BEPIN BEHARI MITTER Vs. TINKOWRI PATHAK

JUDGEMENT

(1.) The subject-matter of the litigation, which has resulted in this appeal, consists of parcels of chakran lands in Mauzah Chandpur, within the Zemindari of the Maharajah of Burdwan. One Karuna Nidhan Singh held the mauzah under a putni lease, granted on the 24th August 1882. In 1898, the chakran lands in dispute were resumed by the Government and transferred to the zemindar under the provisions of the Village Chaukidars Act, 1870. The putnidar, Karuna Nidhan, took possession of the lands, apparently on the assumption that they were included within the putni, and he was consequently entitled to hold them subject to the payment of rent to the zemindar. On the 1st May 1900, the defendants to the present suit were settled on the lands by the putnidar as cultivating ryots, and they have been in possession ever since by payment, of rent to him. On the 15th October 1903, Karuna Nidhan deposited rent in the office of the zemindar on account of the chakran lands, included in mauzah Chandpur, and in the receipt granted to him, he was described as the settlement taker. On the 20th April 1904, Karuna Nidhan transferred his interest in the putni to the plaintiff-respondent, but the conveyance expressly recited that the chaukidari chakran lands of Chandpur, appertaining to the putni taluq, were retained by the vendor, that he had taken settlement in respect thereof from the zemindar, and was in occupation through tenants. On the 12th July 1908, the plaintiff, after his purchase from the putnidar, went to the zemindar and took settlement of the chakran lands. The circumstances, under which this settlement was taken, have not been very clearly made out, but it has been suggested that the plaintiff represented to the zemindar that as purchaser of the putni, he was a suitable person with whom the resumed chakran lands might be settled; at any rate, it does not appear from the evidence that the covenant in the conveyance to which we have referred was brought to the notice of the zemindar; it is also fairly clear that when the settlement was made with the plaintiff, the deposit of rent by Karuna Nidhan on the 15th October 1903 was overlooked. On the 18th April 1907, the plaintiff commenced the present action to eject the defendants on the ground that (hey were trespassers and had acquired no title under the lease, granted to them by Karuna Nidhan on the 1st May 1909. The defendants denied the title of the plaintiff and contended that he had acquired no title under his settlement from the zemindar and that, in any event, they were not liable to be ejected as they were bonafide ryots in actual occupation of the lands. The Courts below have concurrently overruled these objections and made a decree for ejectment and mesne profits against the defendants. The defendants have now appealed to this Court, and on their behalf the decision of the Subordinate Judge has been assailed substantially on four grounds, namely, first, that upon a true construction of the putni lease of the 24th August 1882, it ought to be held that the chaukidari chakrun lands in dispute were included therein, and that it was consequently not competent to the zemindar to settle them with the plaintiff: secondly, that the plaintiff is barred by the doctrine of estoppel from asserting his title in contravention of the covenant in the conveyance; thirdly, that though a formal lease in respect of the chakran lands was not executed by the zemindar in favour of the vendor of the plaintiff, yet the payment and acceptance of rent constituted a tenancy, which could not be ignored by the superior landlord; and fourthly, that the defendants were, in any view of the matter, bonafide ryots, who had corns into occupation long before the title of the plaintiff accrued, and were, consequently, not liable to be ejected.

(2.) In support of the first contention of the appellants, reference has been made to the provisions of the putni lease of 1882. It is clear that certain chakran lands, described as thanadari chakran lands, were excluded from the putni but it has been contended, upon the authority of the decision of the Judicial Committee in Joy Kishen Mookerjee v. Collector of East Burdwan 10 M.I.. A, 16 : 1 W.R. (P.C.) 26, that the lands so excluded were different from the chaukidari chakran lands. It has further been argued that as the putnidar was authorized to appoint chaukidars, the reasonable inference is that the chaukidari chakran lands were not intended to be excluded from the putni, It may be conceded that there is some force in this contention but the materials on the record are not sufficient to enable us to decide the question, whether the chakran lands now in dispute were or were not excluded from the putni. It must be observed that the question, as presented to us, was not specifically raised in the Court of first instance and no evidence was adduced to show the true character of the lands now in controversy. The matter, therefore, is at least doubtful and there is plainly considerable room for dispute between the zemindar and the putnidar upon the question, whether the lands now in dispute were or were not included within the putni lease of 1882. But we are not prepared to hold affirmatively that the lands were so included, and we must consequently overrule the first contention of the appellants.

