A. Varadarajan, J.
1. The first defendant R. S. Muthuswami Gounder, who has lost in both the Courts, below, is appellant in this second appeal. The plaintiff A. Annamalai filed the suit for a declaration of his title to the suit property and for recovering vacant possession of the same and also for a mandatory injunction directing the demolition of the superstructure put up on the property by the first defendant and for damages of Rs. 200 for use and occupation of the property by the first defendant at Rs. 100 per mensem from the middle of January, 1972.
2. The suit property is a vacant site measuring 42 feet cast to west and 136 feet north to south on the west, and 126 feet north to south on the east, in T.S No. 907/2 in Erode Municipal Town, staled to be in three plats. According to the plaint, T.S. No. 907/2 belonged to defendants 5 to 7 and some other co-sharers. Defendants 5 to 7 got for their share in the partition effected under Exhibit A-1, dated 6th May, 1967 the portion marked A, B, C, D in the plaint plan measuring 2701/2 feet east to west on the south 2251/2 feet east to west on the north, 1621/2 feet north to south on the west and 1151/2 feet north to south on the east. Those defendants 5 to 7 sold under Exhibits A-3, A-4 and A-5 all dated 19th July, 1967 three plots marked 1 to 3 to the plaintiff, the third defendant and the fourth defendant respectively. Defendants 5 to 7 sold the plot marked No. 4 in the plaint plan to the tenth defendant under Exhibit A-6, dated 20th November, 1967. They sold the plot marked No. 5 in the plaint plan to the second defendant under Exhibit A-7 dated 10th March, 1969, and on the same day they sold the plot marked No. 6 in the plaint plan to the first defendant under Exhibit A-9, and the plot marked No. 7 in the plaint plan to defendants 1 and 2 under Exhibit A-9. Defendants 1 and 2 entered into an exchange transaction under Exhibit A-10, dated 17th August, 1970, whereby the first defendant became entitled to plot marked No. 7 in the plaint plan situate immediately east of the suit property marked No 3 in the plaint plan. According to the plaint, the plaintiff was not aware until January, 1972, of any construction having been put up on the suit property. In January, 1972, when the plaintiff measured his property he discovered that the first defendant had encroached upon a portion of the suit property. The first defendant has put up a tiled roofing for putting up looms, a small room with Sara palagai facing the 40 feet east to west road and a small tiled house with 2 or 3 rooms for his residence behind that room. After the first defendant declined to comply with the plaintiff's request to remove the encroachment, the plaintiff sent the notice, Exhibit A-11, dated 2nd February, 1972, for which the first defendant sent the reply notice, Exhibit A-12, dated 15th March, 1972 with false allegations and exaggerated value of the constructions put up by him on the suit property. The plaintiff filed the suit in those circumstances for the aforesaid reliefs.
3. The first defendant alone contested the suit. His defence was that be is a bona fide purchaser for value of the property lying east of the suit property and he raised the construction on the suit property first in 1970. The plaintiff did not raise any objection until February, 1972. The first defendant has put up constructions at a cost of Rs. 25,000 under the bona fide belief that the suit property belongs to him. Nearly 21/2 years have elapsed after the construction of the buildings by the first defendant and no objection was raised by the plaintiff. The conduct of the plaintiff would clearly show that he has acquiesced in the acts of the first defendant. In those circumstances, though there may be a mistake on the part of the first defendant, the plaintiff is not justified in asking for delivery of vacant possession of the land and he would be entitled to receive only compensation at the prevailing market rate.
4. The learned Principal Subordinate Judge, Erode, who tried the suit, framed five issues and an additional issue, and appointed a Commissioner who has filed his report and plan, Exhibits C-1 and C-2. The Commissioner has located the suit site as E-J-K-L-in his plan. Exhibit C-2 He found the portion marked F-G. I-J in Exhibit C-2 to be in the enjoyment of the first defendant and the superstructure marked F-G-S-S in his plan having been constructed on a portion of the suit plot marked E-J-K-L by him-The portion marked green in his plaint is a tiled shed while the portion marked yellow in his plaint is the first defendant's tiled building The roof of the tiled sheds is of double Calicut tiles and those sheds are electrified, though according to the Commissioner, the electrification is a loose one. In the tiled building there is one store-room, one hall, one room a kitchen and a shop facing the road. There is also an open bath-room in the south-eastern corner of the tiled building with a thinnai or pial in front of that building. The tiled building is elevated from the ground level by 8 feet and contains two layers of roof, the top layer being of Calicut tiles and the lower layer being of flat tiles. This tiled building has been electrified and the electrification, according to the Commissioner, is a permanent one. The Commissioner estimated the value of the buildings put up the first defendant at Rs. 15,000. It may be stated that another shed marked green in Exhibit C-2 appears to have been put up by the first defendant partly on the suit property and partly on his own property lying immediately on the east.
