Baghel Singh and ors. Vs. Mihan Singh and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - because of that declaration, act or omission the party pleading the estoppel must not only have been caused or permitted to believe a thing to be true by the other side but it also must have acted upon such belief in such a detrimental manner that it would be against equity and good conscience to allow the person againstwhom the estoppel is pleaded to deny the truth of the thing which he had caused or permitted to be believed. , that in the earlier proceedings the plaintiffs in this case did not admit the validity of the sale in favour of the defendents and their failure to assert expressly their claim to pre-empt did not amount to a waiver which estopped them from bringing their subsequent suit for pre-emption.soni, j. 1. before 1939 diwan singh had mortgaged the land' in dispute with possession with anokh singh and others. in february 1939 diwan singh created the plaintiffs permanent lessees of the land giving them the right to redeem the land from the mortgagees. in exercise of this right to redeem, the plaintiffs madean application on 15-4-1941 to the revenue officer for redemption from anokh singh and others. while this application was pending diwan singh sold the land on 9-2-1942 to baghel singh and others the present defendants-appellants. the application ex. d 4 appears tb be an amended application put in on 9-4-1942 making the vendees-defendants-appellants parties because of this sale. the revenue officer dismissed the application on the finding that the land had been redeemed by the vendees-defendants-appellants. thereupon a suit was brought by the plaintiffs on 1-8-1942, in which the vendees-defendants-appellants were made parties because of the sale in february 1942 in their favour. exhibit d 5 is the plaint in that suit. it was prayed therein that even if it be proved that the vendees-defendants-appellants had redeemed the land, the plaintiffs had a right to possession on account of there being a permanent lease in their favour from diwan singh. while this suit was pending the plaintiffs brought the present suit against the vendees-defendants-appellants on 8-2-1943 for preemption of the land in dispute. amongst other issues the following issue was framed by the trial court and it is only with this issue that the district judge and falshaw j. were concerned and it is this issue which we have to deal with now in this letters patent appeal. the issue is :'are the plaintiffs by their conduct contained in the statement of the vendees' counsel estopped from bringing the suit?'2. the trial court observed that the plea of estoppel was based on two contentions. the first contention was that the plaintiffs were estopped on account of their watching without objection the construction of 'kothas' and the planting of trees. the court found that the present suit had been filed before these acts were said to have been committed. the second contention was that the plaintiffs were estopped because in their application for redemption of the land they had made the venders-defendants parties and that in their prior suit they had based their right of possession of the land on account of the lease, and had not reserved their right of pre-emption. regarding these the trial court remarked that the rights of the plaintiffs under the lease were not inconsistent with their right of pre-emption and that it was not necessary to reserve those rights in the prior suit. the trial court on these findings held that there was no estoppel by conduct. on appeal the finding of the trial court regarding the first contention does not appear to nave been challenged before the district judge. the district judge held that on account of the previous litigation and on that account only the present plaintiffs had accepted the validity of the sale in favour of the vendses-defendants. falshaw j. reversed the district judge's judgment. in letters patent appeal it is urged that falshaw j. was wrong.3. in all cases of estoppel there must be a declaration or an act or omission by the person against whom the estoppel is pleaded which is unambiguous and unequivocal. because of that declaration, act or omission the party pleading the estoppel must not only have been caused or permitted to believe a thing to be true by the other side but it also must have acted upon such belief in such a detrimental manner that it would be against equity and good conscience to allow the person againstwhom the estoppel is pleaded to deny the truth of the thing which he had caused or permitted to be believed. the plaintiffs in their application for redemption or in the plaint of their subsequent suit had merely put down a fact which had happened viz., the sale in the vendees-defendants' favour and had therefore made them parties in those proceedings but they had never mentioned, not to say given up their right of pre-emption. in my opinion, it cannot be deduced from their conduct that they ever permitted or caused the defendants to believe that they (the plaintiffs) had given up or waived their right of pre-emption. they were concerned in their application under the redemption of mortgages act before the revenue officer with merely asserting their right of redeeming the land from the mortgage. this is not inconsistent with their asserting their right of pre-emption later. in their subsequent suit they were concerned with their right of remaining in possession of the land because of a title in them, viz.. that of permanent lessees, without caring who the owner was. this again, in my opinion, is not inconsistent with their asserting their right of pre-emption and with the courts having to find out whether they were entitled to pre-empt the land. the earlier suit was based on a different