KANHAYALAL PYARELAL Vs. BHAIYALAL KISHORELAL

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. One Durgaprasad, who died forty years ago, left two sons: (1) Raghoprasad and (2) Hazarilal and a daughter Mulabai. Mulabai having lost her husband at a very early age came to reside with her father and brothers. After the death of Durgaprasad Hazarilal sold his undivided half-share in the house to one Mulchand who filed a regular suit for partition and obtained a decree getting a half-share in the house to the north-west. The other portion of the house, inclusive of the extreme southern portion, which is now in dispute, fell to the share of Raghoprasad in the partition suit (Civil Suit No 331 of 1914). Excepting the southernmost portion, which is called (ghar), Raghoprasad's legal representatives sold the portion of the house allotted to him at the partition to the plaintiff on 9th June 1917: Ex. P-16. They again sold the southernmost portion, which was reserved under Ex. P-16, to the plaintiff on 1st March 1929 under Ex. P-3. The suit out of which this appeal arises was filed by the plaintiff in the trial Court on 7th November 1929 for possession of the portion sold to him under Ex. P-3.

(2.) THE defendants to the suit were (1) Kanhaiyalal Hazarilal, (2) Mt. Mulabai, the daughter of Durgaprasad, and (3) Kanhaiyalal Pairelal. Defendants 1 and 3 claimed the house in suit under defendant 2. The suit was resisted on the ground that by virtue of an oral will made by Durgaprasad bequeathing the house in dispute to Mulabai she had become owner thereof and in the alternative that she had acquired a title to it by adverse possession for more than 12 years before suit. The trial Court having held the oral will proved dismissed the plaintiff's suit. On appeal by the plaintiff the learned District Judge disagreed with the finding of the trial Court regarding the alleged oral will of Durgaprasad in favour of Mulabai and on a very careful review of the evidence on record held that Mulabai's original occupation of the house which commenced by leave and license of her father and brothers never became hostile to the true owners. The appeal was consequently allowed and the plaintiff's claim decreed with costs. Defendant 3 alone has filed the present second appeal making the other two defendants and the plaintiff respondents. Mulabai having died during the pendency of the appeal her name has been struck off the record as she left no legal representative.

(3.) NO evidence was however pointed out to me, which was ignored by the lower appellate Court, to establish that prior to 12 years of the filing of the present suit Mulabai at any time asserted a hostile title to the true owners in respect lot the house in dispute. It follows then that the plaintiff's acknowledgment of the title within 12 years of the filing of the present suit does not debar him from proving that that admission of his was wrong. It was sought to be argued that that admission works an estoppel against the plaintiff and precludes him from challenging Mulabai's title. But to sustain the plea of estoppel, which is not a pure question of law but a mixed one of fact and law, there should have been distinct pleadings by the defendants stating the facts on which an estoppel could be founded. No such pleadings are however on the record and the contention on the point of estoppel cannot therefore be gone into at this stage of the case. Practically the whole of the evidence bearing on the question of Mulabai's possession was reviewed before me by the learned counsel on both sides and I have no hesitation in coming to the conclusion that it was rightly appreciated by the learned District Judge and that his finding that Mulabai's original occupation was permissive and that she did not acquire a title to the house in dispute by adverse possession is not only reasonable but correct.