5. Both the learned Principal Subordinate Judge who tried the suit and the learned District Judge Coimbatore East at Erode, who heard the appeal filed by the first defendant, found that the plaintiff has title to the suit property and that the first defendant has encroached upon the plaintiff's property. The learned Principal Subordinate Judge decreed the suit for declaration and delivery of vacant possession and also for mesne profits from the middle of January, 1972, till delivery of vacant possession after removal of the superstructure put up by the first defendant on the suit property, directing the mesne profits to be determined in separate proceedings under Order 20, Rule 12 of the Code of Civil Procedure, with costs to be paid by the first defendant. The learned District Judge confirmed the trial Court's decree and dismissed the appeal with costs.
6. The findings of the Courts below on the question of title and the encroachment on the plaintiff's property by the first defendant are questions of fact and were rightly not canvassed by the learned Counsel for the first defendant-appellant before me. The argument before me was confined to the question whether the plaintiff is entitled to recover possession of the suit property after demolition of the superstructures put up by the first defendant on the suit property, as decreed by the Courts below or only to compensation on the ground of acquiescence. The learned Counsel for both the plaintiff and the first defendant invited my attention to the evidence of defendants 1 and 2 examined as D. Ws. 1 and 2 respectively, and of the plaintiff examined as P. W. 1, in this connection. In the written statement itself the first defendant has stated that he started the construction after 17th August, 1970, and in his evidence he has stated that he ad taken about nine months to complete the construction, which would take us to May, 1971. D W. 2 has stated that the first defendant has completed the construction in 1970 and he has not been cross-examined on that portion of his evidence. The evidence of P. W. 1 is that he came to know in January, 1972, that constructions had been put up on the suit property. He has not stated in his evidence that the construction was not put up in 1970. The evidence on the whole established that the first defendant had started construction of the buildings after the date of the exchange deed, Exhibit A-10 dated 17th August, 1973, between himself and the second defendant, that it was completed in about May, 1971, and that the plaintiff, who lives in Erode itself about one mile away from the suit property, found in January, 1972, that the first Defendant had completed the constructions on the suit property. In this state of the evidence Mr. P. S. Srisailam, the learned Counsel for the appellant-first defendant, invited my attention to the decision of a Division Bench of this Court in Associated Cement Companies Limited v. Ramakrishna Gounder : AIR1965Mad318 . and to my own decision in Palanivelu v. Varadammal : (1978)1MLJ212 . which will be referred to after referring to the decisions to which Mr. N. Sivamani, the learned Counsel for the plaintiff, invited my attention.
7. Before referring to the decisions relied upon by Mr. N. Sivamani, it is necessary to state that he made a faint attempt in the course of his arguments that the arguments in the second appeal should be confined to the only substantial question of law framed by N. S. Ramaswami. J., while the learned Judge admitted this second appeal on 23rd February, 1978. That question is this:
Whether the courts below have failed to localise the various plots according to the correct measurements and also failed to localise the 70 ft. road on the western side, leading to erroneous conclusions that the first defendant has encroached upon the plaintiff's plot.
It is unfortunate that the substantial question of 1 aw framed in the Memorandum of Grounds of second appeal had not been drawn to the notice of the learned Judge. That question is this:
Whether the plaintiff, who has prayed for mandatory injunction as incidental to the relief of recovery of possession, is entitled to delivery of possession depriving the plaintiff (appears to be a mistake for the first defendant) of the superstructure constructed by him, instead of a compensation amount.
Clause (1) of Section 100 of the Code of Civil Procedure lays down that
Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
Clause (b) of that section lays down that
The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such a question.
