GIRISH CHANDRA BIT Vs. BIPIN BEHARI KHAN

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of possession of land on declaration of title. The disputed land is claimed by the plaintiffs as situated within their village Bhuluk Khulla and by the Khan defendants as comprised within their village Sriramanipur. The Courts below have found that the title of the plaintiffs has been established, and the only question in controversy is whether the plaintiffs are entitled to a decree for recovery of possession.

(2.) There are two sets of defendants, the Khans and the Sheikhs. There was a previous suit between the plaintiffs and the Khans, which was instituted on the 13th September 1906 and terminated on the 29th April 1912. The plaintiffs in that suit claimed possession of the land now in dispute. The suit was dismissed by the Court of first instance, but, on appeal, was decreed by the Subordinate Judge. On second appeal to this Court Mr. Justice Coxe remanded the case to the Subordinate Judge for trial of two issues. The defendants at the time urged before Mr. Justice Coxe that even if the title of the plaintiffs was established and was found not to have been extinguished by limitation, they were not entitled to actual possession, inasmuch as a lease granted by them to the Sheikhs was still in force. Mr. Justice Coxe gave effect to this contention and ruled upon the authority of the decision in Gulzar Singh v. Kalyah Chand 15 A.399 : A.W.N. (1893) 170 : 7 Ind. Dec. (N.S.) 975 that the plaintiffs could obtain not actual possession but only declaration of their title. When the case went back to the Subordinate Judge, the plaintiffs offered to give evidence to show-that the Sheikhs had relinquished their tenancy and that they themselves were consequently entitled to recover actual possession on establishment of their title. The Subordinate Judge held that the judgment of the High Court on the point was conclusive and that it was not competent to him to hold that the lease in favour of the Sheikhs had terminated before the institution of the suit. On the merits he found that the disputed land was within the village whereof the plaintiffs were the admitted proprietors. As regards possession he found that the plaintiffs were in occupation up to 1891, that in 1892 they let out the land to one Harbansa and that the tenant had possession till he was dispossessed by the Khans in 1898. Subsequently, in 1901, the plaintiffs purchased the holding of Harbansa at a sale in execution of a decree for arrears of rent. The Subordinate Judge finally held that the plaintiffs became entitled to recover possession, only when they purchased the holding in 1901. But as the lease granted to the Sheikhs in 1892 had not yet terminated, the plaintiffs were not entitled to recover actual possession The result was that on the 29th April 1912 a declaratory decree was made in favour of the plaintiffs. On the 5th April 1913 the plaintiffs instituted this suit against the Khans and the Sheikhs for recovery of possession. The Court of first instance decreed the suit against both. The Sheikhs did not appeal, but on the appeal of the Khans the District Judge has dismissed the suit as against both sets of defendants. He has held in substance that there is no new cause of action for this suit and that the plaintiffs cannot now sue for a relief which they could and should have obtained in the previous litigation. In our opinion this position cannot possibly be supported.

(3.) The Khans now contend that the lease granted by the plaintiffs to the Sheikha had terminated prior to the commencement of the previous suit. This is inconsistent with the allegation which the Khans made in the previous litigation. It is an elementary rule, based on the most obvious grounds of justice, equity and good conscience, that parties litigants cannot be allowed to take up inconsistent positions in Court to the detriment of their opponents. The plaintiff and the Khans are both equally bound by the decision of Mr. Justice Coxe that the lease in favour of the Sheikhs was in force at the time of the institution of the previous suit, and presented an effective bar to the recovery of actual possession by the plaintiffs. The plaintiffs are now entitled to succeed on proof that on the date of institution of this suit there was not in existence a sub tenancy created by them which could bar a decree for recovery of possession in their favour. It would be manifestly unjust, if the defendants were allowed to defeat the present claim on proof that, contrary to their previous allegation, a decree for recovery of possession might and should have been made in favour of the plaintiffs in the prior suit. In this view the decree of the District Judge cannot be supported.