MT SAMPAT KUER Vs. RAMLAL KAHAR

JUDGEMENT

(1.) This appeal arises out of an action in which the plaintiffs claimed survey plots Nos. 31 and 304. Their claim as regards plot No. 31 was disallowed on the ground that it was the subject matter of a sale deed by defendant 3, the father of plaintiffs 4 and 5, and therefore had passed to the defendant-appellants 1 and 2. The plaintiffs however succeeded as regards plot No. 304, and it appears to have been the contention of the defendants in the Courts below that they were not entitled to succeed so far as that khata was concerned, because in the sale deed by defendant 3 there was a recital to the effect that they had no more jagir land. Now, plot No. 304 is admittedly jagir and it is therefore contended that the admission was conclusive against the plaintiffs and that plot No. 304 passed also with khata No. 31 in the sale deed.

(2.) The Judge has come to the conclusion that this is nothing more than an admission and that the admission was proved to be incorrect by the Record of Rights. Now, had the matter rested there, nothing more could have been said. But in this Court in order to get over the finding of fact of the lower Appellate Court it has been contended on behalf of defendant-appellants 1 and 2 that the recital or admission as it was called in the Court below amounted to an estoppel. If by the representation or statement or recital, whatever it might be called, a title had passed to the defendants in plot No. 304, it undoubtedly would have been an estoppel which the plaintiffs would not have been allowed to repudiate. But it is not suggested that the representation such as it may be called was in any sense a transfer; it was a mere statement of fact. I pointed out during the course of the argument that there was very little to be said in this case which would entitle the parties to bring the matter within the meaning of Section 115, in other words there was nothing to show that defendants 1 and 2 or their predecessors- in.interest had in any way changed their position by this so-called representation of the executant of the deed. And unless that can be shown, it is quite impossible to hold that it was an estoppel. In my judgment the learned Judge in the Court below was right in treating this as an admission which was rebuttable.

(3.) The other question appears to be answered by the finding of the Court below that the ijara had in fact been redeemed. In my judgment there is no error of law in the decision of the learned Judge in the Court below, and therefore the appeal fails and must be dismissed with costs.