The proviso to Clause (5) reads thus:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
In this connection, Mr N. Sivamani invited my attention to the decision in Mahindra ane Mahindra Limited v. Union of India and others : 2SCR1038 . where at pages 442 and 443 their Lordships of the Supreme Court have observed:
We have no doubt that Section 55 is an instance of legislation by incorporation and not legislation by reference. Section 5 provides for an appeal to this Court on 'one or more of the grounds specified in Section 100'. It is obvious that the legislature did not want to confer an unlimited right of appeal, but wanted to restrict it and turning to Section 100, it found that the grounds there set out were appropriate for restricting the right of appeal and hence it incorporated them in Section 55 The right of appeal was clearly intended to be limited to the grounds set out in the then existing Section 100. Those were the grounds which were before the legislature and to which the legislature could have applied its mind and it is reasonable to assume that it was with reference to those specific and known grounds that the legislature intended to restrict the right of appeal. The legislature could never have intended to limit the right of appeal to any ground or grounds which might from time to time find place in Section 100 without knowing what those grounds were. The grounds specified in Section 100 might be changed from time to time having regard to the legislative policy relating to second appeals and it is difficult to see any valid reason why the legislature should have thought it necessary that these changes should a so be reflected in Section 55 which deals with the right of appeal in a totally different context. We fail to appreciate what relevance the legislative policy in regard to second appeals has to the tight of appeal under Section 5 so that Section 55 should be inseparably linked or yoked to Section 100 and whatever changes take place in Section 100 must be automatically read into Section 55. It must be remembered that the Act is a self-contained code dealing with monopolies and restrictive trade practices and it is not possible to believe that the legislature could have made the right of appeal under such a code dependent on the vicissitudes through which a section in another statute might pass from time to time. The scope and ambit of the appeal could not have been intended to fluctuate or vary with every change in the grounds set out in Section 100. Apart from the absence of any rational justification for doing so, such an indissoluble linking of Section 55 with Section 100 could conceivably lead to a rather absurd and startling result; Take for example a situation where Section 100 might be repealed altogether by the legislature--a situation which cannot be regarded as wholly unthinkable. If the construction contended for on behalf of the respondents were accepted, Section 55 would in such a case be reduced to futility and the right of appeal would be wholly gone, because then there would be no grounds on which an appeal could lie. Could such a consequence ever, have been contemplated by the legislature? The legislature clearly intended that there should be a right of appeal, though on limited grounds, and it would be absurd to place on the language of Section 55 an interpretation which might, in a given situation, result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the section. We must, therefore, hold that on a proper interpretation the grounds specified in the then existing Section 100 were incorporated in Section 55 and the substitution of the new Section 100 did not affect or restrict the grounds as incorporated and since the present appeal admittedly raises questions of law, it is clearly maintainable under Section 55.
But it has to be noted that Mr. N. Sivamani conceded that when Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969, came up for consideration before their Lordships of the Supreme Court the present proviso to Clause (5) of Section 100 of the Civil Procedure Code, was not these in the Code. I am satisfied that the question whether the plaintiff is entitled to delivery of vacant possession of the suit property after removal of the superstructures put up on it by the first defendant by a mandatory injunction or in equity he would be entitled only to compensation for the suit property in lieu of his right to recover possession of the property, is a substantial question of law and that the learned Counsel for the plaintiff and the first defendant should be beard on that question, and that it is not possible, under the circumstances of the case, to confine the arguments to the substantial question of law flamed by N. S. Ramaswami, J., while admitting the second appeal.
8. Mr. N. Sivamani invited my attention to certain passages occurring, at pages 1050, 1051, 1053 and 1054 of Volume II of 'Sarkar on Evidence', Eleventh Edition. At page 1050 the observations of Lord Campbell in cairncross v. Lorimer 3 LT130. are extracted, and they are:
Generally speaking if a party having an interest to prevent an act being done has full notice of its being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it bad been done by his previous license.
At page 1051 the observation of Cottenham, L. C. in Duke of Leeds v. Azherst (1846) 78 B. B. 47. is extracted and it is this:
If a party having a right, stands by and sees another dealing with the properly in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence.
The following passages also are found at page 1051:
In order to constitute acquiescence not only (1) full knowledge of one's right is required, but (2) there must be some lying by him to the detriment of the other side. For it is elementary that there can be no acquiescence without full knowledge both of the right infringed and of the acts which constitute the infringement............ Acquiescence implies that a person who is said to have acquiesced did so with knowledge of his rights and the other person acted in the bona fide belief that he was acting within his rights. The absence of either of those elements makes the doctrine inapplicable. Acquiescence does not simply mean standing by. It does not mean quiescence only. It means assent after the party has come to know of his right........ There is a distinction between acquiescence occurring while the act is in progress, and acquiescence taking place after the act has been completed. In the former case the acquiescence is acquiesence under such circumstances as that assent may be reasonably inferred from it In the latter case when the act is completed without any knowledge or without any assent of the person whose right is infringed, the matter is to be considered on very different legal considerations.
