1. ' This is a Second Civil Appeal filed under section 100, C.P.C. Against the judgment and decree dated 9-2-1995 passed by learned VII-Additional District Judge,. Karachi-East, in Civil Appeal No,143/94, Mst. Qamarun Nishan v. L/Rs, of deceased Chaudhry Muhammad Umer, whereby the said appeal was dismissed confirming the judgment and decree dated 3-7-1994 passed by VI-Senior Civil Judge, Karachi-East, in Civil Suit No,4370/83.
2. ' Brief facts of the case are that the respondents' predecessor-in-interest filed suit against the appellants for possession, mesne profits and permanent injunction in respect of premises constructed on Plot No,289/1, Alfred Street, Garden West, Karachi, on the ground that he was the owner of the said premises which was transferred to him as per Final Transfer Order dated 12-11- 1969 by. Settlement Authorities and the portion admeasuring about 140 Sq. Yds. Out of the entire plot transferred to him, was given to deceased Mushtaq Ahmad, husband of the appellant No,1, on rent who did not pay the same hence the respondents' predecessor-in-interest filed D.W.A.
3. Application No,483/1971 but in the said proceedings, the deceased, husband of the appellant No,1, denied the relationship of being tenant of the respondents therefore the ejectment application was got dismissed due to nonappearance of the respondents' predecessor-in-interest, Mushtaq Ahmad, deceased, husband of the appellant No,1 expired in the year 1982, leaving the appellants as only surviving legal heirs who also filed revision application before the Settlement and Rehabilitation Commissioner, Karachi, for cancellation of final transfer order in respect of property in question but the same was dismissed. In the said circumstances, the respondents' predecessor- in-interest filed the present suit against the appellants who filed written-statement stating therein that deceased Mushtaq Ahmad, predecessor-in-interest of the appellants was . In possession of land admeasuring 155 Sq. Yds. Out of the total area of plot bearing No,289/1, Alfred Street, Garden West, Karachi, since 1948 and whereupon he had raised an independent and exclusive house consisting of three rooms with attachment and, thus, was the sole absolute and exclusive owner thereof to the knowledge of the respondents and after the death of the said Mushtaq Ahmad in the year 1982, present appellants continued to reside in the said property as owners thereof. It was further stated that the possession of the said plot after the death of Mushtaq Ahmad remained with the present appellants and the title over the said plot was perfected by prescription, the possession of it being continues, hostile and notorious to the knowledge of the respondents. It was also stated that deceased Mushtaq Ahmad was not given the premises either as a licencee or as a tenant therefore there was no question of payment of rent to the respondents' predecessor-in- interest at any time. The Court of Senior Civil Judge settled the following issues:--
(1) Whether the suit is under-valued? If so, of what effect?
(2) Who has raised the construction?
(3) Whether the transfer of suit property has been effected without the possession of the plaintiff over the same?
(4) Whether the defendants and their father have been in possession of the suit property since 1948?
(5) Whether the plaintiff is entitled to the relief claimed?
(6) What should, the decree be?
4. ' The Court of Senior Civil Judge after recording the evidence and hearing the counsel for parties decreed the suit in favour of the respondents against which First Appeal No,143/93 was filed and was heard by VII-Additional District Judge, Karachi-East, and was dismissed on 9-2-1995 against which the present second civil appeal has been preferred.
5. ' I have heard the learned counsel Mr. Hyder Raza Naqvi for appellants and learned counsel Mr. Mumtaz Ahmad Shaikh for respondents and perused the R&P of the case and the case-law cited by the parties' counsel.
6. ' Learned counsel for appellants has stated that as per order dated 9-4-1995 at the time of admission of appeal, he has dropped all the pleas taken in his second appeal and has stated to confine his arguments at the time of regular hearing of the appeal as to "whether respondents/plaintiffs were estopped from bringing the present suit", therefore, he would adVance his arguments only on the said plea. He has referred to the extract of evidence of Aftab Ahmad, attorney of the respondents, from the deposition wherein it has been stated:-- "In 1954-55 deceased Mushtaq Ahmad came from India and my father gave him three rooms and one open space for residing, the area was 140 Sq. Yds. And he was given the same on rent. He used to pay rent of Rs,70 per month and gave the same till 1969 and thereafter did not pay the rent and gave application to Rehabilitation Department claiming himself to be the owner of the portion in his occupation and applied for its allotment, the Revision filed was heard and in 1970 said revision was dismissed."
7. ' Mr. Hyder Raza Naqvi in view of the above statement has argued that as deceased Mushtaq Ahmad was said to be tenant by the respondents' attorney, therefore, the respondents should have proceeded with their Ejectment Application No,1094/71 and should not have got it dismissed for non-prosecution therefore the present suit for possession, mesne profits and injunction against the appellants was not maintainable as the respondents were estopped for treating the appellants to be unauthorised occupants of the portion of the premises in their possession. He has placed reliance upon Gulfam and another v. Ali Muhammad and others (PLD 1989 Karachi 499) in support of his contentions.
