R.C. Mitter, J.
1. The subject matter of the suit is a strip of land being the Western portion of the Southern Bank of a certain tank. The Eastern portion of the Southern Bank admittedly is the property of the Aryya Mitra Institution, a school of which the defendants are the members of the committee. The suit lands are described in schedule Ka of the plaint. The plaintiff's case is that the Western portion and the Eastern portion of the Southern as well as the other banks of the tank were at some time ejmali properties of the plaintiff's and the defendants' predecessors in title. There was a partition and the Western portion of the Southern Bank was allotted exclusively to the share of the plaintiff's predecessor The plaintiff has instituted this suit on the ground that the property described in Schedule Ka falls within his exclusive property but he was dispossessed from it in the year 1928 when there was an encroachment made and some huts of the school were built upon a portion of it. He claims therefore recovery of possession on declaration of his exclusive title. The defendants denied the title of the plaintiff and in one paragraph of their written statement they said that the plaintiff's suit was barred by estoppel, acquiescence and waiver.
2. They did not plead facts which would support the said plea of estoppel, acquiescence and waiver. In another paragraph of the written statement they stated that at the time when those huts were raised on behalf of the school authorities, the plaintiff's son was the secretary of the school and those huts were raised with the knowledge of the plaintiff's son and of the plaintiff. They did not say in the written statement that either the plaintiff or the plaintiff's son on behalf of his father gave his consent to the school authorities to raise those buildings nor did they plead an alternative case that even if the land belonged to the plaintiff the school authorities were given a license to build upon it. Both the Courts below have found that the land in suit belonged to the plaintiff and he was dispossessed in the year 1928, well within the period of limitation. The Court of first instance made a decree in favour of the plaintiff on those findings. The lower appellate Court, although maintaining those findings which I have noticed above, has dismissed the suit on the ground that the plaintiff must be taken to have given his consent to the school authorities enclosing the disputed land within his compound and raising structures on some portion thereof.
3. The lower appellate Court deals with this question in dealing with point No. 4 formulated by it, namely 'To what relief is the plaintiff entitled.' First of all it states that the plaintiff's son was the secretary at the time when the school authorities took possession of this plot of land and from that he says 'there can be no manner of doubt' that he (the plaintiff's son) was fully aware of the fact that the school authorities were enclosing the said portion and were raising structures on it. That is a finding which I take to be a good finding based on evidence. It was open to the lower appellate Court to draw the inference from the fact that the plaintiff's son was the secretary, at the time that the plaintiff's son had knowledge of the fact that on this particular plot rooms of the school were being built and this particular plot was being enclosed within the school compound. Then the lower appellate Court says the plaintiff's son is a dutiful and obedient son and is in the same mess with his father. From that he concludes that the plaintiff's father must have known of these operations on the part of the school authorities well, although there is some element of speculation here, and I would take it for the purpose of my decision that this is a good finding also. Then the learned Judge says that 'I am inclined to think that the school was removed to the suit land with the knowledge and consent of the plaintiff.' He is a litle inaccurate there in the statement of the facts because the school was not removed from its old site to its present site but there was only an extension over the suit land. However that may be, that is a misstatement which is immaterial for the purpose of this appeal. Then he says that,
inasmuch as the plaintiff by his own conduct must have led the school authorities to believe that he would not object to any hut being erected there and the remaining land being used for the purpose of the school he cannot now turn round to take khas possession of the land by the removal of the mud-walled hut or huts thereon which are no doubt substantial structures.
4. On these three findings which I have enumerated above the learned Judge, modified the decree of the Court of first instance and gave to the plaintiff possession of only the vacant portion of schedule Ka land. He did not give him khas possession of the portion of schedule Ka where the huts stand nor did he direct the removal of the said huts but only gave the plaintiff a decree for damages for use and occupation of the lands whereon the school huts stand. I have great difficulty in following the conclusion of the learned Judge on the aforesaid findings. As I have indicated above I consider some of these to be no findings at all but mere speculations. But assuming them to be good findings, there are serious objections to the decree which the learned Subordinate Judge has made in this case. In the first place, as I have pointed out, defendants did not plead an alternative case that the school authorities were there with the license of the plaintiff. They did not plead that the plaintiff had given consent to the extension of the school over this ground. All that they pleaded was that the plaintiff knew of these extensions and they said that the plaintiff's claim for possession was barred by estoppel and acquiescence and waiver. The point about waiver has not been, developed before me and therefore in dealing with the above mentioned sentence in the written statement I leave aside the word 'waiver.' The finding therefore that the plaintiff gave consent to the school authorities to enclose his land is a finding on a new case made by the lower appellate Court for the defence and that finding therefore must be disregarded. What remains then is the finding that the plaintiff knew that the school authorities were enclosing the land which is now described as Schedule Ka of the plaint and which is now claimed as the plaintiff's land.
