NARSING DAS Vs. MUSAMMAT BIBI 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 hi other 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, Najim-ud-din, got his own name registered as proprietor under an alleged verbal gift from her and thenceforward continued dealing with the property as Lis 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 Najim-ud-din 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 Najim-ud-din to act as the owner of the property and also by reason of her having taken no objection as to the title of Najim-ud-dir 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 bat on second appeal this Court remanded the case for a clear finding on the question as to the character in which Najim-ud-din held possession of the property, i.e. whether lie 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.