8. ' Learned counsel Mr. Mumtaz Ahmad. Shaikh for respondents has argued that the respondents' predecessor-in-interest filed DW Application No,438/70 Exh.9/A in the Court of Small Causes at Karachi which was dismissed as withdrawn on 2-4-1971, thereafter ejectment Case No,1094/71 Exh.5/G was filed in which the appellants' predecessor-in-interest deceased Mushtaq Ahmad filed written statement Exh.5/H and the said ejectment case was dismissed for default as per Exh.5/J on 5-7-1980 and thereafter present suit was filed in which appellants. Filed written-statement. The deceased Mushtaq Ahmad and the present appellants in DW proceedings, in written-statement Exh.5/H filed in ejectment application as well as in the written statement filed in the suit, denied being tenant of the respondents or their predecessor-in-interest and claimed the premises in suit as owner thereof on the basis of adverse possession over the same to the knowledge of the respondents. Learned counsel for the respondent has argued that nowhere in the proceedings in the Courts below, the appellants took up the plea that either their predecessor-in-interest or they themselves, were the tenants of the respondents or their predecessor-in-interest therefore in this second appeal, the appellants could not be permitted to agitate the said plea of estoppel on the ground that Aftab Ahmad in his deposition Exh.5 had stated that deceased Mushtaq Ahmad was tenant in respect of premises in question. He has placed reliance upon Muhammad Aslam and another v. Imam Bakhsh and 2 others (1980 SCMR 879), and Atta Hussain Khan v. Muhammad Siddique Khan and others (PLD 1979 SC 965) in support of his contentions.
9. ' Section 100 of Code of Civil Procedure Code runs:-- "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds, namely:--
(a) the decision being contrary to law or usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by their Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits."
10. ' This second civil appeal was admitted on the only specific ground of estoppel as per order dated 9-4-1995 of this Court. It has been admitted before me that D.W. Application filed by Chaudhry Muhammad Umer the predecessor-in-interest of the respondent was dismissed as withdrawn as Mushtaq Ahmad Khan the appellants' predecessor-in-interest had denied to be tenant of the predecessor-in-interest of the respondents. It has also been admitted before me that the Ejectment Application No,1094/71 was also got dismissed in default as the appellants' predecessor- in-interest denied to be tenant of the respondents or their predecessor-in-interest and claimed to be owner on the basis of adverse possession. It has also been noted before me that the present appellants in their written-statement filed in the suit claimed to be owner of the premises in dispute on the basis of adverse possession and no where in the written-statement the appellants admitted to be tenant of the respondents therefore no issue about the relationship of tenancy between the parties was struck off in the suit. There is nothing in the deposition of Aftab Ahmed Exh.5 which could estop the respondents within the meaning of Article 114 of Qanun-e-Shahadat from filing their suit for possession against the appellants as the said Aftab Ahmad clearly stated that the appellants' predecessor-in-interest as well as the appellants themselves claimed to be owner of the portion in their possession and applied for its transfer and also filed Revision No,ScK- 4/1970 before the Settlement Authorities but it was dismissed as per Exh.5/F. It has also been stated in the plaint that the appellants and their predecessor-in-interest have denied to be tenant in the previous proceedings therefore present suit for the premises in dispute was being filed against the appellants. In the stated circumstances, the appellants cannot be permitted to approbate and reprobate considering that now in second appeal the appellants have stated that they were tenants of the respondents in respect of the premises in question therefore the respondents were estopped to use them as unauthorised occupant whereas in the earlier proceedings appellants and their predecessor-in-interest had denied to be tenant of the respondents. The appellants cannot be permitted in second appeal to take up a new plea of estoppel against the respondents only on the basis of statement made in the deposition which too would not come in the way of the respondents from filing the present suit. The said plea being a new plea cannot be permitted to be agitated in the second appeal keeping in view the decision reported in the case of Atta Hussain Khan v. Muhammad Siddique Khan and others (PLD 1979 SC 965) wherein Supreme Court held that where the plea was neither raised by the defendant in his written statement nor was fully justified in not entertaining objection necessitating enquiry into disputed question of facts and should be deemed to have been waived. In Muhammad Aslam and another v. Imam Bakhsh and 2 others (1980 SCMR 879) it was held that plea of estoppel being plea of fact cannot be taken note of by the High Court in second appeal. In the case of Gulfam v. Ali Muhammad and others (PLD 1989 Karachi 499) learned Judge in Chamber has held:-- "Doctrine of estoppel is an equitable doctrine, a rule of exclusion which implies that if a person has by act or omission altered his position, he would be estopped and be precluded or debarred from denying it."
