MUHAMMAD MUSA Vs. QASIM HUSAIN

JUDGEMENT

(1.) This second appeal arises out of a suit for possession over certain property. It apears that the appellant executed a deed of sale on 9 January 1920, in favour of the defendants-respondents. It has been found as a fact by the learned Judge of the lower appellate Court that that, deed of sale was intended to transfer and did transfer only certain property. It so happened that the vendor also mentioned in the deed of sale that he was the owner of certain other property and it is in respect of that other property that the suit which has given rise to this appeal was instituted. The vendees applied for mutation of the register not only about the property which is found to have been sold but also about this other disputed property which is the subject of the present appeal. Thereafter the appellant instituted the suit in order to recover-possession over this property. One of the defences was that the property in dispute had been included in the deed of sale and had been transferred by it. This defence was negatived by the lower appellate Court and the appeal before me has been argued on the assumption that this finding was right.

(2.) Another defence was that the appellant was estopped from alleging that the disputed property had not been sold. It appears that a sum of Rs. 90, part of the consideration, for the sale was not paid at the time when the sale, took place. It was subsequently paid on 17 February 1921, and at that time the appellant executed what he describes as a receipt, and what the other side claimed to be an agreement. In this document be admitted that the disputed property was sold by the deed of 9 January 1920. There was also an application made by the vendees, i.e., the respondents, for the partition of the property which they had purchased and when the question of their ownership arose in the partition proceedings the appellant did not raise any objection. It is argued that the appellant's admission in his receipt or agreement of 17 February 1921, and his failure to contest the claim of the respondents in the mutation proceedings when they obtained mutation without any protest on his part and in the partition proceedings, all amount to estoppels by way of acquiescence. Reliance has been placed on, Ram Sarup V/s. Ram Sarn 1926 Lah. 650. That case was decided by the Lahore High Court and the decision depended in some measure upon the customary law of alienation of ancestral land in that province. The decision was based, it appears, on the provisions of Section 115, Evidence Act, i.e., the Court apparently intended to hold that there was an estoppel by judgment. The decision is no authority for the proposition which has been acted upon by the lower appellate Court in the present case. It has not been suggested that the decision in the mutation case could operate as res judicata. It is obvious that the decision could have no such effect. What the learned Judge of the lower appellate Court has held is that there has been an estoppel by representation. For such an estoppel to come into operation there must be a deception which has led the person claiming the estoppel to entertain a false belief about a question of fact and which has also led him on the faith on that belief to change his legal position. In the present case the parties were also parties to the deed of sale. It has been held as a fact which is not now contested that the deed of sale was evidence of a transaction by which the parties intended to transfer certain other property but not the property in suit. As the respondent was a party to that transaction, it is difficult to see how he could have been deceived about its true nature by the subsequent conduct of the other party. In the first place it cannot be said that he was deceived and in the second place it is not even alleged that he in any way changed his legal position at any time acting on the belief that he was the owner of the property. In these circumstances no estoppel can come into operation against the appellant.

(3.) A further argument has been raised that the partition proceedings prevent the Civil Courts from taking any action in this matter under the provisions of Section 233-K Land Revenue Act. The learned Judge of the lower appellate Court has however pointed out that although an application for partition was made, the proceedings were afterwards quashed and no partition took place. The provisions of Section 233-K Land Revenue Act can therefore not come operation. As it has been held that the property was not transferred by the deed of sale and as I consider that no estoppel and that the suit is not barred by Section 233-K Land Revenue Act, the plaintiff is entitled to a decree for possession. A decree will, be prepared in terms of the relief claimed and the respondents will pay the appellant's costs in all Courts.