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Civil Revision (Regular Second Appeal) No. 90 of 1957, decided on 5th April 1963.
S. 115‑No estoppel against law.
S. 115‑Estoppel‑Principle applicable only if person has by his declaration, act or omission, intentionally caused or permitted another to believe a thing to be true and to act upon such belief.
M. Sirajuddin Ahmad for Petitioner.
A. R. Sheikh and Fazle Haq for Respondent.
Date of hearing : 1st April 1963.
This is a regular second appeal against the order passed by the learned District Judge, Jhelum, on the 16th of February 1957. This will now be treated and decided as a civil revision.
2. 211 kanals 15 marlas of land situate in village Faridkasar and Achral, Tehsil Chakwal, was owned by Allah Dad. Allah Dad bad two sons, Sultan Mahmud and Muhammad, plaintiff‑respondents. Sultan Mahmud died in the year 1905 during the lifetime of his father Allah Dad. Allah Dad died in the year 197‑0. The land in dispute was mutated in the name of Muhammad, plaintiff‑respondent and Mst Allah Rakhi, widow of Sultan Mahmud in equal shares. On the death of Mst. Allah Rakhi, on the 19th of November 1952 the property that stood in her name was transferred 5/8th in the name of Mst. Rahmate, defendant‑appellant, her daughter, and 3/8th in the name of Muhammad, plaintiff respondent. Muhammad plaintiff -respondent filed this suit for possession on the 20th of February 1955 claiming that the 5/8th share had been wrongly transferred to Mst. Rahmate, defendant‑appellant, she being the daughter of a pre‑deceased son, was not entitled to inherit the property of Allah Dad, her grandfather. The suit was dismissed by the trial Court but it was decreed on appeal. Consequently this is the revision petition against the appellate order.
3. The suit was contested by Mst. Rahmate, defendant -appellant, on various grounds. The learned Civil Judge framed the following issues :‑
(1) Whether the suit was rightly valued for the purposes of court‑fees and jurisdiction
(2) Whether the plaintiff was estopped from bringing this suit
(3) Who was the last male owner of the land in dispute
(4) What is the share of the plaintiff in the land in suit
(5) Relief.
The trial Civil Judge decided Issue No. 2 in favour of defendant -appellant, and dismissed this suit, but the learned District Judge reversed the finding on Issue No. 2 and decreed the suit with costs throughout.
4. The learned counsel for the defendant‑appellant argued that it was proved by the evidence of Ghulam Ali Patwari (D. W. 9) that the mutation of the property left by Mst. Allah Rakhi was entered in favour of the parties in pursuance of an agreement arrived at between them. That the mutation remained unchallenged for a period of over two years. That the parties effected a partition of the property and lastly that Sultan Mahmud, the father of Mst. Rahmate defendant‑appellant owned land in District Sargodha and Mst. Rahmate gave up her right in that land and in consideration of that the plaintiff respondent bad agreed to have the mutation of the land in dispute to be effected in her name. That all these facts established that the mutation of the property in dispute was effected with the consent of the plaintiff‑respondent, he was, therefore, estopped from challeng ing the legality of the same. The learned District Judge very minutely gone into the evidence and has come to the conclusion shat the evidence failed to establish that the mutation was effected at the instance or with the concurrence of the plaintiff‑respondent. I have also gone through the entire evidence and am agreed with the findings of the learned District Judge. In para. 4 of the written statement the defendant‑appellant mentioned the following facts in support of the plea of estoppel against the plaintiff‑respondent. That the plaintiff‑respondent consented in the mutation and had willingly partitioned the property which was in their respective possession and that the plaintiff had himself fixed the share of the defendant -appellant in front of the panchayat and that he gave possession of the land to her, consequently he was now estopped from challenging this mutation. Muhammad Khan (D. W. 1) who is the husband of Mst. Rahmate stated that it was agreed between the parties that Mst. Rahmate would not claim her share in the property in Sargodha District and that she would have 5/8th share out of the land left by Allah Dad in these two villages. That after this was agreed to by the plaintiff‑respondent both of them had gone to the Patwari to have the mutation entered and that later on they willingly partitioned the property with the help of the Patwari. He admitted in the cross‑examination that they had decided this according to shariat. Ghulam Safdar (D. W. 2) has also made a similar statement. He admitted that the plaintiff‑respondent had come to the village one or two days before the death of Mst. Allah Rakhi and stayed there for about ten or twelve days. Mst. Allah Rakhi died on the 19th of November 1952. The mutation was entered on the 10th of December 1952. It is clear from the statement of the Patwari that the mutation was entered by him on the basis of his knowledge of the death of Mst. Allah Rakhi which he obtained from the Chaukidar's register. In the report and the order of mutation no mention has been made of any compromise or an agreement having been arrived at between the parties. The mutation was neither entered in presence of the plaintiff‑respondent nor was it sanctioned in his presence. In fact, it is clear from the evidence of Ghulam Safdar (D. W. 2) that the plaintiff respondent was not in the village when the mutation was entered, so the story of a compromise with the plaintiff‑respondent as narrated by Muhammad Khan (D. W. 1), is absolutely false, because, according to him, the mutation was entered on the day when the compromise was arrived at, and the compromise was arrived at four days after the death of Mst. Allah Rakhi, therefore, all this evidence has been rightly rejected by the learned District Judge. The evidence of Rahmate (D. W. 3), Aksar (D W. 4), Noor Khan (D. W. 5), Muhammad (D. W. 6), Ahmad Khan, son of Mst. Rahmate (D. W. 7), also is on the point of the agreement before the brotherhood. They also stated that an agreement was arrived at on the 4th day after the death of Mst. Allah Rakhi and the mutation was consequently entered. This is falsified by the statement of the Patwari, Ghulam Ali (D. W. 9). Ghulam Ali (D. W. 9) stated that Muhammad plaintiff‑respondent and Muhammad Khan had told him that Mst. Rahmate had 5/8th share according to Muslim Personal Law. There is no doubt that if Mst. Rahmate was the daughter of a predeceased son, her share would have been 5/8th in the property left by Mst. Allah Rakhi. So the admission even if accepted to have been made by Muhammad plaintiff‑respondent will not estopped him from challenging the transfer in the name of Mst. Rahmate when according to Shariat Law she was not entitled to inherit the property of Allah Dad, her grandfather.
5. On the evidence produced by the defendant‑petitioner a plea of estoppel is not available to her. Estoppel as defined in section 115 of the Evidence Act, would apply only if a person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. I n the present case there is no such evidence. The evidence led by the defendant‑appellant is unworthy of credence. Moreover, even if it is accepted it does not go beyond the fact that at one time the respondent admitted that the plaintiff‑appellant had 5/8th share in the property left by Mst. Allah Rakhi. Some of the facts brought out in the evidence to support the plea of estoppel were not even mentioned in the written statement. Unless there is evidence that Mst. Allah Rakhi had altered her position to her detriment on a representation made by the plaintiff‑respondent the rule of estoppel will not apply. There is nothing on the record to substantiate this position.
6. The decision of the learned District Judge on issue No. 2 is, therefore, upheld and the revision petition is dismissed. However, there will be no order as to costs.
K. B. A./A. H. Petition dismissed.
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