11. This case (PLD 1989 Karachi 499) cited by the learned counsel for the appellants on the contrary supports the case of respondents as in the instant case the appellants have denied to be tenant of the respondents therefore appellants could not be permitted by doctrine of estoppel to claim to be tenant of the respondents when in the earlier proceedings up to the level of first appellate Court have denied to be tenant and had claimed to be owned on the basis of adverse possession.
12. Reference is made to Mst..Zainab and others v. Fazal Dad and others (PLD 1966 (W.P.) Lahore 1050) wherein learned Judge in Chamber at page 1054(D) observed:-- " ..The defendants cannot be permitted to approbate and reprobate. The plaintiffs withdrew the suits on the basis of the plea raised by the defendants. The defendants are estopped in law from subsequently taking a position contrary to the position they had taken up earlier. A reference may be made to Desai and others v. Channappa Mahalingappa and others (AIR 1934 Bombay 329) where it was held that ' a party cannot be allowed to say at one time that the question between him and the opposite-party as to adverse possession is not necessary to be decided in the suit and thereby induce the Court to refrain from deciding it and at another time say that because that question was not decided between him and the other party, the latter's claim is barred by adverse possession which is the very issue which he objected to be decided. Even if he is not estopped the principle of approbation and reprobation will apply and he cannot be allowed to take this stand- point'. This was also the view taken in Thana Ram and another v. Himiu Ramand and another (AIR 1935 Lahore 96) and their Lorships observed as, 'Litigants cannot be allowed to blow hot and cold.
13. Hence when a person who got execution Court to hold that a certain decree was declaratory one cannot subsequently take the plea that the decree is one for possession and is capable of execution'. Mr. M. Monir (the ex-Chief Justice of Pakistan) in the 4th Edition of Principles and Digest of the Law of Evidence has expressed his view at pages 746-747 in the following words: ' The basic principles underlying the doctrine of estoppel by election is that where A, dealing with B, is confronted with two alternative and mutually exclusive courses of action in relation to such dealing, between which he may make his election, and A so conducts himself as reasonably to induce B to believe that he is intending definitely to adopt the one course and definitely to reject or relinquish the other, and in such belief B alters his position to his detriment. A is precluded, as against B, from afterwards resorting to the course which he has thus deliberately declared his intention of rejecting.'
14. ' The general rule of estoppel underlying such class of cases is stated in Bigelow on Estoppel, Sixth Edition in the following words, 'it may be laid down as a broad proposition that one who, without mistake induced by the opposite-party, has taken a particular position deliberately in the course of a litigation must act consistently with it; one cannot play fast and loose'. It was held in Mahadeo Singh v. Pudai Singh (ILR 5 Lucknow 645) "that the defendant was estopped 'from raising that plea now and that it was too late for the defendant to deny the truth of his plea raised in the Revenue Court when the plea had compelled the plaintiff to put his plaint before the Civil Court for adjudication'. The view of the Court in Saira Bibi v. Chandra Pal Singh (AIR 1928 Oudh 503) was, when an appeal is rightly filed in a revenue Court but it is dismissed on the respondent's objection to the jurisdiction of that Court, and the appeal is subsequently filed in a Civil Court, the respondent will not be heard to object to the jurisdiction of the Civil Court'. In Mathra Das v. Kanshi Ram (120 IC 594) the Court held that 'a party who gets an application for revision dismissed on the ground that the order sought to be revised is appealable is estopped from contending, when an appeal is preferred by his opponent, that no appeal lies'. It was held in Hamanta Kumari Devi v. Parasanna Kumar Datta (ILR 56 Cal. 584), "'It is hardly consonant with justice that the defendants, who took up in the proceedings under section 105 the position that the applications did not lie, should be allowed to turn round and say that the said applications were entertainable in law, and as such operate as a bar to the suits. The present suits may rightly be said to have arisen out of the result of those applications. It is well-settled that a party litigant cannot be permitted to assume inconsistent position in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the deteriment of his opponent...'The principle enunciated in this case is applicable to the facts of this case."
15. The second appeal is permissible under section 100, C.P.C. When; (i) the decision is contrary to law;
(ii) the decision is contrary to usage having the force of law; (iii) there has been failure of the Courts below to determine some material issue of law and (iv) there has been failure to determine material issue of usage having force of law. The appellants' learned counsel has not been able to point out any ground whereby his appeal could fall within the mischief of section 100 of Code of Civil Procedure. Nothing has been shown as to how the decision given by the Courts below is contrary to law or any usage having force of law or there has been failure of Courts below to determine issue of law or issue of usage. The Courts below have properly appreciated evidence on record and no illegality warranting interference has been pointed out in this second appeal.
16. Consequently, appeal has no merits which is hereby dismissed.