HARI BHUSAN HALDER Vs. SHEIKH ABDUL

JUDGEMENT

(1.) These two appeals arise out of two suits for possession of 8 annas share of different plots of land by partition on the allegation that these lands belonged to the plaintiff and the pro forma defendant in equal shares; that the pro forma defendant had granted leases of his 8- annas share in the lands in 1910 to the defendants in both these suits, that by virtue of these leases the defendants took possession of the entire lands. The plaintiff served upon them notice to quit his 8-annas share, but they did not pay any heed to that notice and wrongfully remained on the land.

(2.) The defendants raised various picas which are not necessary to state in detail now. Several issues wore raised in the trial Court and that Court dismissed the plaintiff's suit for khas possession, but only declared his title to 8-annas share and his right to recover rent from the defendants with regard to his 8-annas share on the basis of the leases granted by the pro forma defendant the plaintiff appealed in both the cases against that decision of the Munsif arid on appeal the questions which were principally argued were whether the defendants got settlements of the entire lands in suits or only the 8-annas share of the pro forma defendant and whether the plaintiff was entitled to have khas possession of his share in the land on partition. With regard to the first point, the Subordinate Judge observes that it was common ground of the parties that the plaintiff had 8-annas share in the land while the pro forma defendant had the other 8-annas share. He also came to the conclusion that by virtue of the pattas, Exs. A and B, the pro forma defendant made settlements in respect of his share of the land only. Ho comes to this conclusion from the fact that the pattas did not purport to grant settlements of the entire lands and that the pro forma defendant had obtained decrees for rent only for his share with regard to the lands in suit.

(3.) The Subordinate Judge further remarks that the pattas did not specifically mention the quantity of land in his share, nor do they mention the extent of his share. The Subordinate Judge next observes that after the settlement the defendants began to possess the entire lands as tenants and made substantial structure thereon and many improvements. The Subordinate Judge further says that it is in evidence that the plaintiff was fully aware of these and also that the plaintiff gave notice to the defendants in 1912 asking them not to make further buildings on the lands. But he held that the plaintiff not having taken any further steps against the defendants who went on making the buildings was not entitled to treat the defendants as trespassers on his share of the lands. On that finding he dismissed the suit for khas possession on partition. In taking this view it seems that the Subordinate Judge had a somewhat vague idea of applying the rule of estoppel as against the plaintiff. That rule is, however, that where a person in bona fide belief that a certain property belongs to him spends money upon it and the true owner stands by and allows him to spend the money and make improvements upon his land, the true owner is estopped from asserting his title to the land as against the person making improvements in such bona fide belief.