1. This is an appeal by the plaintiff in a suit for recovery of possession of land, on declaration that it is included within his tenancy under the landlord defendants. The defendants disputed the title of the plaintiff to the eastern half of the land; as regards the western half, they pleaded that the plaintiff had willingly given it up for the establishment of a market thereon and had been granted lands in exchange elsewhere. The defendants further contended that the plaintiff was barred by the doctrine of estoppel or acquiescence. The Court of first instance found upon the question of title in favour of the plaintiff, held that he was not barred by the doctrine of estoppel or acquiescence and decreed the suit. On appeal the Subordinate Judge has affirmed the findings of the Trial Court, but, as in his opinion the plaintiff did not take active steps 'to prevent this spoliation,' he has allowed the appeal and dismissed the suit. On the present appeal the decision of the Subordinate Judge has been assailed on the ground that the doctrine of estoppel by conduct or acquiescence has no application to the facts found, and that as the substantial defence to the claim, namely, that the plaintiff had been given lands in exchange for the disputed property, has completely failed there is no answer to the suit. In our opinion the decree of the Subordinate Judge cannot possibly be supported.
2. As the title of the plaintiff to the entire land in dispute has been found by both the Courts below, he is prima facie entitled to succeed. The defendants contend, however, that the claim is barred, because the plaintiff willingly gave up this land for the erection of a market and was given lands elsewhere on exchange. This allegation was specifically found untrue by the Court of first instance; there is no discussion by the Subordinate Judge upon this point, possibly for the reason that the defendants, who were appellants before him, did not challenge the finding. The question, consequently, arises, whether there is a valid defence to the claim. We cannot discover any plausible defence. It is argued, indeed, that the remedy of the plaintiff was by way of a suit for specific performance of the alleged agreement to give him land elsewhere. In this connection, reference may be made to the written statement, where it is alleged and the plaintiff and other tenants similarly situated whose lands were taken by the defendants agreed to give up possession thereof in favour of the landlords in return for consideration or in exchange of lands situated elsewhere. It has been found that the plaintiff has not been given either cash consideration or land in exchange. Consequently, the act of the defendants has been rightly characterised as 'spoliation,' by the Subordinate Judge who has decided in their favour. The doctrine of acquiescence has plainly no application, in these circumstances.
3. Stress has been laid upon a passage from the judgment of The siger, L.J., in the case of De Bussche v. Alt (1878) 8 Ch. D. 286 at p. 314 : 47 L.J. Ch. 381 : 38 L.T. 370 where reference is made to the decision of Lord Cottenham in Duke of Leeds v. Earl of Amherst (1846) 2 Phil. 117 at p. 123 : 10 Jur. 956 : 41 E.R. 886 : 78 R.R. 47: 'If a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, be cannot afterwards be beard to complain of the act.' This doctrine is of no assistance to the defendants. Mere quiescence is not acquiescence Ananda Chandra Sen v. Parbati Nath Sen 4 C.L.J. 198. The plaintiff did not stand by in such a manner as to induce the defendants to believe that he assented to the acts of the defendants. Even according to the defendants, the plaintiff demanded restitution for the loss of the lands which his landlords proposed to take up for the market; he insisted on the payment of consideration in cash or grant of land in exchange. He has received neither money nor land, although the defendants have falsely alleged that he had received land in exchange. We cannot possibly accede to their contention that the remedy of the plaintiff is by way of a suit for recovery of the price of the land or for specific performance of the agreement to give other lands in exchange. They have acquired no title to the land, and we are clearly of opinion that we should not assist them, in disregard of the principles of justice, equity and good conscience, to retain possession of land which they have seized by very questionable methods. A Court of Equity will not have recourse to the doctrine of estoppel or acquiescence for the benefit of a party who does not come into Court with clean hands and whose conduct has been properly described as spoliation or oppression.
4. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and that of the Court of first instance restored. This order will carry costs both here and in the Court of Appeal below.