A. Varadarajan, J.
1. The defendant who lost in both the Courts below is the appellant. The respondent filed the suit for a declaration of her title to the portion of the land shaded blue and marked DEFG in the plaint plan and for recovery of possession thereof and also for a permanent injunction restraining the appellant from interfering with her possession and enjoyment of the remaining portion of the suit property. The entire suit property is a land measuring about 10 grounds and 1900 sq. ft. in R.S. No. 3173|14, Block No. 55, Nadavakkam tank area in Purasawalkam. The blue shaded portion marked D.E.F.G. is in the southwestern corner of R.S. No. 3173|14. The respondent is the owner of R.S. No. 3173|14, as per the settlement deed Exhibit A-1, dated 11th June, 1962, executed by her mother Adiammal. She filed the suit alleging that the appellant trespassed into the D.E.F.G. portion of the suit land measuring 5 feet east-west and 63 feet north-south on 21st April, 1968 and that he was attempting to interfere with her possession and enjoyment of the remaining portion of the suit property.
2. The appellant is the owner of the western land bearing R.S. No. 3173| 12, measuring 1 ground and 30 sq. ft. allotted to him by the Nammalwarpet Co-operative Housing Site Society. The defence was that as a member of the said society he was allotted that land and he had taken possession of the same and put up a brick built construction on the land allotted to him by the Society and is in undisputed possession of the property allotted to him by the Society. He denied that he had trespassed on any portion of the respondent's land and contended that the understanding between himself and the said Society is that the latter should execute a sale deed in his favour after he completes payment of the value of the site in installments and that the Society is therefore a necessary party to the suit.
3. Both the Courts have found that there is encroachment by the appellant on a portion of land measuring 63 feet north-south and 4 feet east-west on the southern side and 4 feet on the northern side, which has been coloured in the Commissioner's plan Exhibit C-5 and that the said portion is part of R.S. No. 3175|14, belonging to the respondent. According to the Commissioner's report and plan the appellant had put up an open latrine, a major portion of which is in the coloured portion in Exhibit C-5, a portion of the appellant's main building, a portion of the platform, a major portion of a square well and a major portion of a stone used for washing clothes on the coloured portion in Exhibit C-5.
4. The trial Court declared the respondent's title to the coloured portion in Exhibit C-5 and granted a decree for delivery of vacant possession of that portion to the respondent after removal of the aforesaid superstructures within two months and also a permanent injunction restraining the appellant from interfering with the respondent's possession of the remaining portion in R.S. No. 3173|14 with costs. This decree has been confirmed by the learned Principal Judge, City Civil Court, Madras, who dismissed the appeal with costs.
5. The concurrent findings of the Courts below that the coloured portion in the Commissioner's plan Exhibit C-5 forms part of R.S. No. 3173|14, belonging to the respondent and that the appellant has trespassed on that portion of the respondent's property, are on questions of fact which cannot be gone into in this second appeal. But the question whether in view of the fact that the respondent had not taken any effective steps when the appellant had constructed a portion of his main building and a portion of the open latrine and sunk the square well and put up a portion of the platform and a major portion of the stone used for washing clothes on the coloured portion in Exhibit C-5 and had not prayed for any mandatory injunction for the removal of these structures from the portion of the property, the possession whereof has been prayed for in the suit, she would be entitled to recover vacant possession of the small strip of land after demolishing and removing the structures and closing the well or would be entitled only to the market value of the land as compensation, is a question of law that arises for consideration in this second appeal.
6. The learned Counsel for the respondent submitted at first that the question whether the respondent should not be compensated in money for the value of the land trespassed upon by the appellant should not be considered in the absence of a plea in the written statement. In that connection he relied upon a decision of Natesan, J., in Fakiruddin Sahib v. Ramaswami Mudaliar (1935) 1 M.L.J. 167, where also there was no plea in the written statement filed on behalf of the first defendant as in the present case, claiming relief in respect of improvements and equities in his favour. Natesan, J., has observed in that judgment thus-
It will be apparent from these citations that to grant relief on the basis of equitable estoppel, not only should there be pleadings, but there should be evidence on which foundation can be laid for raising the plea. As already stated, there is no plea and naturally no evidence that has been let in. The learned Subordinate Judge has gone on presumptions and has overlooked that any act of the second defendant in excess of his powers would not bind the Thaika or trust. There is no pleading and no evidence that the trustee or muthavallis as a body made any representations or by their acquiescence allowed the first defendant to incur expenditure on the property. Again a religious trust like the Thaika in the present case will not be estopped by any act or conduct of the trustees committed in breach of trust. The lower appellate Court has not considered any of these aspects. The result, therefore, is that the relief which the learned Subordinate Judge has granted cannot stand.
