# Sita Ram Tekriwal v. Raj Kumar & Ors

- **Citation:** (2016) 8 ILRA 1351
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-03
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sita-ram-tekriwal-v-raj-kumar-ors-44228
- **Pages:** 8

## Headnote

Shri M.K. Gupta, Shri A.K. Gupta, Shri Pankaj Agarwal

Held -

Paragraph 1: Nature of the Appeal
The present second appeal challenges a first appellate court judgment dated September 18, 2002, passed by
the Additional District Judge (ADJ), Gorakhpur. The ADJ's judgment had set aside a trial court order dated
November 17, 1983, thereby allowing the first appeal and decreeing the plaintiffs' original suit (O.S. No. 102
of 1980) for the reliefs claimed.
Paragraph 2: The Plaintiffs' Case
The plaintiffs filed the original suit asserting ownership over 26,000 square feet of land in Purdilpur,
Gorakhpur. They had leased it to the defendant (Sita Ram Tekriwal) via a registered lease deed dated
February 23, 1972, for a 23-year term to run a cinema. The agreement required a monthly rent of Rs. 931 for
the first 15 years (increasing to Rs. 1,131 thereafter) and a premium of Rs. 8,000. The defendant defaulted on
the premium-paying only Rs. 500 later under a written acknowledgment-and stopped paying monthly rent
in September 1977. Consequently, the plaintiffs terminated the lease via a 30-day registered notice dated
March 25, 1980, and sued for eviction, recovery of possession, outstanding dues of Rs. 45,716, and mesne
profits.
Paragraph 3: The Defendant's Pleadings
In his written statement, the defendant admitted executing the registered lease deed, taking possession, and
defaulting on the premium except for a Rs. 500 payment. However, he contested the eviction by arguing that
the land was demarcated under the U.P. Urban Zamindari Abolition Act, stripping the plaintiffs of ownership.
He further claimed that the payments were inherently premium payments rather than rent, which
automatically transformed his status into an absolute owner (Bhumidhar) under Section 164 of the UPZA & LR
Act. Finally, he contended that the 30-day notice could not terminate the lease because a permanent cinema
building had already been constructed on the plot.
Paragraph 4-5: Lower Court Trajectory
The trial court (Civil Judge-I, Gorakhpur) initially dismissed the plaintiffs' suit on November 17, 1983. On
appeal, the first appellate court reversed this dismissal on September 18, 2002, fully decreeing the suit in
1352 INDIAN LAW REPORTS ALLAHABAD SERIES

favor of the plaintiffs. Aggrieved by this reversal, the defendant preferred the present second appeal before
the High Court.
Paragraph 6: Formulation of Substantial Questions of Law
The High Court noted that while the second appeal was admitted in 2003, no substantial questions of law
were framed at that time. Upon reviewing the records and hearing arguments, the Court framed four specific
substantial questions of law concerning: (1) the alleged demarcation under the U.P. Urban Zamindari Abolition
Act, (2) the applicability of the doctrine of estoppel and acquiescence against the defendant, (3) whether the
defense was barred by law, and (4) the legal validity of the 1972 lease deed.
Paragraph 7:

## Text

8 All. Sita Ram Tekriwal Vs Raj Kumar & Ors.
1351
(2016) 8 ILRA 1351
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 1263 Of 2002

Sita Ram Tekriwal ...Appellant
Versus
Raj Kumar & Ors. ...Respondents

Counsel for the Appellant:
Shri G.N. Varma, Dr. Madhu Tandon, Shri H.M.B. Sinha , Shri Indrajeet Singh Yadav, Shri Kapil Rathore, Shri
R.K. Srivastava, Shri S.S. Yadav, S.S. Sharma

Counsel for the Respondents:
Shri M.K. Gupta, Shri A.K. Gupta, Shri Pankaj Agarwal

