SWARAN KUMAR JAIN Vs. DEV DUTT MAHAJAN

JUDGEMENT

(1.) The Civil First Appeal is directed against the judgment and decree of the learned District Judge, Jammu dated 29-9-1987, whereby the Civil Original Suit No. 64/1981 with regard to possession of a plot of land bearing No. 270 situate in Shashtri Nagar, Jammu preferred by the appellant (hereinafter referred to as 'the plaintiff') was dismissed. By this suit the plaintiff sought to recover possession of the aforesaid plot of land from the respondents (hereinafter referred to as 'the defendants') upon an allegation that he happens to be the owner of the said plot of land which has been illegally occupied by the defendants by encroachment and enclosing it by a boundary wall.

(2.) In defence it was pleaded that the plaintiff approached the defendant No. 1 Dev Dutt Mahajan many a time for the sale of aforesaid plot of land but he was not prepared to purchase it. Ultimately, the plaintiff executed a Deed of Agreement to sell the said plot of land in favour of the defendant No. 2 Leela Ran wife of the defendant No. 1 and received the entire amount of consideration on different occasions from her and delivered the possession of the land in question to the defendants. The defendants raised the construction upon the suit land to the knowledge of the plaintiff anal also opened window and doors of their residential house over the suit land and they were rot objected to by the plaintiff. According to the defendants this conduct of the plaintiff has estopped him from disputing the ownership of the defendants over the said plot of land.

(3.) The action was tried in the court of learned District Judge, Jammu, who found in favour of the defendants while laying reliance on AIR 1978 J and K 88 in the case of Ghulam Hassan v. Ghulam Qadir, that the principle of estoppel would apply as the vendor (plaintiff) could not be allowed to rake advantage of his own fraud so as to recover possession from the prospective vendee (defendants). He has found in favour of the defendants that the full consideration was paid by them to the plaintiff and, therefore, dismissed the suit of the plaintiff.