1. This case has been argued at length before us and we are asked to interfere with the judgment of the Judge of this Court on the ground that he ought not to have decreed demolition of a certain structure in favour of the plaintiffs.
2. The suit was a suit in ejectment the plaintiffs alleging that the defendant had trespassed on a small portion of land belonging to them and had erected a building. The suit was filed in the month of November 1918 and the allegation in the plaint was that the defendant had begun to erect the building during the Civil Court vacation which in the year 1918 lasted from the 20th of September to the 11th of October 1918.
3. The plaintiffs prayed for the ejectment of the defendant and also for the demolition of the construction just mentioned.
4. The defence was that the land in suit was the property of the defendant and not of the plaintiffs, and a further plea was taken in para. 12 of the written statement to the effect that the claim of the plaintiffs was barred on the principle of 'tacit acquiescence and waiver.'
5. The Court of first instance found that the title to this land was clearly with the plaintiffs and that the defendant had no title at all. On the other hand, when it came to deal with the question of the right of the plaintiffs to have the construction demolished, the Court of first instance refused to order demolition on the ground that the construction was already complete. In dealing with this part of the case the Munsif observed as follows:
As to the waiver the plaintiffs say that the wall, that is, the eastern portion of the southern wall of the defendant's house was built during the long vacation of the Civil Court in 1918 in spite of the plaintiff's protest. This point is not definitely proved by the plaintiffs and the wall is already built and the roof put upon it. Therefore, in these circumstances I do not think it right to order the demolition of the building itself, but instead I award the plaintiffs Rs. 100 damages for that portion of the land.
6. This judgment was maintained in appeal by the Subordinate Judge. He also refused to order demolition and gives his reasons as follows:
The appellant has built a costly structure on the land and I am not satisfied that the respondents could not have prevented the construction if they had taken action in time. They must, therefore suffer the consequences of their laches and must be content with the damages awarded to them.
7. The learned Judge of this Court who had the second appeal before him was of opinion that the lower Courts had not given any sufficient reasons for refusing an order for demolition, and after hearing the argument of counsel we think the learned Judge of this Court was quite right. The law on the subject of equitable estoppel has been expended in the case of Wilmott v. Barber (1880) 15 Ch D 96. In dealing with the subject of acquiescence, Fry, J., observed as follows at p. 105, (Ch. D.) of the report:
It has been said that the asquiencence which will deprive a man of his legal right must amount to fraud and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up these rights. What then are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal right. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land), on the faith of his mistaken belief. Thirdly, the defendant the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal right. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his right. If he does not there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it but in my judgment, nothing short of this will do,
8. Applying these principles to the case now before us it seems to us that the judgment of the learned Judge of this Court was right in finding that no case had been made out by either of the Courts below for refusing the plaintiffs demolition of the construction. It has been argued before us that the defendant-appellant was under a mistaken belief that the land in dispute belonged to him. Even assuming that to be proved the defendant would still not be entitled to succeed in this appeal; for it would be necessary for him to establish the other matters referred to in the judgment of Fry, J. From the judgment, of the Courts below, however, it does not appear to us that the defendant-appellant could have entertained any bona fide belief that he was the owner of the land in question.
9. We are of opinion that the appeal fails and we dismiss it accordingly with costs including in this Court fees on the higher scale. We order the defendant to clear the ground mentioned in para, 10(a) of the plaint of the building now upon it and this he is to do by the 4th April 1926. If by that date this order has not been completely obeyed the plaintiffs should move this Court and no other on a motion for contempt.