S. Ramachandra Iyer, C.J.
(1) The appellant secured from the Government a considerable extent of vacant land measuring about 420 acres in Madukkarai village in Coimbatore District under a lease for mining purposes. In that area there were several survey numbers, of which we are concerned for the present only with S. No. 950/1 measuring an extent of 60 acres. Just South of it, is S. No. 961/5. In the first instance the term of the lease was 30 years from the year 1934 but this period has not been extended by a further period of 20 years. The respondent purchased one acre from out of S. No. 961/5 from its owner sometime during the year 1950. The respondent had to store Chinese crackers in which he had business and for that purpose he built on the land in the year 1950 a magazine, watchman's quarters, etc. The work was commenced that year and was completed in the following year, the respondent having spent nearly Rs. 17000. It is stated that the building put up would not be worth twice the amount spent. It is found that by putting up the buildings he had occupied an extent of 79 cents of land in S. No. 950/1 which is Government's property and in respect of which a mining lease in favour of the appellant subsists. The respondent did not perhaps know at that time that he was trespassing upon Government property. There was every reason for it.
The land covered by S. No. 950/1 was fenced and there were boundary stones planted. Both the fence and the boundary stones were outside the limits within which the building was put up. Nearly give years after the buildings were put up, the appellant sent a notice to the respondent complaining that in putting up the buildings the latter had trespassed into a portion of the property leased out to them by the Government. The respondent contested the title of the appellant to that extent of property. The former then instituted a suit out of which this appeal arises in 1958 for recovery of possession of 79 cents of land which had been occupied by the respondent and for a mandatory injection directing him to remove the superstructures put up thereon. Both the courts below found that he appellant had title to the property and they accordingly passed a decree for possession. The learned appellant judge however realised that the appellant could have discovered the encroachment the respondent. But he was of the view that having regard to the nature of the land and the circumstances under which the encroachment was noticed in the action of the defendant in putting up the buildings. One can easily see from the judgment of the lower appellate court that but for the indifferent attitude adopted by the appellant the respondent could not have been encouraged to put up the buildings.
It is not pretended that the appellant was not aware of the buildings coming up. Not withstanding the view expressed by the appellate judge, one can easily see that there must have been some kind of acquiescence on the part of the appellant while the respondent was putting up his buildings. The respondent feeling aggrieved by the judgment of the lower appellate court filed a second appeal title of the appellant to 79 cents of land held that in the circumstances, it would be unjust to pass a decree for possession of the property. The learned Judge accepted the finding of the lower court that the appellant could, if they had cared, have found out in time that the respondent was trying to encroach upon their property and then they permitted the latter to complete their construction, it was evident that here were acquiescing in the act of the respondent. He, therefore, considered that this was not a case for directing delivery of possession. Inasmuch as there was a prayer in the plaint for the grant of equitable relief by way of mandatory injection, the learned Judge held that it would be competent for the court to substitute in the place of the relief sought, a decree for compensation. In the view the suit was remanded to the lower court for the limited purpose of passing a decree for compensation.
(2) The appellant has now filed this appeal against the judgment of the learned Judge. We are with respect unable to sustain his judgment on the precise ground on which it has been rested. It is no doubt true that but for the conduct of the appellant the respondent would not have incurred expenses by putting up the superstructure. But even so if there be no question of estoppel, the appellant would be entitled to recover possession of their property over which according to the con-current finding of both the courts below, there has been trespass b the respondent.
Mr. V. Thiagarajan appearing for the respondent, however, sought to support the judgment of the learned Judge by inviting our attention to the decision in Somasundaram Chetti v. Ramiah, 22 MLJ 62. That case was concerned with a decree for injunction and it was held that injunction need not necessarily be granted against a trespasser under all circumstances; in granting such a discretionary relief the court could mould the relief in accordance with the justice of the case. The case before us is not one simpliciter for nay injunction; is one for recovery of possession by the owner against the trespasser. However, it is argues on the authority of Jaladurga Prasadarayudu v. Ladooram Sowcar : AIR1936Mad687 that even in such cases monetary compensation could be given in lien if possession. In that case Wadsworth J. held that where the issue of mandatory injunction, would involve the removal of a completed structure, which so long as it stood entailed no inconvenience to the plaintiff but amounted only to a slight invasion of his rights and where such invasion was not committed want-only or after protest, pecuniary compensation would be the more appropriate remedy. The learned Judge at the same time pointed out that that principle could not be pushed to the extent of allowing practically a compulsory acquisition of a considerable strip of land under the guise of equity by directing payment of monetary compensation.