Held -

Paragraph 1: Nature of the Appeal
The present second appeal challenges a first appellate court judgment dated September 18, 2002, passed by
the Additional District Judge (ADJ), Gorakhpur. The ADJ's judgment had set aside a trial court order dated
November 17, 1983, thereby allowing the first appeal and decreeing the plaintiffs' original suit (O.S. No. 102
of 1980) for the reliefs claimed.
Paragraph 2: The Plaintiffs' Case
The plaintiffs filed the original suit asserting ownership over 26,000 square feet of land in Purdilpur,
Gorakhpur. They had leased it to the defendant (Sita Ram Tekriwal) via a registered lease deed dated
February 23, 1972, for a 23-year term to run a cinema. The agreement required a monthly rent of Rs. 931 for
the first 15 years (increasing to Rs. 1,131 thereafter) and a premium of Rs. 8,000. The defendant defaulted on
the premium-paying only Rs. 500 later under a written acknowledgment-and stopped paying monthly rent
in September 1977. Consequently, the plaintiffs terminated the lease via a 30-day registered notice dated
March 25, 1980, and sued for eviction, recovery of possession, outstanding dues of Rs. 45,716, and mesne
profits.
Paragraph 3: The Defendant's Pleadings
In his written statement, the defendant admitted executing the registered lease deed, taking possession, and
defaulting on the premium except for a Rs. 500 payment. However, he contested the eviction by arguing that
the land was demarcated under the U.P. Urban Zamindari Abolition Act, stripping the plaintiffs of ownership.
He further claimed that the payments were inherently premium payments rather than rent, which
automatically transformed his status into an absolute owner (Bhumidhar) under Section 164 of the UPZA & LR
Act. Finally, he contended that the 30-day notice could not terminate the lease because a permanent cinema
building had already been constructed on the plot.
Paragraph 4-5: Lower Court Trajectory
The trial court (Civil Judge-I, Gorakhpur) initially dismissed the plaintiffs' suit on November 17, 1983. On
appeal, the first appellate court reversed this dismissal on September 18, 2002, fully decreeing the suit in
1352 INDIAN LAW REPORTS ALLAHABAD SERIES

favor of the plaintiffs. Aggrieved by this reversal, the defendant preferred the present second appeal before
the High Court.
Paragraph 6: Formulation of Substantial Questions of Law
The High Court noted that while the second appeal was admitted in 2003, no substantial questions of law
were framed at that time. Upon reviewing the records and hearing arguments, the Court framed four specific
substantial questions of law concerning: (1) the alleged demarcation under the U.P. Urban Zamindari Abolition
Act, (2) the applicability of the doctrine of estoppel and acquiescence against the defendant, (3) whether the
defense was barred by law, and (4) the legal validity of the 1972 lease deed.
Paragraph 7: Arguments on Behalf of the Appellant (Defendant)
The appellant's counsel argued that the property was agricultural land being used for non-agricultural
purposes without a formal declaration under Section 143 of the UPZA & LR Act, meaning the civil court lacked
jurisdiction. He maintained that the land had vested in the State post-demarcation, making the lease deed
void. He also asserted that the appellant had become a sub-tenant, placing exclusive jurisdiction with the
revenue court, and noted that the failure to substitute a deceased co-plaintiff (Plaintiff No. 2) should fatalize
the decree.
Paragraph 8: Arguments on Behalf of the Respondents (Plaintiffs)
The respondents' counsel countered that because the defendant executing the registered lease deed and
taking possession were admitted facts, he was strictly barred from challenging his lessors' title under Section
116 of the Indian Evidence Act. He highlighted that issues regarding Section 331-A or lack of jurisdiction were
never raised in the lower courts and could not be introduced at the second appeal stage. Additionally, he
stated that the death of one co-owner does not prevent surviving co-owners from pursuing a valid eviction
suit.
Paragraph 9: Finding on Demarcation (Question 1)
The High Court observed that the burden of proving that the land was demarcated under the U.P. Urban
Zamindari Abolition Act lay squarely on the defendant, who failed to produce any documentary evidence. The
first appellate court properly scrutinized the facts to conclude that no such demarcation ever occurred.
Affirming this factual finding, the High Court answered the first substantial question of law in the negative,
against the appellant.
Paragraph 10-12: Finding on Estoppel under Section 115 (Question 2)
The Court extracted Sections 115 (Estoppel) and 116 (Estoppel of tenant) of the Indian Evidence Act, 1872. It
held that the defendant intentionally induced the plaintiffs to hand over vacant possession of the land by
executing a registered lease deed and promising to pay rent. Having obtained possession based on that
representation, the defendant cannot turn around and deny the plaintiffs' title or their right to reclaim
possession. Consequently, his defense is barred by Section 115.
Paragraph 13: Finding on Tenant Estoppel under Section 116 (Question 2 Continued)
The Court ruled that since the appellant entered the property purely as a lessee, Section 116 strictly prohibits
him from denying that his landlords held a valid title at the commencement of the tenancy. His defense is
fundamentally barred by the principles of estoppel and acquiescence. The second substantial question of law
was thus decided in the affirmative, against the appellant.
Paragraph 14-15: Defense Barred by Law (Question 3)
Combining its prior findings, the Court ruled that a tenant cannot legally alter their status to clear their own
title against a landlord without a formal declaration from a competent revenue court, which the defendant
lacks. His attempts to deny his prior admissions and claim Bhumidhari rights are entirely barred by Sections
115 and 116 of the Indian Evidence Act. The third substantial question of law was decided in the affirmative,
against the appellant.
Paragraph 16: Validity of the Lease Deed (Question 4)
The Court found no evidence of fraud, misrepresentation, or structural illegality in the execution of the lease
deed dated February 23, 1972. It noted the paradox in the appellant's argument: if the lease deed were truly
void, his possession of the land would be completely unauthorized, requiring an immediate restoration of
8 All. Sita Ram Tekriwal Vs Raj Kumar & Ors.
1353
possession to the plaintiffs. Finding the lease valid and the appellant estopped from arguing otherwise, the
fourth substantial question of law was decided in the negative.
Paragraph 17-19: Conclusion and Dismissal
The High Court concluded that the lower appellate court's judgment was thoroughly well-reasoned, free from
perversity, and based on a correct appreciation of evidence. The tenant cannot build a defense on claims that
contradict his own written agreements. Finding all arguments raised by the appellant unsustainable, the High
Court dismissed the second appeal with costs.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Present second appeal has been preferred against the judgment dated 18.9.2002 passed
by Additional District Judge Court, No.-2, Gorakhpur passed in Civil Appeal No. 79 of 1994,
Vishwanath Prasad & others Vs. Sita Ram Tekriwal, by which judgment dated 17.11.19823 passed
by Civil Judge-I, Gorakhpur in O.S. No. 102 of 1980 Vishwanath Prasad and others Vs. Sita Ram
was set aside and the first appeal was allowed for the relief claimed in the original suit.