At page 1053 we find the following passage:
It is of the essence of acquiescence that the party acquiescing should be aware of and by words and conduct should represent that he assents to what is violation of his rights and that the person to whom such representation is made should be ignorant of the other party's rights and should have been deluded by the representation into thinking that his wrongful action was assented to by the other party.
We also find the following passage at page 1053:
The laws as to equitable estoppel by acquiescence has been very clearly stated by Fry, J., in Wilmott v. Barber (1880) 15 Ch D 96.
It has been said that the acquiescence which will deprive a man of his legal rights 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 those rights What, then, are the elements or requisites necessary to constitute fraud of that description?
In the first place, the plaintiff (i. e., the party pleading acquiescence) must have made a mistake as to his legal rights;
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 the 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. It he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is found upon conduct with a knowledge of your legal rights;
Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. 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 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.
The learned commentator has added at page 1053 that in order that the rule may apply all the above conditions must exist.
9. Mr. N. Sivamani invited my attention to the following passage occurring at page 1034:
Mere non-interference is not enough. Acquiescence with full notice in act prejudicial to one's self so as to induce reasonable belief of his consent, followed by consequent alteration of other's position is necessary.................................. Where knowledge on the part of the person to be estopped is not proved, the doctrine of acquiescence doss not apply . .. .
He also invited my attention to the following passage occurring at page 4984 of Field's 'Law of Evidence', 10th Edition, 1972:
Acquiescence does not simply mean standing by. It does not mean acquiescence only. It means assent, after the party has come to know of his right.
The learned Counsel argued that knowledge on the part of the person to be estopped is necessary and that he should have come to know about the encroachment by way of construction while the construction was in progress for the principle of acquiescence being applied against him, and that there would be no acquiescence if he came to know of the construction after the completion of the construction.
10. The first of the decisions relied upon by Mr. N. Sivamani is of a Full Bench of this Court in K. S. R. Ramanathan Chetty and three others v. Ranganathan Chetty and two Ors. (1917) 33 M.L. J. 252 : : (1917)33MLJ252 : 6 LW 300 : ILR 40 Mad 1134. In that case the plaintiff and the defendant exchanged adjacent plots of land each worth more than Rs. 100 by means of an unregistered deed dated 4th March, 1908, both believing that they had effected a valid transfer. Possession had been taken by each party and the defendant began to erect a very costly building placing a wall thereof in the land he had acquired by the exchange. While the building was in progress, the plaintiff demanded and obtained a sum of Rs. 521 from the defendant on the ground that the plot he parted with was found to be more in extent that the defendant's. After the completion of the buildings the plaintiff brought the suit in 1911 for recovery of his plot after removal of the defendant's building which had been put upon it. The defendant pleaded inter alia that he had acquired a valid title to the plot, that the plaintiff was estopped by his conduct from recovering the plot and that if the plaintiff was to get a decree he must pay compensation as a condition for recovery. The majority held, Abdur Rahim, J, dissenting, that the plaintiff was not estopped but was entitled to recover his plot owing to the absence of a registered deed of exchange as required by Sections 54 and 118 of the Transfer of Property Act and that he must pay sufficient compensation before recovery under Section 51 of the Transfer of Property Act. In my opinion this decision will not apply to the facts of the present case where there had been no invalid exchange between the plaintiff and the first defendant, whereas in that case the plaintiff relied upon an invalid exchange deed and proceeded to construction on the plot under the impression that the plot exclusively belonged to him.
11. The next decision relied upon by Mr. N. Sivamani is of Kaushalendra Rao, J, in Bakharia Dhuria v. Manak Gangaram AIR 1954 Nagpur 97. where the learned Judge has held that acquiescence is a matter of legal inference from the facts established in a case and mere inactivity of the person concerned for a particular number of years apart from anything else in the case does not necessarily lead to the inference of aquiescence and the question of acquiescence cannot be reduced to a rule of thumb.
