Karamat Hussain, J.
1. The suit out of which this appeal has arisen was brought by the zamindar against his tenants for the recovery of possession of a plot of land and the demolition of the building erected thereon. The defence with which I am concerned in this appeal was that as the house was built with, the knowledge of the plaintiff's karinda, who never prevented the defendants from building, and as the defendants spent about Rs. 300 thereon, the plaintiff was not entitled to recover possession of the site and to have the building pulled down.
2. The Court of first instance dismissed the suit. The lower appellate Court affirmed the decree, finding that the house was built with the acquiescence of the local representative of the plaintiff. The plaintiff preferred a second appeal to this Court. As no issue was framed by the Court of first instance on the plea of equitable estoppel and no finding recorded thereon, I referred the following issue to the lower appellate Court for trial under Section 566 of the Code of Civil Procedure: Did the agent of the plaintiff acquiesce in the construction of the house in dispute? The finding returned by the lower appellate Court is: 'I think the house was erected with the knowledge of the plaintiff's agent and that no active steps were taken to prevent it and the building must be taken to have been acquiesced in.'
3. An objection to this finding has been taken on behalf of the appellant. It, is that a forbearance to interfere does not amount to an acquiescence. In order to constitute acquiescence and to raise the plea of equitable estoppel an abstinence from interference is not enough. In addition to this there must also be a mistaken belief in the builder that the land upon which he was building was his own property. See Beni Ram v. Kundan Lal 21 A. 496 (P.C.) Naunihal Bhagat v. Rameshar Bhagat 16 A. 328 Raj Narain Mitter v. Budh Sen 27 A. 338 and Budh Singh v. Parbati 29 A. 652. In the present case the defendants are tenants and according to the common law of these Provinces the zamindar as a rule is the owner of the land in the village [See Chajju Singh v. Kanhia (1881) 1 A.W.N. 114 and Sri Girdhariji Maharaj v. Chote Lal 20 A. 248], and there is nothing on the record to show that the defendants built under the mistaken belief that the land on which they were building was their own. The plaintiff is, therefore, not estopped from claiming the relief he seeks.
4. The learned advocate for the respondent in answer to this objection contends that the cases cited by the learned vakil for the appellant are not applicable to the present case. He argues that where a tenant builds upon the land of his zamindar under the mistaken belief that he has the zamindar's permission to build and the agent of the zamindar stands by and does not prevent him from building, the zamindar is estopped from claiming the possession of the land and from having the building pulled. In support of this proposition he relies on the following passages quoted from Ramsden v. Dyson (1865) I.R.I.E. and I.A. 129 in Beni Ram v. Kundan Lal 21 A. 496 (P.C.): It was strongly argued for the defendants at the Bar of the house that Sir J. Ramsden had made representations which might fairly be supposed to lead his tenants-at-will or from year to year to expend money in building in the belief that by building they acquired a title which he could never disturb.' 1 do not find that the noble and learned Lord indicated any opinion that if such representations had actually been made by the lessor they would not have been sufficient to show the terms of a contract which might be enforced in a Court of Equity. But he rejected the plea on the double ground (1) that the alleged communications were not proved to have been sufficient for that purpose, and (2) that the representations, if they had been sufficient to raise an implied contract, were not binding upon the lessor, inasmuch as they proceeded from an estate agent and were not shown to have been made by him in the knowledge and with the authority of the lessor. He also relies on the judgment of Aikman, J., in Raj Narain Mitter v. Budh Sen 27 A. 338 and on Uda Begam v. Imamuddin 1 A. 82f The case set up by the learned advocate is entirely new and cannot be allowed to be put forward at this stage of the litigation. The plea in defence, as the written statement shows, was that the house was built with the knowledge of the plaintiff's agent; that the agent did not prevent the defendants from building and that the defendants spent about Rs. 300 on the house. Such a case, in my opinion, is governed by the authority of Beni Ram v. Kundan Lal 21 A. 496 (P.C.).
5. Their Lordships, in that case remark: 'The rule or principle thus adopted by the Sub. ordinate Judge which is reported to have been laid down in Gopi v. Bisheshar (1885) 5 A.W.N. 100 is thus stated by him: 'If a man permits another to build upon his land and with the knowledge that the building is being erected stands by and does not prevent the other from doing so, then no doubt equity comes in, and by the rules of equity, which in this respect are the same as the rules of law, he cannot eject that other person'. The case was carried by the present appellant before the second appellate tribunal, the High Court at Allahabad, who on the 26th January 1894, confirmed the decision of the Subordinate Judge of Aligarh and dismissed the appeal with costs. The learned Judges of the High Court, without entering into any discussion of the other issue which the first appellate Court decided in favour of the present appellant, said: 'We need not go further into the construction that should be placed upon that lease, because we are of opinion that upon the finding of acquiescence, which we think was a right finding in this case, the appeal will have to be dismissed.' They accordingly disposed of the appeal on that ground alone. It is to be regretted that the loose and inadequate statement of the rule of equity which is reported in Gopi v. Bisheshar (1885) 5 A.W.N. 100 should have been accepted apparently without much consideration, by the learned Judges of both appellate Courts. The proposition, if it were carefully supplemented, might possibly be made to apply to the case where the owner of the land sees another person erecting buildings upon it and knowing that such other person is under the mistaken belief that the land is his own property, purposely abstains from interference with the view of claiming the building when it is erected. The findings of fact pronounced by the Subordinate Judge, which were conclusive in the second appellate Court and are equally binding upon this board, show that the present is not a case of that kind. The respondents knew that the predecessors of the appellants were the owners of the land let, and that their own title was limited to their occupation of the land as tenants upon the terms and for the period provided by the original lease of 1858. In order to raise the equitable estoppel which was enforced against the appellants by both the appellate Courts below it was incumbent upon the respondents to show that the conduct of the owner whether consisting in abstinence from interfering or in active intervention was sufficient to justify the legal interference that they had by plain implication contracted that the right of tenancy under which the lessees originally obtained possession of the land should be changed into a perpetual right of occupation.' The above remarks conclusively show that where one person builds upon the land of another an abstinence by the owner will not be sufficient to raise the equitable estoppel against him. In addition to the abstinence on his part there must be a mistaken belief in the builder that the land was his own. In face of such a clear exposition of law on the subject by their Lordships of the Privy Council I am unable to hold that the passage quoted from the same judgment by the learned advocate for the respondent supports his contention.
6. Regarding the judgment of Aikman, J., in Raj Narain Mitter v. Budh Sen 27 A. 338, it is enough to say that in that case the finding was that the defendant Budh Sen believed that he had acquired a good title to the house and that acting on his belief he expended a large sum of money variously put at anything from Rs. 6,000 to Rs. 10,000. In the present case there is no finding that the defendants believed they had a right to build and that acting on this belief they spent about Rs. 300 over the house, nor was any such finding on the pleadings of the parties called for. Uda Begam v. Imamuddin 1 A. 82, is also of no help to the respondent. It rightly lays down that where a defendant took possession of and erected building on the land which he knew belonged to the plaintiff without applying to him for consent, the abstinence of the plaintiff, who knew that the defendant was building on her land, did not deprive the plaintiff of her right to have the defendant ejected and to have the materials removed. The contention on behalf of the plaintiff appellant before the High Court was that 'her consent ought not to be inferred merely from her inaction,' and the learned Judges who heard the appeal gave effect to it.
7. The result is that I allow the appeal, set aside the decrees of the Courts below, and decree the plaintiff's claim with costs.