Judgment The instant appeal arises out of the judgment and decree passed by the learned Subordinate Judge, Maida, in O.C. Appeal No. 102 of 1969 reversing the judgment and decree passed by the learned Munsif, First Court, Maida in O.C. Suit No. 154 of 1967. 2. The defendant is the appellant in the instant appeal and the aforesaid O.C. Suit No. 154 of 1967 was instituted by the plaintiffs-respondents for ejectment of the defendant appellant from the suit premises described in schedule 'Ka' to the plaint on the ground that the defendant was a monthly tenant in respect of the suit premises at a rental of Rs. 6/- per month according to Bengali Calendar but the said defendant had made default in payment of rent and for such default, the plaintiffs had earlier filed another suit being O.C. Suit No. 285 of 1954 for the defendant's ejectment and for recovery of arrears of rent. The said previous suit, viz., O.C. Suit No. 285 of 1954, however, ended in compromise and a solenama was filed in the Court on the basis of which a consent decree was passed and in the said petition of compromise, the defendant agreed to pay all arrears of rent and it was stipulated that if the defendant paid the said arrears of rent then he would not be evicted. There was also a further stipulation that if the defendant would pay a further sum of Rs. 262/- within a fixed date mentioned in the said application then the plaintiffs would convey another plot of land to the defendant and the defendant would be entitled to dismantle the structure at the said premises and remove the same at his cost. The plaintiffs contended in the instant suit that in terms of the compromise decree, the defendant paid the arrears of rent but failed to make the further payment of Rs. 262/on account of valuation of another land which was agreed to be conveyed by the plaintiffs on payment of the said sum. The plaintiffs also stated that the defendants made default in payment of rents subsequently for nine months from Jaistha 1373 B.S. to Magh 1373 B.S. and as such he was liable to be evicted. 262/on account of valuation of another land which was agreed to be conveyed by the plaintiffs on payment of the said sum. The plaintiffs also stated that the defendants made default in payment of rents subsequently for nine months from Jaistha 1373 B.S. to Magh 1373 B.S. and as such he was liable to be evicted. The plaintiffs also contended that the defendant's tenancy was duly determined by proper notice and the plaintiffs also required the suit promises for their own use and occupation by making a construction of a new building on the said land. 3. The suit was contested by the defendant-appellant by filing a written statement and it was contended by the defendant that he was a nonagricultural tenant in respected of the land and out of his own cost he erected the structures on the Said land and as such his tenancy could not be governed by the West Bengal Premises Tenancy Act. The defendant also contended that the aforesaid compromise .decree in the previous suit was effected by practicing fraud on the defendant and the defendant had no knowledge about the contents of the said compromise petition and as such the compromise decree was also not binding on him. The defendant also contended that the land which was agreed to be conveyed by the plaintiffs to the defendant in terms of the said compromise decree was not at all a suitable land for construction of a house. After a contested hearing of the said suit, the learned Munsif came to the finding that there was no relationship of landlord and tenant between the parties in respect of the suit premises and the defendant was not a tenant in respect of the suit premises but the defendant really raised structures on the land out of his own expenses. The learned Munsif also found that there was no reasonable requirement for the plaintiffs in respect of the suit premises, Accordingly the said suit was dismissed by the learned Munsif. 4. The plaintiffs being aggrieved by the said judgment and decree of the trial court preferred the above appeal being O.C. Appeal No. 102 of 1969 of the Court of the learned Subordinate Judge, Maida. 4. The plaintiffs being aggrieved by the said judgment and decree of the trial court preferred the above appeal being O.C. Appeal No. 102 of 1969 of the Court of the learned Subordinate Judge, Maida. It appears that the learned Subordinate Judge came to the finding that the said compromise decree did not operate as res judicata but the said compromise decree did operate as an estoppel against the defendant from raising the contention that he was a non-agricultural tenant and that he was not the tenant in respect of the suit premises in view of the fact that in the compromise petition, the defendant agreed to pay house rent in respect of the suit premises, The learned Subordinate Judge also held the plaintiffs had established that they were the owners of the suit premises and the defendant failed to establish that the suit premises was built by him. Accordingly, the Court of Appeal below reversed the judgment and decree of the trial Court, allowed the said appeal and decreed the suit in favour of the plaintiffs. 