This decision cannot be applied to the facts of the present case where as already stated the respondent has not whispered anything in the plaint about the existence of a portion of the main building of the appellant, a large portion of the well and other structures on the portion of the suit property which had been trespassed upon by the appellant. As already stated, the respondent has not prayed for any mandatory injunction for the removal of the said superstructure and other things put up on the trespassed portion by the appellant. The appellant appears to have proceeded on the basis that he was doing these acts only on his property. Even in the written statement his contention has been that the alleged trespassed portion forms part of R.S. No. 3173| 12, which had been allotted to him by the Nammalwarpet Cooperative Housing Site Society of which he is a member. Therefore, it is not open to the learned Counsel for the respondent to contend that the question of equity should not be considered in this case on the ground that no plea in that regard has been raised in the written statement.
7. The learned Counsel for the respondent next contended that the equity can not be granted under Section 51 of the Transfer of Property Act to the appellant who is a trespasser. In this connection he relied upon some decisions. The first decision relied upon by him is of a Bench of this, Court in Secretary of State v. Dugappa Bhandary 95 I.C. 789 : A.I.R. 1926 Mad. 921, where the learned Judges have observed:
The question then arises whether the defendants believed in good faith that they were absolutely entitled to the land. They are the heirs of Veeranna Chetti, the elder brother of Nandiappa Setti. Nandiappa Setti obtained possession of the land after Durgi Setti's death, knowing full well that he had no title thereto and that he was a mere trespasser.... The original possession was gained by trespass and it can hardly be said that a person who enters upon land knowingly as a trespasser can bona fide believe that he is absolutely entitled thereto.... Negligence may in certain circumstances be consistent with honesty, but where title is obviously founded on possession which is knowingly obtained by trespass, it is impossible to hold that the trespasser honestly believed that he was the absolute owner.... I would, therefore, hold that the defendants are not legally entitled to the value of the improvements under Section 51 of the Transfer of Property Act.
8. There was evidence in that case to Show that the trespasser knew full well that he had no title to the property and that he was a mere trespasser. But in the present case as already stated the appellant appears to have put up a portion of the main building and a major portion of the well and to have done other acts in the trespassed portion of the suit property under the bona fide belief that that portion of the property was part of R.S. No. 3173|12, of which he was an allottee under the Nammalwarpet Cooperative Housing Site Society.
9. The next decision relied upon by the learned Counsel for the respondent is the one in Periakaruppan v. Madurai Kajimartheru Pallivasal 1937 M.W.N. 533., where it is observed-
The claim to compensation is based on Section 51 of the Transfer of Property Act, but against this it is argued that none of the defendants had made any claim for compensation in their written statement. Nor was there any issue taken therein, and of course there was no finding. The learned Counsel for the appellant is unable to produce any case similar to his in support of his claim and it seems to me that his contention cannot succeed because the defendants were clearly trespassers even assuming they entered upon the land in the bona fide belief that they had acquired good title. The word 'transferee' which appears in the section, in my opinion, cannot include a 'trespasser' and there is no case, so far as I am aware, where the benefit of the section has ever been extended to a 'trespasser'. There is moreover an allegation in the plaint that when the defendants were erecting or about to erect the houses the plaintiff objected and prevented them from doing so.
10. The respondent had sent the lawyer's notice, Exhibit A-4, dated 24th August, 1964 alleging that the appellant had encroached on 4 ft. of land and it was objected to by the respondent. The respondent further alleged in that notice that the appellant had removed the marking stones and put them in his house and had taken steps to put fencing on that encroached land. The appellant had sent the reply notice Exhibit A-5, dated 7th September, 1964, denying that there was any encroachment upon the respondent's land and saying that he was an allottee of the adjacent land by the Nammalwarpet Cooperative Housing Site Society and that the notice Exhibit A-4 should have been addressed to that Society and not to him. The appellant had further stated in that reply notice that the measurement of the respondent's land alone by the surveyor even if true was not the correct procedure and that he should have measured the entire land and also the land belonging to the respondent. The appellant had denied that he had removed any stones or that he had taken up steps to put a fence on any portion of the land belonging to the respondent. But according to the plaint the trespass on the coloured portion in Exhibit C-5 was made on 21st April, 1968, long after the exchange of the notices Exhibits A-4 and. A-5. There is no evidence to show that when the appellant was proceeding with the construction of his main building, the sinking of a well and putting up of other structures on the trespassed portion, the respondent raised any objection and drew the attention of the appellant that he was doing those things on a portion of the land belonging to her. Therefore, the aforesaid decision in Periakaruppa v. Madurai Kajimartheru Pallivasal 1937 M.W.N. 533, also does not help the respondent.
