1. The two grounds upon which the learned Additional District Judge has reversed the decision of the learned Munsif and dismissed the plaintiffs suit are: first, that the delay in instituting the suit leads to the conclusion that he acquiesced in the defendant's acts, and 2nd, that the plaintiff himself has not done equity and so has offended the principle that he who seeks equity must do equity. These grounds according to the learned Additional District Judge have disentitled the plaintiff to the relief he sought for.
2. As to the first of these grounds the position is this: The defendant's case was that the rooms were constructed about 1312 B.S. The suit was not instituted till 1325 B.S. 'If this be so', says the learned Additional District Judge, 'then plaintiff has waited a matter of 13 years before seeking relief and I think he is plainly out of Court.' As authorities in support of this view he has relied upon the cases of Duke of Leeds v. Earl of Amherst (1846) 2 Ph. 117 : 10-Jur. 956 : 41 E.R. 886 : 78 R.R. 47 : 16 L.J. Ch. 5. and Cairncross v. Lorimer (1860) 7 Jur. (N.S.) 149 : 3 Macq, H.L. 827 : 3 L.T. 130 : 123 R.R. 906. The learned Munsif had found that the plaintiff's statement that when the rooms were constructed he objected to the direction of the slope, of the roof was true. This finding has not been reversed or dissented from by the learned Additional District Judge but he observes that 'If these principles, (referring to the principles quoted by him from the two cases cited above) are applied to the present case,' I think there can be no doubt that plaintiff's conduct was such as to lead the defendants to believe that he had no objection at the time to the way in which the new rooms were being constructed.' It is not clear what conduct was being referred to--whether any conduct relating to the time when the rooms were constructed or the conduct in refraining from instituting the suit earlier or from taking prompt action. Presumably it is the latter, judging from the context. However that may be, no facts have been found which would suggest that the plaintiff stood by and saw the defendant dealing with the property in a manner inconsistent with the plaintiff's right and made no objection while the act was in progress, Nor is it at all established that the plaintiff acquiesced in the act so as to induces a reasonable belief in the defendant that he has consented to it, and there is nothing to show that the position of the defendants was altered by their giving credit to his sincerity. Acquiescence is not a question of fact but of legal inference from facts found and it is open, therefore, to invite this Court to consider whether the question of acquiescence has been properly decided by the Court of Appeal below [Beni Ram v. Kundan Lal 21 A. 400 at p. 504 (P. C); 1 Bom. L.R. 400 : 3 C.W.N. 502 : 26 I.A.58 : 7 Sar. P.C.J. 523 : 9 Ind. Dec. (N.S.) 1022 (P.C.), Per Mookerjee, J., in Ananda Chandra Sen v. Parbati Nath Sen 4 C.L.J. 198 at pp. 204, 205]. In De Bussche v. Alt (1878) 8 Ch. D. 283 at p. 314 : 47 L.J. Ch.; 38 L.T. 370 Thesiger L.J., observed that 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, he cannot afterwards be heard to complain of the act. This, as Lord Cottenham said in Duke of Leeds v. Earl of Amherst (1846) 2 Ph. 117 : 10-Jur. 956 : 41 E.R. 886 : 78 R.R. 47 : 16 L.J. Ch. 5., the case cited by the Court of Appeal below in its judgment, is the proper sense of the term 'acquiescence,' and in that sense may be defined as quiescence under such circumstances as that assent may be reasonably inferred from it, and is no more, than an instance of the law of estoppel by words or by conduct. In the case of Cairncross v. Lorimer (1860) 7 Jur. (N.S.) 149 : 3 Macq, H.L. 827 : 3 L.T. 130 : 123 R.R. 906. Lord Campbell enunciated the same principle in these words '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 license'. Mere quiescence or absence of interference is not sufficient to create an estoppel [Baswantapa v. Ranu 9 B. 86 : 5 Ind. Dec. (N.S.) 58, Joy Chandra Banerjee v. Sree Nath Chatterjee 32 C. 357 : 1 C.L.J. 23, Uda Begam v. Imam-ud-Din 1 A. 82 : 1 Ind. Dec. (N.S.) 55, Fatehyab Khan v. Muhammad Yusuf 9 A. 434; A.W.N. (1887) 82 : 5 Ind. Dec. (N. s.) 725, Chintaman Ramchandra v. Dareppa 14 B. 506 : 7 Ind. Dec. (N.S.) 801. (11) 33 Ind. Cas. 762 : 20 C.W.N. 657, Jaharuddi Mandal v. Debnath Chowdhury (11)]. In the present case, no act or conduct on the part of the plaintiff has been found which could induce the defendant reasonably to believe that he consented to their act, nor any which could reasonably induce them to give credit to his sincerity, nor again any but for which they would have abstained from doing what they did. It should not also be forgotten that the plaintiffs and the defendants are not co-owners but only owners of adjoining properties, and the vigilance required of and the duty cast upon a co-owner with regard to an infringement, of his right is certainly greater than and of a different description from what is expected of a neighbouring owner when he finds an act being done by the other on his own property. The only thing that has been proved is delay in coming to Court but mere delay in taking legal proceedings, if the remedy is not barred, is nothing. The onus was entirely on the defendants to prove acquiescence. The Judicial Committee in the case of Beni Ram v. Kundun Lal 21 A. 400 at p. 504 (P. C); 1 Bom. L.R. 400 : 3 C.W.N. 502 : 26 I.A.58 : 7 Sar. P.C.J. 523 : 9 Ind. Dec. (N.S.) 1022 (P.C.) observed as follows: In order to raise the equitable estoppel which was enforced against the appellants by both the Courts below, it was incumbent upon the respondents to show that the conduct of the owner whether consisting in abstinence from interference or in active intervention, was sufficient to justify the legal inference that they had by plain implication, contracted that the right of tenancy Under which the lessees originally obtained possession of the land, should be changed into a perpetual right of occupation'. In my opinion the defendant has entirely failed to discharge his onus in the present case. The next ground is based upon the principle, as the Court below puts it 'He who seeks equity must do equity'. The circumstance, upon which the application of this doctrine is invoked, is that the plaintiff stated in his evidence that he had closed the openings, though that was not put forward as a defence in the written statement. The principle was formerly expressed by the maxim. 'He who has committed inequity shall not have equity', and relief was refused where a transaction was based on the plaintiff s fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later, it was said that the plaintiff in equity must come with perfect propriety of conduct or with clean hands. Fraud or misrepresentation or matters of that description stand in the way of a plaintiff obtaining an equitable relief by virtue of this principle. It has hardly any application in a case when he has simply tried without the Court's intervention to abate a nuisance of which he complains.
3. Both the grounds upon which the suit has been dismissed, seem to me to be unsustainable. As no facts were challenged by the respondents in the appeal preferred by them to the Court of Appeal below I do not consider it necessary to send the case down for any further consideration of the facts.
4. I, therefore, reverse the decree of the learned Additional District Judge and restore, that of the learned Munsif with costs in this Court and in the lower Appellate Court.