ARJUN LAL GUPTA Vs. MRIGANKA MOHAN SUR

JUDGEMENT

(1.) This is defendants' appeal after certification under Article 133 (1) (a) of the Constitution.

(2.) The plaintiffs-respondents had brought a suit for recovery of possession after declaration of his title to a plot of land, 50 bighas in area, including one bigha area occupied by the defendants-appellants, who claimed sub-tenancy rights and also set up the pleas of waiver and estoppel to prevent their eviction. The trial Court had decreed the suit after repelling the plea of limitation, set up inconsistently with a plea of tenancy right by Bajrang Bali Engineering Company, defendant No. 1, which even alleged to be agents of the plaintiff for letting out lands to others. It also rejected the pleas of waiver and estoppel. It appears that the defendant No. 1, taking advantage of the fact that the plaintiff lived at considerable distance from the land in dispute, had started dumping scrap iron on the land. The plaintiff, immediately after becoming aware of this fact, gave notice in writing to defendant No. 1 on 24-3-50 to remove these materials. On the failure of defendant No. 1 to comply, suits for damages were brought for illegal occupation from 24-3-50 to 21-5-1951 and then 1-9-1952 to 8-5-1953. The plaintiff had reserved his rights to sue for eviction later. Compromise decrees had been passed in those suits. Defendant No. 1 had agreed to pay for use and occupation. But, the terms of the compromise decrees had not been carried out by defendant No. 1. In the case before us, Bajrang Bali Engineering Company, defendant No. 1, did not appeal against the decree for possession by removal of the structures put up by the defendants and for mesne profits at the rate of Rupees 175/- per day with effect from 25-2-55 and award of Rupees 2,000/ for the Court fee paid by the plaintiff.

(3.) The High Court had also repelled the pleas of the defendants, who mainly relied on waiver and estoppel, but, it modified the decree for mesne profits by awarding only Rs. 3.50 n. p. per day so as to bring the amount awarded to approximately Rs. 100/- per month. Against this decree, the defendants 2 to 5 have come up in appeal to this Court and confined their arguments to the pleas of waiver and estoppel and the bar of Order 2, Rule 2. Civil P. C.