11. The learned, counsel for the respondent relied upon the decision in R.S. Madanappa v. Chandramma : 3SCR283 , which does not appear to help the respondent but appears to help the appellant. There it has been observed-
In some decisions of the High Courts reference has been made to equitable 'estoppel' but we doubt whether the Court while determining whether the conduct of a particular party amounts to an estoppel, could travel beyond the provisions of Section 115 of the Evidence Act.... The general principle of estoppel is stated thus by the Lord Chancellor in Cairncross v. Lorimer (1860) 3 Macqs. 827,-
The doctrine will apply, which is to be found, I believe, in the laws of all civilized nations that if a man either by words or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. I am of opinion that, 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 had been done by his previous licence.
In that case the appellant was in enjoyment of his daughter's share in his wife's properties after his wife's death fully aware of the fact that it belonged to the daughters. It has been observed in those circumstances that no man who, knowing fully well that he has no title to property spends money on improving it can be permitted to deprive the original owner of his right to possession of the property except upon the payment for the improvements which were not effected with the consent of that person. In the present case as I have stated it could not be held that the appellant did the several acts which he had done on the trespassed portion of the suit property knowing full well that he was doing so on a property which does not form part of the land allotted to him by the Co-operative Society of which he is a member or that he was doing these acts on a land belonging to the respondent.
12. The learned Counsel for the respondent next relied upon the decision of the Supreme Court in Bishandas v. State of Punjab : 2SCR69 , which in my opinion does not help either party. The admitted position in that case was that the land belonged to the State and that with the permission of the State one Ramjidas on behalf of the joint family firm of Faquirchand Bhagavandas built a dharmasala, a temple and a shop and managed the same during his lifetime and after his death the other members of the family continued the management. In those circumstances it has been observed on the basis of some earlier decisions that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser and that the buildings so constructed would not vest in the owner of the land.
13. The learned Counsel for the appellant relied upon the decision of a Bench of this Court in A.C.C. Ltd. v. Ramakrishna : AIR1965Mad318 . In that case, the appellant had secured from the Government a considerable extent of vacant land measuring about 420 acres including S. No. 950|1 which comprised 60 acres for the purpose of mining. Just south of S. No. 950|1 is S. No. 961|5 out of which the respondent had purchased from its owner one acre in the year 1950. For the purpose of his business he put up buildings on the land at a cost of nearly Rs. 17,000 commencing the work in 1950 and completing it in the next year. It was found that by putting up the buildings he had occupied 79 cents of the land in S. No. 950|1 which is Government poramboke. The learned Judges have observed-
The respondent 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 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 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 he 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 defendants 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. 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 a 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 their construction, it was evident that they were acquiescing in the act of he 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.
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 or memorandum of cross objections. Under the circumstances we leave the direction of the learned Judge as it stands.
14. In the present case also, as already stated, the respondent has not done anything when the appellant 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. The appellant could not have done these things in a hurry. They must have taken several months for the appellant to complete the things which he had done on the property. The respondent had not disclosed these things in the plaint and has not prayed for a mandatory injunction for the removal of the structures put up by the appellant on the trespassed portion of the suit property. The Court would therefore be justified in inferring acquiescence on the part of the respondent; I consider that this is not a case for directing delivery of possession of the trespassed portion to the respondent. But this is a case where the respondent has to be compensated in money for the value of the trespassed portion.
15. There is no evidence regarding the compensation to be paid to the respondent for the trespassed portion. The learned Counsel for the parties are not able to agree on the matter. The matter has therefore to go back to the lower appellate Court for submission of a finding regarding the market value of the trespassed portion. The lower appellate Court will submit its finding within two months from the date of receipt of the records. The parties will be at liberty to adduce fresh evidence regarding the market value of the trespassed portion of the suit property. They will have ten days time for filing objections after the finding is received in this Court.