2. In original Suit No. 102 of 1980 the plaint case in brief was that plaintiffs are onwers of
land detailed at the foot of plaint measuring approximately 26000 square feet situated in mohalla
Purdilpur, Gorakhpur. The defendant Sita Ram Tekriwal took the land in possession from the
plaintiff on lease by registered lease-deed dated 23.2.1972 for a period of 23 years and took the
possession of said land same day for running the cinema. The defendant agreed to pay from the date
of lease-deed Rs. 931/- per month as monthly rent for this lease in first week of each calendar
month regularly up to period of 15 years, and thereafter at the rate of Rs. 1131/- per month for the
remaining lease period in the like manner. The defendant had also agreed to pay Rs. 8000/- as
premium within 9 months from the date of execution of lease deed to the plaintiff. The defendant
did not pay Rs. 8000/- the amount of premium within time specified in lease deed in spite of several
demands. Subsequently on protest and demand from the side of plaintiff, the defendant gave a
signed written undertaking dated 4.2.1975 by which he acknowledged the liability to pay premium
of amount of Rs. 8000/- and assured the plaintiff for its payment at an early date. But he did not
honoured his assurance and avoided the payment of premium amount, and on 27.1.1978 defendant
only paid Rs. 500/- towards amount of premium for which he made the endorsement of partpayment on the back of writing given by him on 4.2.1975 in his handwriting and signature and
again acknowledged the liability to pay remaining amount of Rs. 7500/- by the same endorsement.
Since September, 1977 the defendant had not paid the monthly rent of Rs. 931/- per month in spite
of demand and request of plaintiffs. Therefore under terms of lease deed, in case of non payment of
rent continuously for 6 months, the plaintiffs are entitled to enter into possession of land in suit by
terminating the lease of defendants by giving 30 days' notice. As the defendants had failed to pay
monthly rent of disputed land for more than 6 months in continuation the plaintiff sent a registered
post notice dated 25.3.1980 to defendant through counsel for terminating the lease and for the
demand of amount of rent due as well as the remaining amount of premium due alongwith interest.
Said notice was served on defendant on 27.3.1980 but inspite of its service, the defendant had
neither paid the amount of rent and premium due nor had handed over the vacant possession of the
land in suit. Therefore, the plaintiff had filed suit for recovery of possession over land in suit
detailed in plaint by ejecting the defendant and recovery of Rs. 45,716/- as the amount due as above
1354 INDIAN LAW REPORTS ALLAHABAD SERIES

and also for recovery of damages at the rate of Rs. 931/- per month pendelte lite and till recovery of
actual possession of disputed property.