set of facts giving rise to a different title in the plaintiffs in both these proceedings or because of these proceedings it appears to me that it cannot be urged that the vendees-defendants acted in any manner to their detriment unless this further detrimental act on the part of the defendants is proved to be caused by a belief said to be engendered in them by the plaintiffs' conduct, all the ingredients of the plea of estoppel are not made out.4. the argument for estoppel is based 'only' on the recitals of sale made in the two earlier proceedings when the vendees-defendants were made parties by the plaintiffs. the recitals which preceded the impleading cannot be placed on a higher footing than statements of the. plaintiffs admitting that by virtue of a sale by diwan singh, the previous owner of the land, the vendees-defendants had become owners. it may at the most be argued that they are what wigmore calls quasi admissions. but even admissions under section 31, evidence act are not conclusive proof of the matters admitted, though they may operate as estoppels, if the provisions regarding estoppels are fulfilled. they may become foundations of rights coupled! with other facts. short of those facts, they do not ripen into estoppels, and unless they reach that status admissions are nothing more than items of evidence which are not in any sense final. they show at the most a party's inconsistency. their value or weight is to be judged according to circumstances. they have as wigmore says, 'no quality of collusiveness'. circumstances in the present case suggest that the recitals of sale in the application & in the plaint in the previous suit were not made with the intention of conveying to the other side the relinquishment or abandonment of their right of pre-emption.5. the recital of the sale in the infructuous application for redemption leads to no conclusion whatever. in --'baij nath ram v. ramdhari chowdhry', 35 cal. 402 (a) the privy council observed :'until the decree for pre-emption was made, n owned the land as purchaser and had aright to redeem. the taking out of the money by the plaintiffs, as mortgagees, was no recognition of anything more than this, and was quite consistent with the claim to pre-empt'.it is, however, argued that in the earlier suit, the plaintiffs elected to base their claim of possession of the land in dispute on their right as lessees without reserving their right of pre-emption. regarding election spencer bower observes (at pp. 246-47) as follows: 'nor is there any estoppel by election where the acts and conduct relied upon as a declaration of such election are ambiguous, that is to say, not necessarily inconsistent with an intention to reserve the rights which the supposed elector is alleged to have definitely waived or abandoned. * * the statements of the party sought to be estopped must be shown to have been of such an unequivocal, definite, clear, cogent and complete character as to invite an irresistible inference that the party intended thereby to express a final and conclusive election to adopt one of the two courses open to him and to discard or waive the other'.6. in all cases of representation capable of raising an estoppel the representation must be shown to have been made with the intention of producing a certain state of belief in the mind of the representee. was the recital in the earlier suit made with the intention of creating such a belief? can from the words used in the paragraphs of the plaint in the earlier suit be spelt out 'the unequivocal, definite, clear, cogent and complete character' of any statement of the plaintiffs evidencing the intentional relinquishment of a right of the waiver thereof? the essence of a waiver, it has been said, is estoppel and where there is no estoppel, there is no waiver. what have we in the present case? a mere recital in the plaint of the earlier case of the fact of the sale 'without anything more'. that is all that is done. there is no other fact for the vendees-defendants to rely upon. there is nothing more. there is no intention of creating a belief and there is no belief created in the vendees-defendants' minds, and there is proved no subsequent action whatever by the vendees-defendants in consequence of the alleged creation of belief. in my opinion the present case comes near the case of -- 'azim v. bahdur khan', a. i. r. 1928 lah. 63 (b) in which it was observed by jal lal j. (shadi lal c. j. concurring) that in the circumstances there was no provision of law which required the plaintiff to reserve in the plaint any other rights which he may possess by virtue of separate transactions or causes of action. nor, as observed in--'fazal dad khan v. sawan singh', 37 pun re 1908, (c) was he bound to inform the defendants of his intention to sue for pre-emption so as to give them time to pass the land on to another person before the plaintiffs suit could be filed. i agree with the opinion of falshaw j., that in the earlier proceedings the plaintiffs in this case did not admit the validity of the sale in favour of the defendents and their failure to assert expressly their claim to pre-empt did not amount to a waiver which estopped them from bringing their subsequent suit for pre-emption. that subsequent suit could only be barred if the provisions of rule 2 of order 2 civil p. c., were applicable to the present suit. it was not arguedthat they were, nor in the circumstances of the present case could it have been not argued that they were.7. i would for the reasons given dismiss with costs this appeal and uphold the order of falshaw j., with the consequential modification of allowing the plaintiffs time to deposit the decretal amount in the trial court by a date to be fixed by that court instead of 28-4-1949 as ordered by him.kapur, j. 8. i agree