Mere participation in mutation proceedings does not amount either to a relinquishment or to an estoppel.

M. H. BEG, C. J.:- This is a Letters Patent appeal against the judement and decree of a learned Judge of the Delhi High Court (Himachal Bench) by which the learned Judge had allowed the second appeal of the respondents and reversed the concurring decrees of both Courts below. The plaintiff-appellant had brought a suit for a declaration that he is owner in possession of certain land, which had been sold by Smt. Suhago defendant No.1 to Kidar Nath defendant No.2 on 14th October, 1958, and for an injunction to prevent interference with the plaintiff's possession. The plaintiff assailed the validity of the sale on the ground that Smt. Suhago, the widow of Thakur Dass had purported to sell her husband's property, which she had forfeited when she remarried in 1930.

2. A number of issues were framed including an issue on the question whether the suit for a declaration and an injunction to protect possession was maintainable as the defendants were in possession, and, therefore, without suing for possession, the plaintiff's suit must fail. Both the Courts below had concurrently found that the plaintiff was in possession. This finding had not been reversed by the learned single Judge.

3. Another plea in defence was that the plaintiff was estopped from filing the suit by his acts and conduct. Otherwise, the right of the plaintiff to sue as a reversioner seemed to be admitted. The defendant purchaser had also pleaded that the sale in his favour dated 14th October, 1958 was protected as he was bona fide purchaser for value of the land in suit.

4. It cannot be disputed now seriously that Smt. Suhago had forfeited her right to the property of her husband Thakur Dass before the Hindu Succession Act, 1956 as she had remarried after the death of Thakur Dass. However, it was urged by learned counsel for the defendants-respondents that the custom of forfeiture on a widow's remarriage is not proved. But he cited cases relating to the widow's remarriage with a brother of the deceased husband, and even these cases did not come from Kangra District where this case arose. Therefore, the finding that Smt. Suhago had forfeited her rights in the property of her late husband on her remarriage cannot be disturbed now. In fact, this was the assumption on which the learned single Judge proceeded when he held that, although, there was a forfeited, yet the plaintiff-appellant had waived his rights and was therefore, estopped from asserting them. The main issue now was whether the plaintiff-appellant was estopped from asserting his rights due to any waiver as held by the learned single Judge.

5. It is rather surprising that we find nothing in the judgment under appeal which could amount to setting aside the concurrent findings of fact given by both the Courts below that the plaintiff-appellant was in actual and exclusive possession of the land in dispute. In factm, unless this finding was there, the plaintiff's suit would have failed on the ground that the basis on which the plaintiff came to Court, that is to say, that he was the owner in possession, was wanting in the case. We find a very categorical finding, on plaintiff's exclusive possession, given by the trial Court. The first appellate Court had also held, very explicitly, that the Jamabandi entries, showing joint possession of the plaintiff with Smt. Suhago, had no effect inasmuch as the presumption of correctness of these entries had been sufficiently rebutted by other more reliable evidence on record. It then went on to give the finding:-

"That lower Court has rightly held that the plaintiff has been proved to be in exclusive possession of the suit land, and therefore, the suit for declaration is competent."

It is difficult to see how a person who is in exclusive possession and enjoyment of the land he is cultivating could be said to have waived or relinquished his right in it.

6. The learned single Judge had upheld the contention that there was a "waiver" of the plaintiff's right, because the plain