3. In original suit, defendant had filed written-statement in which he had admitted that he
had taken possession of disputed land from plaintiffs after execution of registered lease-deed dated
23.2.1972 and had agreed to pay monthly rent for 15 years at the rate of Rs. 931/- per month and
thereafter monthly rent at the rate of Rs. 1151/ per month and had also admitted to pay premium
amount of Rs. 8000/- against which he had paid Rs. 500/-. Except these admissions, the defendant
(present appellant in second appeal) had denied other plaint averments. In his written-statement, the
defendant had further pleaded that although lease deed was executed for plot no. 216 but the area
mentioned it also included the area of plot no 215. The disputed plot no. 216 was Khudkasht land of
plaintiffs no. 1 to 4 before the abolition of urban zamindari, but after its demarcation plaintiff had
lost its rights of ownership. The demarcation of these lands became final under section 3 of this Act.
When plaintiffs no. 1 to 4 needed the money then they had leased their aforesaid 26000 sq. Feet
land to defendant the limits of which is given in lease-deed by which disputed land was transferred
to defendant and the defendant had undertaken to pay rent and premium as stated above, but in fact
it is not amount of rent but is amount of premium. Therefore, defendant had automatically become
Bhumidhar on said land. The lease deed executed by plaintiffs no. 1 to 4 was illegal and ineffective.
The plaintiffs had already received Rs. 61,946/- from time to time from defendant who became
owner of disputed land under section 164 of UPZA & LR Act, 1951. Plaintiff cannot terminate the
lease in favour of defendant by notice of 30 days because cinema building is constructed over the
said land. The acknowledgment dated 4.2.1975 executed by defendant was not possible, therefore
the said acknowledgment cannot confer any right to plaintiff. Suit is liable to be dismissed.

4. After framing of issues and affording opportunity of hearing to parties the court of Civil
Judge-I, Gorakhpur had dismissed the original suit by its judgment dated 17.11.1983. Against this
judgment of trial court, Civil Appeal no. 79 of 1994 they've dated at that Nicola Manitoba your will
that we'll you in the Lane on the month is that if the peaceful review the sub number the sub to us
for parch totally because delay are to her bumper from the will only you number was but they
arewith this amount on the sum of the's was delayed in manner in the ballroom telephoning one,
positively Locarno Khatoni because you lay militiaman order will was preferred by plaintiffs which
was heard and allowed by the judgment dated 18.9.2002 of Additional District Judge, Court No.-2,
Gorakhpur. By this judgment, the first appeal was allowed and original suit was decreed for the
relief sought in plaint.

5. Against impugned judgment dated 18.9.2002 of the first appellate court, present second
appeal has been preferred by the defendant of original suit.

6. This second appeal was admitted by order dated 7.4.2003 of this Court, but at that time
no substantial question of law was framed. Therefore after hearing, after perusal of memorandum of
second appeal, original records and on the basis of arguments preferred by learned counsels for the
parties, following substantial questions of law are framed for deciding the appeal on merits:
8 All. Sita Ram Tekriwal Vs Raj Kumar & Ors.
1355
(1) Whether the disputed plot no. 216 had been demarcated under U.P. Urban
Zamindari Abolition Act? If so, its effect on rights of plaintiffs-respondents?

(2) Whether the defence advanced by defendant-appellant is barred by
doctrine of estoppels and acquiescence?

(3) Whether the defence advanced by defendant-appellant is barred by law?

(4) Whether the lease-deed dated 23.2.1972 executed by plaintiffs-respondents
in favour of defendant-appellant is null and void?

