(1.) Before 1939 Diwan Singh had mortgaged the land' in dispute with possession with Anokh Singh and others. In February 1939 Diwan Singh created the plaintiffs permanent lessees of the land giving them the right to redeem the land from the mortgagees. In exercise of this right to redeem, the plaintiffs made an application on 15-4-1941 to the Revenue Officer for redemption from Anokh Singh and others. While this application was pending Diwan Singh sold the land on 9-2-1942 to Baghel Singh and others the present defendantsappellants. The application Ex. D 4 appears tb be an amended application put in on 9-4-1942 making the vendees-defendants-appellants parties because of this sale. The Revenue Officer dismissed the application on the finding that the land had been redeemed by the vendees-defendants-appellants. Thereupon a suit was brought by the plaintiffs on 1-8-1942, in which the vendees-defendantsappellants were made parties because of the sale in February 1942 in their favour. Exhibit D 5 is the plaint in that suit. It was prayed therein that even if it be proved that the vendees-defendants-appellants had redeemed the land, the plaintiffs had a right to possession on account of there being a permanent lease in their favour from Diwan Singh. While this suit was pending the plaintiffs brought the present suit against the vendees-defendants-appellants on 8-2- 1943 for preemption of the land in dispute. Amongst other issues the following issue was framed by the trial Court and it is only with this issue that the District Judge and Falshaw J. were concerned and it is this issue which we have to deal with now in this Letters Patent Appeal. The issue is : "Are the plaintiffs by their conduct contained in the statement of the vendees' counsel estopped from bringing the suit?"
(2.) The trial Court observed that the plea of estoppel was based on two contentions. The first contention was that the plaintiffs were estopped on account of their watching without objection the construction of 'kothas' and the planting of trees. The Court found that the present suit had been filed before these acts were said to have been committed. The second contention was that the plaintiffs were estopped because in their application for redemption of the land they had made the venders-defendants parties and that in their prior suit they had based their right of possession of the land on account of the lease, and had not reserved their right of pre-emption. Regarding these the trial Court remarked that the rights of the plaintiffs under the lease were not inconsistent with their right of pre-emption and that it was not necessary to reserve those rights in the prior suit. The trial Court on these findings held that there was no estoppel by conduct. On appeal the finding of the trial Court regarding the first contention does not appear to nave been challenged before the District Judge. The District Judge held that on account of the previous litigation and on that account only the present plaintiffs had accepted the validity of the sale in favour of the vendses-defendants. Falshaw J. reversed the District Judge's judgment. In Letters Patent Appeal it is urged that Falshaw J. was wrong.
(3.) In all cases of estoppel there must be a declaration or an act or omission by the person against whom the estoppel is pleaded which is unambiguous and unequivocal. Because of that declaration, act or omission the party pleading the estoppel must not only have been caused or permitted to believe a thing to be true by the other side but it also must have acted upon such belief in such a detrimental manner that it would be against equity and good conscience to allow the person against whom the estoppel is pleaded to deny the truth of the thing which he had caused or permitted to be believed. The plaintiffs in their application for redemption or in the plaint of their subsequent suit had merely put down a fact which had happened viz., the sale in the vendees-defendants' favour and had therefore made them parties in those proceedings but they had never mentioned, not to say given up their right of pre-emption. In my opinion, it cannot be deduced from their conduct that they ever permitted or caused the defendants to believe that they (the plaintiffs) had given up or waived their right of pre-emption. They were concerned in their application under the Redemption of Mortgages Act before the Revenue Officer with merely asserting their right of redeeming the land from the mortgage. This is not inconsistent with their asserting their right of pre-emption later. In their subsequent suit they were concerned with their right of remaining in possession of the land because of a title in them, viz.. that of permanent lessees, without caring who the owner was. This again, in my opinion, is not inconsistent with their asserting their right of pre-emption and with the Courts having to find out whether they were entitled to pre-empt the land. The earlier suit was based on a different set of facts giving rise to a different title in the plaintiffs in both these proceedings or because of these proceedings it appears to me that it cannot be urged that the vendees-defendants acted in any manner to their detriment unless this further detrimental act on the part of the defendants is proved to be caused by a belief said to be engendered in them by the plaintiffs' conduct, all the ingredients of the plea of estoppel are not made out.