5. The defendant thereafter preferred the instant appeal and Mr. Das Gupta; learned Counsel appearing for the defendant-appellant contended that the court of Appeal below proceeded on an erroneous view that in view of the compromise decree passed in the previous suit between the parties, the defendant was estopped from contending that he was a non-agricultural tenant in respect of the land on which the structures stood but he was not a tenant of tile premises as alleged by the plaintiff". Mr. Das Gupta contended that it is now a settled law that the compromise decree does not operate as res judicata and the learned Court of Appeal below also took note of the decision of the Supreme Court to that effect made in the case of Baldevdas Shiblal v. Filmisthan Distributors reported in AIR 1970 SC 406 but the Court of Appeal below erred in law in proceeding on the view that although the said compromise decree did not operate as res judicata, the said decree operated as an estoppel against the defendant debarring him to contend that he was not a tenant in respect of the suit premises. Mr. Mr. Das Gupta contended that a compromise decree ipso facto does not operate as estoppel by judgment in all cases but in certain circumstances, a compromise decree operates as estoppel by judgment against the parties in suit. Mr. Das Gupta contended that it is incumbent for a party to plead specifically such estoppel by conduct in view of the compromise decree if a party wants to rely on a compromise decree in his favour. Mr. Das Gupta drew the attention of the Court to the pleading made by the plaintiffs and pointed out that no pleading whatsoever was made by the plaintiffs that the said compromise decree operated as an estoppel against the defendant. Mr. Das Gupta contended that estoppel being essentially a question of fact, requires determination by 'the Court and until and unless there is specific pleading by a party and evidences are led in support of such pleading, the contention of estoppel by conduct cannot be decided by a court of law. In this connection Mr. Das Gupta relied on the decision of the Supreme Court made in the case of Pulavarthi Venkata Subba Rao v. Valluri J. Rao, AIR 1967 SC 591 . It was held by the Supreme Court in the said decision that a compromise decree does not operate as res judicata but such decree might operate as estoppel by conduct but estoppel by consent must be specifically pleaded by a party. Mr. Das Gupta also referred to another decision or the Supreme Court made in the case of His Holiness Digva D. Rajendra Ram Doss, v. Devendra Doss. AIR 1973 SC 268 ; It was held by the Supreme Court in the said decision that where a clear plea of estoppel arises from the recital in an agreement and a party does not rely on such plea and enters into an issue on the fact so that the whole matter becomes open for the decision of the court, then the party cannot rely on the doctrine of estoppel to prevent the opponent from proving the fact. Mr. Mr. Das Gupta contended that in the instant case not only the plaintiff's failed to plead estoppel by conduct because of the said compromise decree but the plaintiffs also led evidences and entered into the issue as to whether the defendant was a tenant under the Premises Tenancy Act or a tenant under the West Bengal Nonagricultural Tenancy Act and the whole matter was open before the court for adjudication on the evidences adduced by the parties and in such circumstances in view of the aforesaid decision of the Supreme Court, the doctrine of estoppel to prevent the opponent from proving the fact was no longer available to the plaintiffs. In my view there is substance in the aforesaid contentions of Mr. Das Gupta and I am inclined to accept the same. Mr. Das Gupta also referred to another decision of the Supreme Court made in the case of Sailendra Narayan Bhanja Deo v. The State of Orissa, AIR 1956 SC 346 , The Supreme Court in that case considered the circumstances under which a consent decree will operate as estoppel by judgment. It was held by the Supreme Court in the said decision that not all statements made in the compromise petition will operate as an estoppel by judgment but the finding which was necessary to arrive at for the purpose of sustaining the judgment in the particular case will operate as estoppel by judgment. Relying on the aforesaid decisions of the Supreme .Court Mr. Das Gupta contended that it will appear from the compromise decree which was exhibited in the instant suit that the suit was instituted for eviction of the defendant from the holding but in the compromise petition there was a statement that the defendant would pay the rent of the house. Mr. Das Gupta contended that whether the defendant was a tenant under the Premises Tenancy Act or whether he was a tenant under the West Bengal Non Agricultural Tenancy Act was not an issue in the previous suit and it was not necessary to decide the nature of tenancy of the defendant in that suit and as such a bare statement in the compromise petition that the defendant agreed to pay the house rent for a particular period cannot be construed as an estoppel by judgment. Mr. Mr. Das Gupta contended that the pleadings of the parties in the said suit and the issues framed in the said suit were not before the Court and in the absence of all these materials it cannot be contended that on the basis of that lone settlement made in the compromise petition, the defendant can be pinned down on the footing that he is estopped by judgment from contending that he was not a tenant in respect of the said premises. 6. The learned Counsel appearing for the respondent in his usual fairness submitted that unfortunately the relevant materials in the previous suit had not been filed in the instant suit and in the absence of those relevant materials it cannot be contended with any amount of certitude that the issue as to whether the defendant was a tenant under the Premises Tenancy Act or a tenant under the West Bengal Non-agricultural Tenancy Act was germane in the said previous suit but from the nature of the compromise petition it can be reasonably, inferred that such question was involved in the said suit. It may however be pointed out that in the absence of specific pleading of estoppel by conduct or estoppel by judgment and in the absence of specific materials in that regard, this Court cannot proceed on the footing that the said compromise decree operated as an estoppel against the defendant as held by the Court of Appeal below. Mr. Das Gupta is justified in contending flat the question of estoppel is basically a question of fact which requires to be pleaded and to be proved and such question cannot be determined on surmises and on mere inferences. 