RAMKRISHNA MARTOBA KASBEKAR Vs. ANUSUYABAI NARAYAN SHIRALI

JUDGEMENT

(1.) These are four suits brought by one Ram-krishna Martoba Kasbekar to recover possession of various lauds described in the various plaints. He claimed title through one Narhari Vinayak Dandekar, whom we shall call in future Dandekar , and the simple point in all these cases is whether Dandekar had any title which he could pass on to the plaintiff's predecessors. A.11 the plaintiff's suits were dismissed in the trial Court, It appears that they were tried together, and the evidence in connection with all the suits was recorded in Suit No, 166 of 1917. We do not think that was a satisfactory course for the Subordinate Judge to take But apparently no objection was raised by the parties in the various suits, and as a matter of fact there was the one issue referred to above which was common to all the four suits, and if that was decided in favour of the defendants, all the suits were bound to fail.

(2.) In appeal the learned District Judge has with commendable diligence disentangled from the one judgment of the Sub-ordinate Judge the various transactions relating to each of the properties, the subject matter of the four suits, and he came to the conclusion that the plaintiff had no case. He said in Suit No. 166 of 1917 (Appeal No. 69 of 1919): "The plaintiff derives what title he has from another Narhari, not Padmakar, but Dandekar. This man took a mortgage in 1900 which in 1907 the parties made believe to convert into a sale. The question is whether the sale is effective. We find that it is not. This is the finding of the Subordinate Judge. It was also the finding of the Record of Rights Officer. And it has been admitted to be a true finding by Narhari himself." The learned Judge proceeded to show very conclusively that the plaintiff must have known that he was buying property to which his vendor had no title. In that case it is obvious that a Second Appeal would be of little use, unless the appellant could raise some new point which had not been raised in the Courts below, and accordingly the appellant has now sought to succeed on the ground that the defendants were estopped from denying the plaintiff's title to the land.

(3.) The appellant seeks to establish this estoppel in a very curious way, and he seems to have forgotten that in order to establish a claim to estoppel, he ought to have proved certain Facts in the course of the trial which he has not proved. If Shiva and his relations who claim to have sold the property to Dandekar, when they had no title to the property, had recovered the property and got it into their hands, then they could not claim to set aside the sale which they had effected in favour of Dandekar. That is the rule under Section 115 of the Indian Evidence Act.