JUDGMENT

Rampini, J. - The facts of the case, out of which this appeal arises, are as follows:

The plaintiff alleges that he has purchased a plot of 8 cottahs of land in Kidderpore from one Punti Bewah and seeks to eject the defendant, who is now in possession of it. He admits that his vendor Punti Bewah previously to his purchase of it sold the and to the defendant, but he alleges that this sale was a fraudulent one, brought about by undue influence on the part of the defendant, who was Punti Bewah's mukhtear in certain criminal cases.

2. The defendant contended that Punti Bewah had no title to the land and that the true owner of the land was Narain Khela, from whom he purchased it. He admits that he previously purchased the land from Punti Bewah in ignorance of the title of Narain Khela, but avers that, when he learnt of Narain Khela's title, he obtained a conveyance of it from him.

3. The Judge has found (1) that Punti Bewah had no title to the land either by inheritance or adverse possession, (2) that it belonged to Narain Khela, (3) that the plaintiff paid no consideration for the deed of sale, which Punti Bewah executed in his favour for the land and that therefore there was no real sale by Punti Bewah to the plaintiff. He accordingly dismissed the suit.

4. The plaintiff appeals. On his behalf it has been contended

(1) that the plaintiff's deed of sale is valid, though no consideration may have been paid by him,

(2) that the conveyance is not void, but voidable,

(3) that the defendant is estopped from setting up the title of Narain Khela without giving up possession to Punti Bewah or her representative, and

(4) that he is a constructive trustee on behalf of Punti Bewah and can only ask in this suit to be reimbursed for the sum of Rs. 500, which he paid to Narain Khela for his title to the land.

5. It seems unnecessary to consider the first and second of these grounds of appeal. Punti Bewah has been found to have had no title. She had therefore no interest in it, which she could convey to the plaintiff. It is therefore immaterial, whether the conveyance was a good conveyance or not and whether it was void or only voidable.

6. The learned pleader for the appellant admits that the defendant is not estopped from setting up the title of Narain Khela by any rule of estoppel to be found in the Indian Evidence Act or any other Statute prevailing in this country. But he argues the defendant obtained possession from Punti Bewah and ought therefore, when sued for ejectment by Punti Bewah's assignee or representative to give up possession of the land before he sets up the title of Narain Khela or at all events he ought only to ask to be reimbursed the sum he paid to perfect his title before giving up possession of it to the plaintiff. The learned pleader for the appellant in support of these contentions cites the cases of Datton v. Fitzgerald (1897) 1 Ch. 440, Bigelow on Estoppel, p. 356 and Rajah Kishen Bait Ram v. Rajah Mumtaz Ali Ehan I.L.R.(1879) Cal 198.

7. These questions so raised on behalf of the appellant need only, I think, be considered, if the plaintiff has a good conveyance of the land, which the Judge of the Court, below has found that he has not. But assuming that he has such a good conveyance, I would answer firstly that the plaintiff has never asked in his plaint or in either of the Courts below for the relief which his pleader now asks for him. In both the Courts below the plaintiff has strenuously contended that his vendor had a good title to the land. Secondly, that it would be useless for the defendant to deliver up possession to the plaintiff. He has title to the land. The plaintiff would be bound, if not prevented by rules of procedure, to give back possession to him on his suing for possession and proving his title. Thirdly, the circumstances of the case referred to are very different from those of the present case and do not seem to warrant the conclusions the learned pleader endeavours to induce us to draw from them.