7. Mr. Dhole, the learned Counsel appearing for the respondent however relied on a decision of this Court made in the case of Sadasukh Kabra v. Jugal Kishore Singh, 61 CWN 67. It was held in the said decision by a Division Bench of this Court that a judgment by consent is as effective an estoppel between the parties as a judgment passed on consent. A decree made on compromise so long as it stands, operates a. an estoppel and bind the parties in the same way as a contested decree and until and unless it is set aside in a proper proceeding, it remains fully alive and operative and cannot be treated as a nullity collaterally. A decree made on compromise so long as it stands, operates a. an estoppel and bind the parties in the same way as a contested decree and until and unless it is set aside in a proper proceeding, it remains fully alive and operative and cannot be treated as a nullity collaterally. Unfortunately, this decision does not help the respondents in any way in as much as it is not disputed by the learned Counsel for the appellant that a consent decree like a contested decree may also operate as estoppel. It is to be noted that estoppel by judgment or estoppel by conduct in view of a compromise decree is required to be pleaded specifically and is also required to be established by proper materials. Every statement in a compromise decree cannot operate as estoppel by judgment and only such statement or admissions in the compromise decree which in substance constituted the issues involved in the lis will operate as estoppel by judgment. It is to be remembered that in a compromise petition often many statements appear which are extraneouds or foreign to the disputes involved in the lis, and a party making such statement or admission cannot be pinned down by the plea of estoppel. Apart from this, if a clear plea of estoppel arises out of a recital in an agreement, a party intending to benefit by the plea of estoppel must rely on such plea but if he does not rely on such plea and enters into an issue on the fact appearing in the said recital and the whole matter becomes open for the decision of the court, then, the party ca n no longer rely on the doctrine of estoppel to prevent the opponent to prove the fact in question. 8. Mr. Das Gupta thereafter submitted that the finding of the court below on merits that the defendant was a tenant in respect of the suit premises is also not maintainable in view of the fact that the court of appeal below itself was not inclined to accept the uncorroborated testimony of the plaintiffs that the defendant was a tenant in respect of the suit premises and the court of appeal below specifically held that no satisfactory corroborative evidence had been given by the plaintiffs in that regard. Despite such finding, the court of appeal below wrongly proceeded on the footing that the plaintiffs paid municipal tax and rent for the land and structures and on the face of such rent receipts, the plaintiffs were entitled to the presumption that they were the owners of the structures and the defendant having failed to rebut such presumption it must be held that the defendant was a tenant in respect of the suit premises. Mr. Das Gupta in this connection drew the attention of the Court to the plaint filed in the suit. It appears from the plaint that the suit property was holding No. 43 under the English Bazar Municipality in the ward in question. But it will appear from Ext. 4D that Municipal tax receipt relating to holding No. 33 of the Municipality was filed by the plaintiffs. It will also appear from Exhibit 4E and 4F that Municipal tax receipts to holding No. 39 were filed by the plaintiffs. Excepting these receipts, no other municipal tax receipts were filed by the plaintiffs and Mr. Das Gupta contended that none of the said receipts related to the holding in question in the instant suit. Accordingly Mr. Das Gupta contended that the learned Court of Appeal below misconceived the said receipt and without .any evidence whatsover proceeded on the footing that there were rent receipts showing payment of tax to the municipality by the plaintiffs in respect of suit holding and as such the plaintiffs were entitled to presumption of ownership in respect of the suit premises. 9. In the aforesaid circumstances, I am of the view that the plaintiffs failed to establish that they were the owners of the structures in question and as such it cannot be contended that the defendant was a tenant under the Premises Tenancy Act in respect of the suit premises. In view of my aforesaid finding, it is not necessary to consider about the correctness of the decision made in respect of the application under S.17(2) of the West Bengal Premises Act which was filed by the defendant without prejudice to his rights and contentions in the suit. 10. In the circumstances, the appeal is allowed and the judgment and decree of the court of appeal below is set aside. The judgment and decree of the trial court is affirmed and the suit is dismissed. 10. In the circumstances, the appeal is allowed and the judgment and decree of the court of appeal below is set aside. The judgment and decree of the trial court is affirmed and the suit is dismissed. There will be no order as to costs in the appeal. Appeal allowed.