5. There is no suggestion that the plaintiff either himself or through his son made an active representation to the school authorities in the year 1928, that this land was the land belonging to the school. Therefore there is no foundation for the application of the doctrine of estoppel. The question is whether the doctrine of acquiescence can be invoked for the purpose of defeating the plaintiff's claim for khas possession. Now, as I understand it, the doctrine of acquiescence is only another phase of estoppel The foundation of the doctrine of estoppel and acquiescence is that the representations have been made to the other side-representations which were intended to be acted upon by the other side, and were in fact acted upon by the other side spending ney or doing some act which he would not have otherwise done which involved expenditure or a change of position. In the case of estoppel the material representations are active in form while in the case of acquiescence the representations are to be inferred from silence. The doctrine of acquiescence has gone by different names -the doctrine of standing by-but all the elements must be there. If an owner finds another person trespassing upon his land and building upon his land, mere silence or inaction on his part at the time of the building operations is not sufficient to support a case of acquiescence. He need not prevent the act at the time when it was begun. He need not say to the other side to stop. Mere silence, mere inaction cannot be construed to be a representation. In order to support a case of acquiescence there must be something more than mere silence or inaction. Inaction or silence in circumstances which require a duty to speak is the foundation of the doctrine. When inaction or silence would amount to fraud or deception then and than only would the doctrine of standing by or acquiescence be applied. This is the position which is made quite clear in the judgment of Sir Asutosh Mookerji in Joy Chandra Bandopadhaya v. Srinath Chattopadhaya (1905) 32 Cal 357. The passage is at p. 27 and runs as follows:
It cannot be doubted that there may be cases in which there is deception by omission, but silence may be treated as deception only when there is a duty to speak; in other words, as Bigelow points out, ' a duty to speak, which is the ground of liability, arises wherever and only where silence can be considered as having an active property, that of misleading.'
6. In Willmott v. Barber (1880) 15 Ch D 96 Fry, J. has defined the elements in a lucid manner. There he was considering the case whether the defendant was bound by the doctrine of acquiescence from asserting his legal rights. First of all he points out that omission or inaction on the part of the defendant would support a case of acquiescence if his omission or inaction amounted to fraud. Then he makes this' observation: Willmott v. Barber (1880) 15 Ch D 96. The passage is at pp. 105 and 106:
What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff 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 his 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. If he does not know of it he is in the same position as the plaintiff and the doctrine of acquiescence is founded 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 his 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.
7. It is the third and the fourth element in the passage which is material for this case. If the possessor of the legal right does not know at the time when the trespasser is spending money upon his property that the land is his, and if he does not know in addition that the tres-passer is acting under a mistaken belief that the property is his, there is nothing wrong if he remains silent. His conscience is not affected. There is nothing fraudulent in his conduct. Even if he knows that the property is his he might not disclose at that time to the trespasser that the property is his unless he also knows that the trespasser is spending money upon a mistaken view of his rights. In the present case there is no evidence whatsoever that in the year 1928 either the plaintiff or the plaintiff's son knew that the portion which was being enclosed by the school authorities was the property of the plaintiff and/or that they knew that the school authorities were under the mistaken belief that the property that was being enclosed was the property of the school. The onus is on the defendants who want to deprive the plaintiff of his legal rights by taking the said plea. They must prove all the elements, specially the 3rd and 4th which are important for the present-case noticed in the judgment of Fry, J. It may very well be that in the year 1928, when the plaintiff's son was the Secretary of the school, the plaintiff's son believed that the portion which was being enclosed then was a part of the property of the school. If that was so, there would be no foundation for the doctrine of acquiescence. In this view of the matter I do hold that the defendants have not made out a case of acquiescence. The lower appellate Court having found title to the whole of schedule Ka in the plaintiff and the suit having been instituted within six years of the dispossession of the plaintiff by the school authorities, the plaintiff must have a decree for possession in respect of the property in suit. The result is that I allow this appeal, set aside the decree of the lower appellate Court and restore the decree of the Court of first instance. Having taken into consideration the history behind this litigation I think both parties should bear their respective costs of this Court and of the lower appellate Court.