That case formed the subject-matter of an appeal in Ladooram Sowcar v. Durgaprasadarayudu : AIR1938Mad463 . The learned Judges on appeal did not accept in any unqualified manner the former part of the conclusion reached by Wadsworth J. It was held that the proper thing to do wherever land has been trespassed upon would be to give possession of the property and not merely damages. That would undoubtedly be the rule to be adopted if the matter were simple i.e., where the party who seeks eviction by removal of the building put by the one upon the land of the former, is not precluded by some other principle of law from obtaining the relief as to possession. But there maybe cases where the defendant's trespass is slight and there was conduct on the part of the plaintiff precluding him form asserting his title.
(3) In the leading case Ramsden v. Lee Dyson (1866) 1 HL 129 Lord Kingsdown observed:
'The rule of law applicable to the case appears to me to be this: if a man under a verbal agreement with a landlord for a certain interest in land or what amounts to the same thing, under an expectation, created or encouraged by the landlord that he shall have a certain interest, take possession of such land, with the consent of the land and upon the faith of such promise or expectation with the knowledge of the landlord and without objection by him lays out money upon the land a court of equity will compel the landlord to give effect to such promise or expectation'. In Beniram v. Kundanlal, ILR 21 ALL 496 a question arose whether a landlord would be entitled to a building erected by a tenancy after his term of lease had expired. The Privy Council recognised that while the landlord would not be precluded by any rule of equity form recovering possession of the land after the expiry of the tenancy even when the tenant had put up permanent structures on the land, an equitable estoppel, could still in certain circumstances arise preventing him from so doing. Such, a case will arise where the tenant was able to show facts sufficient to justify the legal inference that the lessor had by plain implication contracted that the right of tenancy should be changed into a right of permanent occupancy. It was also held that acquiescence by the lessor would be a legal inference to be drawn from facts proved a it would not be a mere finding fact.
(4) The onus of establishing sufficient cause for an equitable estoppel would no doubt be on the tenant. The decision in Canadian Pacific Railway Co. v. King 61 MLJ 958: is more instructive. That was a case where a person had built on the land which he though was his, while it was really that of another who knowing that the former was committing a mistake encouraged him to build either directly or by abstaining from asserting his legal right. In such a case it was held that equity will intervene for the protection of the person who built on the land. This decision, in our opinion, will directly apply to the present case. The Privy Council in the case cited above referred to the illustration given in (1866) 1 HL 129 where Lord Granworth instanced a case 'where A builds on land which he thinks is his but is really B's and B knowing his mistake encourages A to build either directly or by abstaining from asserting his legal right. In such a case equity will intervene for the protection of A'. Referring to his equitable doctrine Lord Russel stated ' 'It is a doctrine which is sometimes alluded to under the name of equitable estoppel. Whether there can be any estoppel which is equitable is distinct from legal and whether equitable estoppel is an accurate phrase, their Lordships do not pause to enquire. The foundation upon which reposes the right of equity to intervene, is either contract or the existence of some fact which the legal owner is estopped from denying. Thus in the case put, B's conduct is such that from it may be inferred a contract by B that the land is A's upon the faith which A has acted and built'. That test has undoubtedly been satisfied in this case.
(5) We may in this connection refer to the judgment of Govinda Menon J. in Venkatasami Naidu v. Muniappa Mudaliar, : AIR1950Mad53 where it was held hat where a person bona fide thinking himself to be the owner of the land spent money upon it while the true owner was standing and allowed him to spend money for the improvements, upon his land, the later would be estopped form asserting his title to the land as against the person bona fide believing the property to be his an was making improvements. It will be clear form what we have stated above that although a owner of a property will have stated above that although a owner of a property will have the undoubted right to recover possession of it from a trespasser albeit that the latter had put up a construction upon it an exception does exist to such a rule where the owner is precluded by any conduct on his part form claiming possession. That is not really denying the owner his right to recover possession from the trespasser; but a rule of estoppel which prevents the owner from claiming the property to be his so far as the other side is concerned.
This principle is different from the one recognised in : AIR1938Mad463 , where there was no question of estoppel. We are, therefore, of the opinion that the conclusion reached by the learned Judge that the appellant would not be entitled to recover possession of 79 cents of land is correct. Once it is held that the appellants are generally estopped from recovering possession of the property from the respondent, it must follow that they would both be entitled to recover any damages for the portion of the land occupied by the respondent. The learned Judge, has, however, directed remand of the case for the purpose of ascertaining compensation payable to the appellant by the respondent. We are unable to see on what ground that direction can be justified. But the respondent has not complained against the order by filing any cross appeal memorandum of cross objections. Under the circumstances we leave the direction of the learned judge as it stands. Before concluding we wish to make it clear that the estoppel by which the appellant is precluded from recovering possession of the property from the respondent is purely a personal one. It will not affect the Government, when they ultimately resume possession of the property on the termination of the lease in favour of the appellant after the superstructure is removed. The appeal fails and is dismissed with costs.
6. Appeal dismissed.