12. The third decision relied upon by Mr. N. Sivamani is of a Bench of the Patna High Court in Dr. Abdul Khair v. Miss Sheilla Myrtle James and another AIR 1937 Patna 308. The learned Counsel invited my attention to headnore (b) which is this:
Generally speaking if a party having an interest to prevent an act being done, has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous licence. An estoppel does not itself give a cause of action; it prevents a person from denying a certain state of affairs .... The plaintiff and defendants were neighbouring plot owners, la constructing their house the defendants made encroachment on plaintiff's land. None of the parties knew their respective rights in regard to the encroached land, and both were labouring under some sort of mistake about their respective right in the said land. Only when the defendants' construction had progressed for several months, and when a boundary dispute cropped up between the parties, and when the plaintiff measured the land that he learnt that the portion on which the defendants were constructing the building belonged to him, and immediately thereafter be brought a suit for possession.
in that case it has been held that no building quity has arisen in favour of the defendants, nor any equitable rights have sprung up in their favour, which can prevent the plaintiff, in the circumstances of the cape, to claim possession by demolition of the building on the encroached portion of his land.
13. The fourth decision relied upon by Mr. N Sivamani is of Kanhaiya Singh, J., in Sarjug Devi and others v. Dulbin Kishori Kuer and Ors. : AIR1960Pat474 . The learned Counsel invited my attention to headnote (d) which reads thus:
Where a person (who purchases land from person having no title to it) in possession of land, not in mistaken belief of his rights but in assertion of his rights which he correctly believed to be his, builds structures on the land and the person who is entitled to possession knows of this, the latter is not estopped by acquiescence from bringing a suit for possession when the person in possession, had he exercised care and diligence expected of a man of ordinary prudence, would have easily discovered where the true title lay.
The next decision relied upon by Mr. N. Sivamani is of Ismail, J., as he then was, in Bodi Reddy v, Appu Goundan : (1970)2MLJ577 . where the learned Judge had dealt with two appeals. In one case the construction was after the Revenue Authorities came and measured the property of the parties and made known the limits of their respective properties. In those circumstances it could not be held that the defendant put up the construction on the plaintiff's property under the bona fine belief that he was doing so on his own property, and the learned Judge has held that the principle of acquiescence is not applicable to the facts of that case. In the other appeal the construction by the Panchayat was in the year 1957 and the suit for recovering vacant possession of the land was filed in 1962. The Panchayat had constructed a public latrine on a portion of the plaintiff's property and consequently the other portion of the plaintiff's property, which was a house site, became absolutely useless, In those circumstances the learned Judge held that the principle could not be made applicable to the facts of that case. This decision, in my opinion, would not apply to the facts of the present case.
14. The last decision relied upon by Mr. N Sivamani is of V, Ramaswami, J., (Balaiyah Nadar and others v. Dhanabackiathammal and Anr.) S.A. No. 729 of 1971. where the learned Judge has observed that merely because the plaintiffs asked for a mandatory injunction and were also guilty of laches in not filing the suit or allowing the defendants to put up the superstructure, the plaintiffs could not be said to have disentitled themselves from getting possession of the property, and that in view of the findings of the Courts below that the plaintiffs had not objected to the construction, that fact may entitle the defendants to remove the superstructure, but the defendants are not entitled to any right of purchase of the suit land on the ground that the plaintiffs were guilty of laches in not objecting to the construction even at the time of the construction. The learned Judge has further observed that so long as the suit is not barred by limitation and the defendants have not prescribed title to the property, the plaintiff's right is not taken away and that a similar view was also taken by this Court after an elaborate consideration of the law on the point in the decision in Bodi Reddy v. Appu Goundan : (1970)2MLJ577 . already referred to.
15. In the decision of a Bench of this Court in The Associated Cement Companies Limited v. L. S. Ramakrishna Gowder : AIR1965Mad318 . referred to above, a decision of Veeraswami, J., as he then was, came up for consideration in Letters Patent Appeal No, 12 of 1963. The learned single Judge, while affirming the 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, and he accepted the finding of the lower appellate Court that the appellants could, if they had cared, have found out in time when the respondent was trying to encroach upon their property and when they had permitted the latter to complete his construction, it was evident that they were acquiescing m the act of the respondent, and he, therefore, considered that this was not a case for directing delivery of possession but it was a case where the plaintiffs should be compensated in money in substitution of the relief of recovery of possession of the property. In view of the fact that a Bench of this Court has affirmed the decision of Veeraswami, J., as he than was in the said second appeal that the appellants could, if they had cared, have found out in time that the respondent was trying to encroach upon their property and when they permitted the latter to complete his construction in was evident that they were acquisescing in the act of the respondent and they were, therefore, mot entitled to delivery of possession but were entitled only to compensation in lieu of possession of the property, it is not possible to accept the view of either the Division Banch of the Patna High Court in Dr Abdul Khair v. Miss Sheilla Myrtle James and Anr. : AIR1957Pat308 . or of the single Judge of that Court in Sarjug Devi and Ors. v. Dulhin Kishori Kuer and others : AIR1960Pat474 . or of Ismail, J., as he then was in Bodi Reddy v. Appu Goundhan : (1970)2MLJ577 . or of V. Ramaswami, J, in the aforesaid decision in Balaiyah Nadar and Ors. v. Dhanabackiathammal and Ors. S.A. No. 729 of 1971.
