GOPAL BHAURAO JAPE Vs. JAGANNATH PANDIT VASUDEORAO PANDIT MAHARAJ

JUDGEMENT

(1.) THE appellant brought a suit for an injunction restraining defendant No.1 from interfering in any way with his possession and enjoyment of certain lands which, he alleged, were leased to him by a registered lease dated July 8, 1922, for a period of twenty-five years at a certain rental, and in the alternative for possession of the lands. THE question in the suit related to the validity of this lease, the defendant contending that it was obtained from him by undue influence and misrepresentation. Although the plaintiff originally alleged that he was in possession, it is clear on the record that he admitted later on that at the date of the suit and for some time previous to it the defendant had been in possession of the lands in question.

(2.) BOTH the Courts found that the lease was obtained by undue influence and misrepresentation. Hence this appeal.

(3.) AS regards the first contention that the defendant was precluded from avoiding the document, as he had not taken proceedings to have it set aside, it is clear from the record that no such contention was ever raised in either Court. There is no issue with regard to it. The contention seems to me to be of the nature of an estoppel, and the determination of it must depend upon evidence. Mr. Desai points out that the plaintiff had alleged in the plaint that the defendant should be referred to an independent suit or should have filed an independent suit, and later in 1929 he put in an application. He stated therein that if defendant No.1 does not admit the rent-note, he must file a separate suit for getting it set aside and to recover possession, I am unable to construe these two statements as raising the question of estoppel. Apart from that, it is clear that the plaintiff asked that only one issue should be raised and never suggested another issue on this ground. The issue which he suggested was whether the plaintiff is not entitled to be restored to possession. Mr. Desai further supports his argument by reference to the finding of the trial Court on issues Nos. 3 and 4, but it appears from what the learned Judge says that it was in the course of the arguments that the plaintiff argued that exhibit 72 is a valid document till it is set aside, and hence the defendants are bound to hand over possession. These issues have nothing to do with the question now raised. Issue No.3 raises the question whether the plaintiff is entitled to the injunction sought, and issue No.4, whether he is entitled to possession sought. I cannot, therefore, allow Mr. Desai to raise the question in second appeal.