1. This is a plaintiffs' appeal arising out of suit brought by certain zamindars for recovery of proprietary possession over two plots of land. The plaintiffs' case was that the defendants made some constructions without their information and permission on the larger plot, and that subsequently they built another house on the smaller plot. The defence raised by the contesting defendants was that with regard to the larger house their old house which stood on the site and had been of thirty years' standing fell down some years before the suit and the defendants repaired it on the old eight foundation. They denied the plaintiffs' allegation that it was built only a short time before the suit. As to the smaller house, their plea was that there was a thatched house on this site in which the defendants used to keep their chaff and tied their bullocks and buff aloes and which they, with the permission of the plaintiffs, converted into a tiled house some two years before the suit. The Court of first instance decreed the claim with regard to the smaller house, and that decree has been affirmed on appeal by the lower appellate Court, and the smaller house is not in dispute before me. The first Court, however dismissed the claim with regard to the larger house and that decree has been affirmed on appeal. The finding of the first Court was that the larger house was not an old one, that it had been built recently, and that the permission of the zamindar had not been established. It however held that plaintiffs were estopped from seeking to demolish it. Its findings were that it was difficult to believe that the plaintiffs had not heard of the constructions as they professed. The Court thought that the plaintiffs had more than several opportunities to hear of the constructions, and that they failed to get the news because they did not care to get it or because their karindas wilfully concealed it from them. Under those circumstances it held that the plaintiffs were estopped from seeking its demolition.
2. The learned District Judge has written a judgment which indicates a vacillating frame of mind. Having referred to the decree of the first Court he remarks; 'I have been taken over the evidence in detail and so far as the main facts are concerned I entirely agree with the lower Court.' He then disposes of the defendants' appeal with regard to the smaller house. Dealing with the dispute as regards the larger house the learned Judge says that he was quite satisfied that it was built on waste land less than two years ago and without permission. In the earlier portion of his judgment he had remarked that when the two houses could not be over two years old or perhaps less it knocked the defence theory and evidence on the head as to the bigger house having been built nine years ago, and with it must go the evidence as to payment of nazrana and permission as to the smaller house. Having recorded the finding that there was no permission, he went on to suggest that some nazarana might have been paid for the corner house Ex. G. which was not in dispute, and that it may be that the defendants have been more grasping and have extended their house still further. Later on, however, he remarked: 'I am not prepared to entirely ignore the defence story as to payment of nazrana, 'though on the evidence as to the time it is said to have been made it would be difficult to act upon the defence evidence.' 'When he rejected the defence evidence as to the payment of nazrana it is impossible to think that he has accepted the fact as proved. In any case that remark must apply to some nazrana paid in respect of the house Ex. G.
3. The real ground on which ha has dismissed this claim is, as he puts it, his discretionary powers on equitable grounds, the reasons being (1) possible injury or loss to either side, (2) clear indication that for five or six months the house was under construction, and admittedly not a linger was raised, and (3) the possibility that after all there may be some truth in the defence story though the evidence must be rejected.
4. When the learned Judge rejected the defence evidence, his third reason is futile and must be ignored. The substantial ground on which the claim has been dismissed is that of estoppel, namely, that the house was allowed to be built without remonstrance, though the construction took from five to six months.
5. The main question which I have to decide is whether, if a raiyat without the permission of the zamindar begins to build upon waste land over which he has no right to build and completes his construction within a few months, the zamindar is estopped from recovering possession of the site on the ground that he did not intervene at an earlier stage. In the present case the judgment of the First Court suggests that the zamindars do not even live in the village and they have been held, responsible for the omission of their pairokars to report the news to them and their failure to intervene at an earlier stage. If the defendants had no right to build on the land of the zamindars no principle of estoppel will come in which would prevent the zamindars from recovering possession of the site by demolition of these constructions. If the buildings had been allowed to remain on for a sufficiently long interval to justify an inference that; there had been acquiescence on the part of the zemindar, their suit might have been dismissed. This however is not what the learned Judge has found. The dismissal is not based on any subsequent acquiescence, but is based on the failure to intervene during the course of the construction. On this point I am of opinion that unless it could be established that the defendants were making constructions under some bona fide mistake of which the plaintiffs were aware and in spite of their knowledge the plaintiffs deliberately refrained from intervening and thereby led the defendants to believe that they were right in their estimation, there could be no estoppel. This was clearly pointed out by their Lordships of the Privy Council in the case of Beni Ram, v. Kundan Lal  21 All. 496. I may also refer to the case of Ganga Din Sonar v. Jagat Tiwari AIR 1914 All. 89 where it was laid down that no one can by merely trespassing upon the land of another and constructing costly building on it claim a right to retain possession or to compel the owner to receive compensation for the land. An earlier case namely, Fatehyab Khan v. Muhammad Yusuf  9 All. 434 is also in point. 'Where the plaintiffs are suing for recovery of proprietary possession of land over which the defendants have taken possession by building a house, there is no discretion in the Court to refuse to grant the relief. On the facts found by the Court below, namely, that the house built by the defendants is a recent one, that it was built on waste land over which they had no right to build, and that it was built without the permission of the zamindar the suit ought to have been decreed. I accordingly allow this appeal with costs and modifying the decree of the Court below decree the claim in respect of both the houses as against the contesting Defendants Nos. 5 and 6. As the Defendants Nos. 1 to 4 pleaded that they had no concern with these constructions, and they never seriously opposed the claim, they would not be made liable to pay costs.
6. The defendants would he at liberty to remove the materials within three months from this date. In case they fail to do so, the plaintiffs would be entitled to recover possession of the site and the buildings as well.