7. Learned counsel for the appellant contended that this is a suit for recovery of possession
of bhumidhari land but there is evidence that the said land is being used for non-agricultural
purposes. Since no proceeding under Section 143 of UPZA & LR Act has been conducted, therefore
no finding could be given about change of agricultural nature of disputed property. Without
considering these facts, judgment given by lower appellate court is erroneous. He further submitted
that after abolition of zamindari the UP urban Area Zamindari Abolition Act has come into
operation, and disputed land was demarcated. So plaintiffs had been deprived of their alleged
bhumidhari rights because disputed property had vested in State by operation of law; but these facts
were suppressed by the plaintiffs/respondents at the time of execution of registered lease-deed in
question which in itself is a void document and is not enforceable under the law. He further
submitted that defendant/appellant became sub-tenant of the disputed property which was earlier
held by plaintiffs, so relief of eviction is exclusively within jurisdiction of revenue court. Unless it
is proved that disputed property is non-bhumidhari land, as such, the relief cannot be granted to
plaintiffs. The lower court should have framed issues on this point before deciding the matter. He
submitted that civil court has no jurisdiction to grant relief for agricultural property. For these
reasons appeal should be allowed. He admitted after taking possession to the disputed land from
plaintiffs, defendant/appellant had stopped paying rent to him admissible under registered leasedeed executed by the parties. His submission was that in aforesaid circumstances civil court has no
jurisdiction to grant relief to plaintiffs. He further contended that plaintiff no.-2 of the original suit
had died and was not substituted; therefore relief cannot be granted regarding his share. These
points were not considered by lower appellate court at the time of passing of the impugned
judgment , therefore appeal should be allowed.

8. Learned counsel for the respondents contended that defendant/appellant had admittedly
executed registered lease deed dated 23.2.1972 and on same day had taken possession of said land
and agreed to pay rent, as admitted in the pleadings of the parties. His submission was that in any
circumstances, defendant cannot deny or challenge the right of his lessor and plea taken by him is
barred by doctrine of estoppel and from the provisions of Section 116 of Indian Evidence Act. He
further submitted that no plea of bar under Section 331-A of UPZA & LR Act and lack of
jurisdiction of court was taken by the appellant in lower court. Such plea cannot be raised directly
in second appeal by defendant/appellant. He further submitted that bhumidhari rights and title of
plaintiff over dispute property is admitted fact in the pleadings, and there is no evidence to prove
1356 INDIAN LAW REPORTS ALLAHABAD SERIES

that disputed property was ever demarcated; therefore the judgment of lower appellate court giving
such finding is without infirmity or error. He further submitted that in spite of absence of one coowner the other co-owners can file suit on his behalf for eviction; therefore, the death of plaintiff
no. 2 will not bar relief required in the suit. There is no error in the impugned judgment, so appeal
should be dismissed.

9. The main point of contention is that the disputed land has been demarcated under the
U.P. Urban Zamindari Abolition Act, therefore that plaintiffs-respondent had lost his legal rights
over it. The pertinent point is that if the said land was demarcated then that must have been some
evidence of it. This point was not properly considered by the trial Court, but the first appellate
Court had properly scruitinized the evidences and after discussing them, gave specific and direct
finding of fact that said land was not demarcated. This finding of the first appellate Court appears
correct that had there been any demarcation, there must have been evidence for the same. The
absence of any evidence regarding demarcation leads to only inference that the demarcation of
disputed land was not proved. The fact of demarcation was pleaded and asserted by the defendantappellant, therefore burden of proving the same is on defendant-appellant; but he had failed to
discharge this burden. Therefore findings of the first appellate Court in this regard is found correct
that the disputed land of plot no. 216, Purdilpur was never demarcated under the U.P. Urban
Zamindari Abolition Act, and said findings are hereby confirmed. Accordingly the first substantial
question of law is decided in negative, against appellant-defendant and in favour of the respondentplaintiffs.

10. Sections 115 and of 116 of the Indian Evidence Act, 1872 reads as under:

"115. Estoppel.-When one 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, neither he nor his representative shall be allowed, in any suit or proceeding between himself
and such person or his representative, to deny the truth of that thing.

Illustration- A intentionally and falsely leads B to believe that certain land belongs
to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A,
and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must
not be allowed to prove his want of title.

116. Estoppel of tenant; and of licensee of person in possession.- No tenant of
immovable property, or person claiming through such tenant, shall, during the continuance of the
tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy,
a title to such immovable property; and no person who came upon any immovable property by the
licence of the person in possession thereof shall be permitted to deny that such person had a title to
such possession at the time when such licence was given."
8 All. Sita Ram Tekriwal Vs Raj Kumar & Ors.
1357
11. In original suit, in reply to plaint averments, the defendant had filed written-statement
in which he had admitted that the disputed land was in possession and user of plaintiffs. After
accepting the plaintiffs to be the owner and title holder of said property he had taken possession of
it from them after execution of registered lease-deed dated 23.2.1972 and had agreed to pay
monthly rent for 15 years at the rate of Rs. 931/- per month and thereafter monthly rent at the rate
of Rs. 1151/ per month and had also admitted to pay premium amount of Rs. 8000/- against which
he had paid Rs. 500/-. Had there been no execution of lease-deed dated 23.2.1972andcontract for
payment of monthly rent as well as premium amount, there would have been no occasion for the
plaintiffs to hand over possession of disputed property and there was no reason for defendantappellant to get the possession of the same.

