K.C. Das Gupta, J.
1. The property in litigation belonged originally to Mangrulal Ahir. The plaintiff's case is that on MangruYal's death, his widow and minor sons, defendants Nos. 3 to 7, became owners of the land as his heirs. The plaintiff purchased this property from defendants Nos. 3 to 7 by a kobala dated the 12th July 1948. In the meantime, on the 1st April 1946 defendant No. 1 had obtained a lease from Kanai Lal Ahir in respect of the land described in Schedule B of the plaint, forming part of the property left by Mangiulal. Kanai Lal executed that deed of lease on behalf of himself and also as guardian of Keshab Prasad Ahir, defendant No. 3. After obtaining the lease, defendant No. 1 filled up the tank in the land of Schedule B and also erected a structure. In that lease, Kanai Lal described himself as the son of Mangrulal Ahir. The plaintiff's case is that Kanailal was not Mangrulal's son but was the son of Mangrulal's wife Babuna by a former husband. He had, therefore, no interest in the land and defendant No. 1 acquired no interest by the lease. The plaintiff prayed for a declaration of his title to the land described in Schedule B, a declaration that the deed of lease was void and not binding upon the plaintiff, a declaration that defendants Nos. 1 and 2 had no interest in the land in suit and for a permanent injunction restraining the defendants Nos. 1 and 2 from exercising any right therein and also for delivery of khas possession and mesne profits and damages.
2. The main defence was that Kanailal and Keshab Prasad were the only sons of Mangrulal and defendants Nos. 4 to 6 were not his sons. It was pleaded that the plaintiff had acquired no title by his purchase, and that defendant No. 1 had acquired good title by the deed of lease. It was further pleaded that in any case as the plaintiffs predecessors, the sons and widow of Mangrulal, had Kept quiet when they saw her improving the land and erecting the structure, the plaintiff should not be allowed to obtain possession of this land.
3. The trial court accepted the plaintiffs case that Kanailal was not Mangrulal's son and had, therefore, no interest in the land and that by the lease no interest in the property was acquired by defendant No. 1. It held further that defendants Nos. 3 to 7 were the rightful heirs of Mangrulal and the plaintiff acquired good title to the land by his purchase. The learned Subordinate Judge rejected the contention that the plaintiff was not entitled to obtain possession of the land because of the conduct of his vendors but thought that equity demanded that the plaintiff should pay Rs. 2000/-as compensation money to defendant No. 1 in respect of the improvement made by the latter in filling up the tank in this property. He accordingly, decreed the suit subject to this that the 'plaintiff would have to pay a sum of Rs. 2000/- to defendant No. 1 in respect of the improvement. Defendant No. 1 was also ordered to remove the structure made by her upon the land within a month from the date of the order, failing which it was ordered that the plaintiff was entitled to remove the same by execution of the decree.
4. On appeal, the learned District Judge affirmed all the findings of the trial court and dismissed the appeal. He gave a direction that the appellant, defendant No. 1, would have to remove the structure standing on the suit land within two months from the date of his order and in default, the plaintiff respondent would be entitled to remove the same by execution.
5. The first contention raised in this second appeal before us was that the defendant No. 1 was entitled to protection of Section 41 of the Transfer of Property Act. That section provides:
'Where, with the consent, express or implied., of the person interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.'
6. I find that no such issue was framed at all in the trial court and though there are occasional references to acts of possession or management by Kanailal on behalf of Mangrulal's heirs, the plea that the defendant No. 1 was entitled to the protection of Section 41 of the Transfer of Property Act does not appear to have been raised at all before the court below. We have looked in vain through the lengthy written statement for a plea of this nature. It is clear to me that the case now sought to be made by the learned Advocate on behalf of the appellant that Kanailal was the ostensible owner of the property with the express or implied consent of the rightful owners, was not at all raised in the pleadings. It is not open to us to allow the learned Advocate to take this plea here. The decision of a plea of protection under Section 41 of the Transfer of Property Act depends on several questions of fact each of which requires careful examination. Unless such a plea is clearly taken in the pleading and put in issue between the parties, it is not reasonable to expect that the parties will adduce necessary evidence on it. When that is the position, it is not open to the Court to look at particulars of statements made in connection with other matters which might appear to be evidence on the points to be considered in deciding a plea under Section 41 of the Transfer of Property Act. The plea not having been taken and not having been put in issue between the parties, I am of opinion that the first contention raised by Mr. Ghose on behalf of the appellant that his client should get the protection of Section 41 of the Transfer of Property Act must be rejected.
7. It was next contended that as the plaintiffs vendors stood by at the time the defendant No. 1 improved the land and built the structure, they would have been estopped from challenging the validity of the title obtained by defendant No. 1 by the deed of lease and so the plaintiff also is estopped. Quite apart from the question that of the plaintiffs vendors, defendants Nos. 3 to 6, were minors, I am, of opinion that in the facts of this case no duty lay on the plaintiff's vendors to inform defendant No. 1' that Kanailal was not Mangrulal's son and had no title. Estoppel may certainly arise in consequence of representation by the omission of a party to do or say something but unless there is a duty imposed by law on the party to do or say something, the omission to do that thing or say that thing cannot give rise to estoppel. As in my view, no duty lay on the plaintiffs vendors to disclose to defendant No. 1 that Kanailal was not Mangrulal's son and that by the deed of lease obtained by her, the defendant No. 1 had not acquired any interest, the argument, that the plaintiff is estopped from denying Kanailal's title on the strength of the lease, is also rejected.
8. It was next contended on behalf of the appellant that in any case defendant No. 1 became a monthly tenant of the property. It is said that several rent receipts were issued by Kanailal in favour of defendant No. 1, that on two occasions rent was remitted by money order and was received in one case by the widow and in the other case by the minor Keshab Prosad. In the first place, it is to be noticed that no case has been made in the written statement that a relationship of landlord and tenant arose because of the receipt of rents by defendants Nos. 3 to 7. The case there was that Kanailal and Keshab Prosad Ahir were the rightful owners and the deed of lease created the leasehold interest. Apart from this, I am unable to agree that the mere fact that some rents sent to Kanailal as the landlord were received by Babuna or Keshab Prosad would create a monthly tenancy in favour of defendant No. 1. This contention also fails.
9. Lastly, it was argued that compensationd have been granted by the courts in respectof the structures also. In my judgment, the courtsbelow were very fair and indeed liberal to the defendant No. 1 in granting compensation for theimprovement in the land and have acted rightly inallowing defendant No. 1 to remove the structuresThe correct position in law is that defendant No. 1acquired no title to the land and when without suchtitle she erected such structure, the rightful ownercannot be asked to take it on payment of compensation.
10. All the points raised in appeal, therefore, fail. I would, therefore, dismiss the appeal with costs. As the time granted by the court of appeal for removing the structures to defendant No. 1 has long expired, it is proper that some time should now be granted for the purpose. Defendant No. 1 is allowed three months' time from this date to remove the structures standing on the suit land failing which the plaintiff will be entitled to take possession in execution.
B. K. Guha, J.
11. I agree.