NARSINGH DAS Vs. RAFIKAN

JUDGEMENT

(1.) The plaintiff brought the suit giving rise to the present appeal on the allegation that her father had made a gift of the disputed property to her in 1859: that she gave a lease of the property to her father and mother, that on her father's death her brother and mother held possession under the lease until the death of her brother in 1898, when, on going to assume khas possession, she found herself obstructed by the defendants who claimed under alienations from her brother.

(2.) It appears that in 1879 her brother, Najimuddin, got his own name registered as proprietor under an alleged verbal gift from her, and thenceforward continued dealing with, the property as his own. In 1886 he mortgaged the disputed property to defendants Nos. 3 and 4. In 1888 he sold the same to defendants Nos. 1 and 2. In 1895 defendants Nos. 3 and 4 brought a suit on the mortgage and therein impleaded the plaintiff No. 1 as well as defendants Nos. 1 and 2 and Najimuddin as parties defendants. The suit was decreed, and at a sale held in execution thereof, the disputed property was purchased by defendants Nos. 3 and 4 for Rs. 6,500.

(3.) Amongst other things the defendants Nos. 3 and 4 pleaded in this suit that by reason of allowing najimuddin to act as the owner of the property, and also by reason of her having taken no objection as to the title of Najimuddin in the mortgage suit, the plaintiff was barred by the plea of estoppel. The Court of first instance decreed the suit. On appeal, the District Judge dismissed the suit; but on second appeal this Court remanded the case for a clear finding on the question as to the character in which Najimuddin held possession of the property, i.e., whether he had been in possession as manager or adversely, and also on the question of estoppel. The District Judge, on remand, has held that the possession was not adverse and that estoppel is not made out.