(3.) In support of the second contention of the appellants, it has been argued that as the respondent accepted the conveyance of the 20th April 1904, with an express recital that the chaukidari chakran lands appertained to the putni taluq and had after resumption by Government been transferred to the zemindar and settled by him with the vendor, who retained possession of them, the purchaser is estopped from denying the truth of this statement. In our opinion, this position cannot be successfully maintained. In the first place, it is well-settled that by accepting a deed of conveyance in fee and going into possession, a grantee is not estopped to deny the title or seisin of his grantor unless he claims under the deed. To put the matter in another way, an estoppel exists only when there is an obligation, express or implied, that the occupant will at some time or in some event surrender the possession as between landlord and tenant or as between vendor and purchaser before conveyance. In support of this view, reference may be made to the decision of this Court in Rupchand Ghosh v. Sarbessur Chandra 33 C. 915 : 3 C.L.J. 629 : 10 C.W.N. 747, where reliance was placed upon the cases of Averill v. Wilson 4 Barb. 180 and Osterhout v. Shoemaker 3 Hill. 513 mentioned by Dr. Bigelow in his classical Treatise on Estoppel (5th Edition page 358). The same doctrine has been affirmed by the Supreme Court of the United States in a series of decisions amongst which reference may be made to Merriman v. Bonner (1870) 9 Wallace 592 : 10 Jur. (n.S) 534 : 10 L.T. 88 : 12 W.R. 461; Grosholz v. Newman 21 Wallace 488; Bybee v. Oregon By. Go. 139 U.S. 663 at p. 682 : 35 Law. Ed. 305. In the second place, it is well-settled that although all parties to a deed are bound by the recitals in it, legitimately appertaining to the subject-matter of it Wiles v. Woodward (1850) 5 Exch. 557 : 82 R.R. 764 : 20 L.J. Ex. 261 and Carver v. Astin 4 Peters. 1 the estoppel is limited by the intention of the parties, and whether one party or the other or both are estopped by a recital depends upon their intent as manifested by the deed Stronghill v. Buck (1830) 14 Q.B. 781 : 19 L.J.Q.B. 209 : 14 Jur. 741; Watson v. Dennis 3 Russ. 90 and Honner v. Morton 3 Russ. 65. 27 R.R. 15. To put the matter in another way, the doctrine of estoppel does not extend to mere descriptive matters or statements or recitals which are immaterial and not contractual or essential to the purposes of the instrument. To give a recital that effect, it must be shown that the object of the parties was to make the matter recited a fixed fact as the basis of their action Limmer v. Inland Rev. Comr. L.R. 7 Exch. 211 : 4l L.J. Ex. 106 : 26 L.T. 633 : 20 W.R. 610 and Doe v. Shelton 3 Ad. & El 265 : 4. N. & M, 857 : 1 H. & W. 287 : 4 L.J.K.B. 167 As Dr., Bigelow puts it (Estoppel, page 459), a fact agreed or assumed to be true as the basis of a contract must be taken to be true specifically until the contract itself is lawfully impeached by plaintiff or by defendant. On this ground, it has been ruled that the description in a deed of lands excepted from the conveyance as having been conveyed to another, does not estop the grantor nor one to whom he shall convey the excepted lands from alleging that no such conveyance as recited had been made. Ambs v. Chicago Ry. Co. 44 Mina 266 : 46 N.W. 321 In the case before us, it is impossible to maintain the position that the recital in question was the basis of the contract between the parties; it was essentially a collateral statement not concerning the direct purpose of the deed; consequently, it does not create an estoppel. Carpenter v. Buller (1841) 8 M. and W, 209 : 10 L.J. Ex. 393, Young v. Raincock (1849) 7 C.B. 310 : 18 L.J.C.P. 193 : 13 Jur. 539. Laws of England Halsbury Vol. XIII, p. 368. The second ground upon which the judgment of the Subordinate Judge is sought to be assailed must consequently be overruled.