16. I had occasion to consider the question of acquiescence in S. Palanivelu v. K. Varadammal : AIR1977Mad342 . mentioned above. There was evidence in that case to show cause that the defendant put up a portion of the main building and a major portion of the well and had done other acts in the trespassed portion of the suit property under the bona fide belief that the portion of the property was part of R. S. No. 3173/12, of which he was an allottee under Nammalwarpet Cooperative Housing Site Society. There I have extracted the observation of the Division Bench in the aforesaid decision in The Associated Cement Companies Limited v. L. S. Ramakrishna Gowder : AIR1965Mad318 . namely:
The respondents did not perhaps know at that time that he was trespassing upon Government property. There was every reason for it. Nearly five years after the buildings were pus 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 injunction directing him to remove the superstructure put up thereon. Both the Courts below found that the appellant had title to the property and they accordingly passed a decree for possession. The learned appellate Judge, however, realised that the appellant could have discovered the encroachment even at the time of construction of the building by the respondent. But be was of the view that having regard to the nature of the land and the circumstances under which the encroachment was noticed, the appellant could not be held to have acquiesced in the action of the lower 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 appellants the respondents 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. Notwithstanding 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 second appeal to this Court. Veeraswami, J., while affirming the 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 appellants could, if they had cared, have found out in time that the respondent was trying to encroach upon their property and when they permitted the latter to complete the construction, it was evident that they 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 injunction, 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.
It will be clear from what we have stated above, that although an owner of property will have 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 when the owner is precluded by any conduct on his part from 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.
In the case which came up for consideration before me, the respondent-plaintiff had not done anything when the appellant-defendant was putting up a portion of his main building on a portion of the trespassed property and sinking a major portion of the well and doing other acts on the trespassed property and it was found that the appellant-defendant could not have done those things in a hurry and they must have taken several months for the appellant to complete the things which he had done on the property. The plaintiff-respondent bad not disclosed those things in the plaint and had not prayed for a mandatory injunction for the removal of the structures put up by the defendant on the trespassed portion of the property. In those circumstances I held that the Court would be justified in inferring acquiecence on the part of the respondent and considered that it was not a case for directing delivery of possession of the trespassed portion but it was a case where the respondent-plaintiff had to be compensated in money for the value of the trespassed portion, and I called for a finding from the lower appellate Court as regards the market value of the trespassed portion. I am bound by the decision of the Division Bench of this Court rendered in the aforesaid The Associated Cement Companies. Limited v. L. S. Ramakrishna Gowder : AIR1965Mad318 . and following that decision and my own view expressed in S. Palanivelu v. K. Veradammal : (1978)1MLJ212 . I hold that the plaintiff, who resides about a mile away from the suit property, would have come to know about the defendant putting up constructions on a major potion of the suit property if he had cared to find out and since he has not done so and kept quiet until the first defendant had completed his constructions which have been valued by the Commissioner at Rs. 15,000 and had sent the notice only about 7 or 8 months later after January, 1972, asserting his right to the suit property, I am of the opinion that the principle of acquiescence has to be made applicable to the facts of the present case and that the plaintiff has to be given only a decree for compensation in respect of the property, namely the market value of the suit property in lieu of the relief of recovery of vacant possession of the property. For want of evidence, a finding has to be called for from the lower appellate Court regarding the market value of the suit property as on the date of the suit. The lower appellate Court will submit its finding within two months from the date of receipt of the records. The parties are at liberty to adduce fresh evidence regarding the market value of the suit property. They will have two weeks' time to file their objections after the finding is received in this Court.