12. In this matter the defendant-appellant had by his act and declaration in form of
registered lease-deed had intentionally and deliberately caused the plaintiffs-respondents to believe
that he will pay lease rent and premium and shall recognize right of plaintiffs as owner/ lessor of
the property in question and hand over its possession to them after stipulated period. It is also
admitted that acting upon such belief, the plaintiffs-respondents had handed over the possession of
disputed property to defendant-appellant. Therefore the defendant-appellant cannot be allowed in
any suit to deny the truth of title and right to get possession back of said property. His defence as
well as the contentions in this appeal are not acceptable, and barred by section 115 of the Indian
Evidence Act.

13. After entering into registered lease deed and the contract is relating it, the appellant
became lessee and tenant of the disputed immovable property. Therefore under section 116of the
Indian Evidence Act, he or any person claiming through him cannot be permitted to deny being the
tenant and lessee of the plaintiff-respondents. The defence of the appellant is barred by the principle
of estoppels and acquiescence. Accordingly the 2nd substantial question of law is decided in
affirmative, and against appellant-defendant.

14. In view of the findings of first and second substantial questions of law, as above, it is
held that after its earlier admission at the time of execution of registered lease-deed dated 23.2.1972
regarding the title, lessor-ship and ownership of plaintiffs and their right to get back possession of
disputed property, the defence of the defendant-appellant containing denial of his earlier of
admission is barred by law. The defence of the appellant-defendant is barred by sections 115, and
116 Indian Evidence Act.

15. Apart from it the appellant had claimed in their written-statement that they had become
Bhumidhar of the disputed land. Any such right of appellant cannot be recognized unless it is
declared by competent revenue court, which is not their case. Without any such declaration, the
appellants cannot legally raise defence of their title and ownership of disputed land. Therefore their
defence is not legally acceptable and barred by law. The third substantial question of law is
accordingly decided in affirmative, and against the defendant-appellant.
1358 INDIAN LAW REPORTS ALLAHABAD SERIES

16. As held earlier the plaintiff-respondents had been in possession and user of disputed
property, and had been exercising their rights over it as owner, without any adverse claim from any
other person. The defendant-appellant had admitted their aforesaid rights. Admittedly on the
promise of defendant-appellant to act as lessor-tenant, the parties had executed registered leasedeed dated 23.2.1972 without any misrepresentation or fraud. In absence of any error or illegality in
said lease-deed, this enabled the defendant to take possession of the property in question. There is
no reason to hold said lease-deed as null or void. If said lease-deed was invalid or void, then
possession of appellant on its basis was erroneous, and the possession of plaintiff-respondents
should be restored. So there is no error in judgment under challenge in this appeal. Apart from it, as
held earlier the defendant-appellant cannot legally raise such plea in defence, and he is legally
estopped from doing so. The plea of defendant-appellant in this regards barred by principle of
estopple and acquiescence. For these reasons fourth substantial question of law is decided in
negative.

17. On the basis of above discussion it is found that the plaint case, on its facts was rightly
found proved by the first appellate court. This court had re-appreciated the evidences adduced by
parties during the proceedings, and discussed them before holding that disputed land belongs to title
and rights of plaintiffs-respondents, and also that the defendant-appellant is neither owner nor has
right to retain its possession. On examination of reasonings recorded by the learned first appellate
court in first appeal, I am of the view that its judgment is well reasoned and based upon proper
appreciation of entire evidences on record. These findings appear to have been given after
application of mind and are apparently acceptable. No perversity or infirmity is found in the finding
of fact recorded by the first appellate court to warrant interference through this appeal. None of the
contentions of learned counsel for the defendant-appellants can be sustained.

18. On the basis of above discussion it is also proved that defence of defendant-appellant is
not tenable. He cannot plead against his own admission which led the plaintiffs-respondents to hand
over possession of disputed property to him. It is also found that the defence of the appellant is
barred by principle of estoppels and acquiescence. It is also proved that the defendant-appellant had
failed to prove his right or title over disputed property, while plaintiff-respondent's rights over this
property is proved. Therefore appellant is not entitled to any relief in this second appeal.

19. In view of the above this appeal is dismissed with costs.
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