by an order incorporating a declaration by a party. The resulting entries are given a statutory effect by Section 44 of the Punjab Land Revenue Act. In other words, the effect of these mutation proceedings is that entries are made to which a rebut-table presumption of correctness attaches. The mutation order has not the effect of res judicata. Mutation proceedings do not certainly determine questions of right and title. The presumption of correctness of entries can be repelled by direct oral evidence. It was held by the Courts below, in the instant case, that the presumption of correctness of the entries was rebutted by better evidence of the exclusive possession of the appellants. The finding that evidence in the case is sufficient to rebut a statutory presumption is one of fact which this Court will not upset without any error of law shown in arriving at the finding (See Wali Mohd. v. Mohd. Baksh. AIR 1930 PC 91; Faqiria v. Kalu Mal, AIR 1952 Punj 52).
11. Turning now to the distinction between a waiver and an estoppel, we may point out that the Privy Council had held, in Dawsons Bank. Ltd. v. Nippon Menkwa Kabushihi Kaish. AIR 1935 PC 79:
'The question of estoppel is governed by Section 115. Evidence Act, which for the present purpose seems to their Lordships not to differ from the law in England in regard to estoppel in pais. Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action. It is a Rule of evidence which comes into operation if: (a) a statement of the existence of a fact has been made by the defendant or an authorized agent of his to the plaintiff or some one on his behalf; (b) with the intention that the plaintiff should act upon the faith of the statement: and (c) the plaintiff does act upon the faith of the statement. On the other hand, waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right. If an agent, with authority to make such an agreement on behalf of his principal, agrees to waive his principal's rights then (subject to any other question such as consideration) the principal will be bound, but he will be bound bv contract not by estoppel. There is no such thins as estoppel by waiver'.
12. This well-established view has been reiterated by the Supreme Court in Basheshar Nath v. Commr. of Income-tax. Delhi and Rajasthan. AIR 1959 SC 149.
13. We, therefore, think that it is essential to bear in mind the difference between a waiver and an estoppel. In the instant case, only an estoppel was pleaded. But, an essential element of an estoppel was wanting when it was not shown how the defendant Smt. Suhago acted on the strength of a representation so as to be induced by Shiv Ditta appellant to alter her position in any way in fact, if the plaintiff-appellant had continued in possession of the property of Thakar Das, it was not necessary for him to enforce any rights which accrued by the forfeiture of the rights of Smt. Suhago. It is not unusual for entries to be made in favour of a widow to afford some sentimental satisfaction only to her. It was open to Smt. Suhago to have shown how any transfer of rights had taken place in her favour despite the forfeiture of her rights before the Hindu Succession Act. 1956. But we are unable to find anything to show that. It may be observed here that all the mutation proceedings relied upon by the learned single Judge did not relate to the property left by Thakur Das. Only in one of these mutation proceedings was succession to the Property left by Thakur Das involved. In the case before us, we are only concerned with rights in the property left by Thakur Das, deceased.
14. The decision in Arur Singh's case, AIR 1.936 Lah 405 (supra), relied upon by the learned single Judge, also appears to us with great respect, to be open to the same objection as the judgment in Ram Sarup's case, AIR 1926 Lah 650 (1) (supra).
15. What is known as an 'estoppel by record' in English law is substantially covered, under our law, by the doctrine of res judicata, although, as was pointed out by one of us (Beg. C. J.), in Sita v. State. AIR 1969 All 342 at p. 351 (FB), an 'estoppel by record' may sometimes, stand for a wider principle than res judicata. The effect of that principle is as found stated in 'American Jurisprudence' (2nd Ed. Vol. 28, p. 600) and in 'Corpus Juris Secundum' (Vol. 31. p. 193) is a 'preclusion to deny the truth of matters set forth in a record whether Judicial or legislative'. But, that principle is, in this country, sometimes applied by special statutory provisions. In the case before us the statutory provisions only give the effect of entries made in revenue records as a result of mutation proceedings. That effect is confined to raising a rebuttable statutory presumption of their correctness. To so further than that and to uphold an estoppel, evidence has to be led to show what took place, at a mutation proceeding or elsewhere, so as to operate as an estoppel within the scope of Section 115 of the Evidence Act. As already stated, we have not been shown evidence in this case to establish such an estoppel.
16. It may be added here that the elements of the species of estoppel contemplated by Section 41. Transfer of Property Act, which protects a bona fide purchaser for value were also wanting. The plea was set up by the purchaser. Kidar Nath, but neither an issue was framed on it, nor any argument advanced, at any stage, to show how it could succeed.
17. Learned Counsel for the plaintiff-appellant has relied upon Naimat Singh v. Darbari Singh, AIR 1956 Puni 230 where it was held that mere participation in the kind of mutation proceedings relied upon by the defendants-respondents, did not amount either to a relinquishment or to an estoppel. In Badri Narain Singh v. Bageshwari Prasad Dubey. AIR 1951 Pat 274 also it was held that a mere recital in a mutation order did not create any estoppel. In Midnapur Zamindari Co. v. K. C. Singh, AIR 1943 Cal 544 and in Dawood T. Mohd. Bros. v. Queensland Insurance Co., AIR 1949 Cal 390 it was held that mere omission to claim or enforce a right for sometime does not amount to a waiver. With, due respect we concur with the views taken in these authorities, cited by the learned counsel for the plaintiff-appellant, and we prefer them to the views expressed in the two cases relied upon by the learned single Judge.
18. The result is that we allow this appeal and set aside the judgment and decree of the learned Single Judge and restore that of the lower appellate Court. The plaintiff-appellant is entitled to his costs throughout.