SIDDE GOWDA Vs. NADAKALA SIDDA NAIKA

JUDGEMENT

(1.) The original suit out of which this appeal arises was filed in a representative capacity, for a declaration that the plaint schedule property belongs to the people of the village of Marase and that the alienation by the defendants does not bind the plaintiffs and for possession of the same together with mesne profits. The Munsiff dismissed the suit while the Subordinate Judge allowed the appeal and decreed the suit. The 5th defendant who is now in possession of the property and who is the third alienee has preferred this appeal against that judgment.

(2.) The evidence adduced in the case is conclusive that the property belongs to the villagers of Marase and the same was purchased originally by defendant 1 for and on behalf of the villagers. The documents produced in the case especially the khirdi extract (Ex.- C) and the khatha extracts (Exs. D and E) clearly show that the khatha stands in the name of defendant 1 for and on behalf of the villagers while the admission of defendant 1 himself in Ex, A which is the hypothecation deed executed by him in favour of P. W. 1 to the effect that the schedule property belongs to the villagers, leaves no doubt in the matter.

(3.) The main dispute in the suit centres round the point whether the alienation by defendant 1 in favour of defendant 2 or the alienations subsequently effected were acquiesced in by the people of Marase village. The oral and documentary evidence that has been adduced in the case does not justify any such conclusion of acquiescence; for one thing, the sale deed Ex. II executed by defendant 1 in favour of defendant 2 is attested only by few of the villagers who cannot be said to represent the whole body of the villagers. Besides, the village, panchayath which is admitted to be in existence in that village and which may be taken as representing the majority of the people of the village, has neither been consulted nor has joined in the execution of the document. The view therefore that the alienation by defendant 1 in favour of defendant 2 was acquiesced in by the people of the village cannot be countenanced. Mr. V. Krishnamurthy, the learned Counsel for the appellant has strenuously argued that defendant 2 was in possession of the schedule property for a period of 4 or 5 years after the sale in his favour, that the villagers did not protest and that this conduct on their part goes to show that there was a clear acquiescence on their part and operates by way of estoppel against them. In support of his contention he relied on 'Ramsden v. Dyson', (1866) 1 H.L. 129 and 'Willmott v. Barber'. (1880) 15 Ch. D. 96. In the latter case Fry J. points out that five conditions should be fulfilled before the doctrine of estoppel can apply. When A stands by while his right is being infringed by B the following circumstances must exist in order that the estoppel may be raised against A.