JUDGMENT : AIKMAN, J. The plaintiff, who is appellant here, is the Receiver of an estate in the Bulandshahr district. The plaint sets forth that, on the 24th February, 1894, the second defendant, Inayat Beg, along with Musammat Mendo, deceased, now represented by the third defendant, Musammat Majidan, sold a house in Sankhni to the first defendant, Budh Sen, who has built a masonry house on the site of the purchased house, and that according to law and justice the sale and purchase were illegal and detrimental to the plaintiff's zamindari rights. The plaintiff asks to be put in possession of this masonry house; in the alternative he asks that the defendant may be ordered to remove the materials of the house within a time to be fixed by the Court. 2. Amongst other pleas, put forward by the answering defendant, Budh Sen, he alleged that he had built the new house nine years previously, that the plaintiff had acquiesced in the construction; that Sankhni is not a village but a town, that the inhabitants thereof were owners of their respective houses and that it had al ways been the custom among the residents to make transfers of their houses. The court of first instance dismissed the suit. The plaintiff appealed. His appeal was dismissed by the learned District Judge, and comes here in second appeal. 3. Reliance is placed on paragraphs of a Wajib-ul-arz framed at the penultimate settlement in 1870. The learned Judge says “no such record was framed for this district at the last settlement.” It is not clear what is meant by this. Possibly what the learned Judge means is that no similar provision is to be found in the village administration paper prepared at the last settlement, The paragraph relied on begins as follows:— ”Without any (our?) consent no body can settle in any place possessed by us.” This is no doubt intended to prevent strangers settling in the village without the zamindar's permission. With reference to this, it has to be borne in mind that the answering defendant is not a stranger but a resident of Sankhin. 4. The paragraph proceeds:— a ryot occupying any house cannot be turned out of it by any body so long as he lives in it, but he is not empowered to alienate the site. With reference to this, it has to be borne in mind that the answering defendant is not a stranger but a resident of Sankhin. 4. The paragraph proceeds:— a ryot occupying any house cannot be turned out of it by any body so long as he lives in it, but he is not empowered to alienate the site. He can remove and sell the materials of the building constructed by him.” 5. The answering defendant does not claim to have acquired any proprietary title to the site; he does not dispute the plaintiff's right to recover ground-rent for the site, and this is all the learned Judge has held the plaintiff to be entitled to. 6. As I read the clause relied on by the plaintiff, it does not prohibit the transfer of a house by one resident of the village to another. 7. The learned Judge finds that from 1870 onwards, sales and mortgages of house property have been going on uninterruptedly in Sankhni, and have never been objected to before. For the ap-pellant reliance is placed on a passage in the judgment in the case Sri Girdhariji Maharaj v. Chote Lal[1898] I.L.R., 20 All., 248. The passage relied on is an obiter dictum, which has been dissented from by more than one Judge of this Court. There is, I think, no manner of doubt that the defendant, Budh Sen, believed he had acquired a good title to the house, and that, acting on this belief, he expended a large sum of money “variously put at anything from Rs. 6,000 to Rs. 10,000.” The learned Judge observes” There is no doubt whatever that the erection of this fine house was acquiesced in by the plaintiff,” To this finding no objection is taken in the memorandum of appeal to this court. It is merely contended that the fact of the zamindar not objecting to the erection of the house will not affect his right to recover possession of the site by ejectment of the defendants. 8. The defendant at great expense reconstructed the house he had bought, believing that he had a right to do so. The plaintiff or his agent must have known that the defendant was spending his money in this belief, and yet allowed, him to do so. 8. The defendant at great expense reconstructed the house he had bought, believing that he had a right to do so. The plaintiff or his agent must have known that the defendant was spending his money in this belief, and yet allowed, him to do so. Years after the house is finished, the plaintiff without making any attempt to explain the delay comes to court, and sues for possession of the house or for its removal. In the well-known case, Ramsden v. Dyson, [1865] L.R., I.E., and I.A., 129 the Lord Chancellor says at p, 140, “If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.” 9. Applying the principle embodied in these observations to the facts of the present case, I have no hesitation in coming to the conclusion that the plaintiff is not entitled to either of the reliefs he asks for, and that his suit has been rightly dismissed. 10. I would dismiss this appeal with costs. KNOX, J. The questions raised in this second appeal are questions of no small importance. 11. They relate to the rights of land-holders in village homestead land and how far those rights may be affected by omission on the, part of a local agent to assert his principal's rights when infringed by any act of the tenant. 12. The lower appellate court in its judgment sets out the facts and they may be taken to be as follows:— The plaintiff-appellant is receiver of the estate of one Lala Babu, one of the landlords of the village Sankhni. The learned Judge tells us that “the homestead of this village lies about two miles from the town of Jahangirabad and has itself many urban properties. The learned Judge tells us that “the homestead of this village lies about two miles from the town of Jahangirabad and has itself many urban properties. Several wealthy people live there and it has far outstripped the ordinary incidents of a merely rural hamlet.” This fast fact stated by the Judge is open to question. The only authority I can find for it is the statement made in para, 9 of the written reply, which runs as follows:— Sankhni is not a village but a town. The zamindar has no right to the abadi of it. It has always been the custom among the residents of the village to make transfers, & c. The point was not put in issue and I find it difficult therefore to apprehend and to appraise the precise nature and force of the learned Judge's remark. It is easy to write “currente calamo” about a village as having far outstripped the ordinary incidents of a merely rural hamlet, but when we have to consider rights of property, something more definite is required showing in what direction and to what extent the incidents of a merely rural hamlet have been outstripped. 13. There is the tangible fact that in 1870 it was treated by the Settlement Officer as an ordinary mahal and the Record of Rights then drawn up was just such as would be drawn up for any ordinary mahal. I therefore prefer to deal with Sankhni as an ordinary mahal governed to all intents and purposes by the laws and customs which govern mahals in these provinces. It is for those who wish to take it out of this category or to maintain that it is governed by special local customs to establish such exceptions to the ordinary rule. 14. To resume the facts. The plaintiff asks (1) to be put into proprietary possession of a certain house of which Budh Sen is in occupation; (2) that the said defendant, Budh Sen Bakkal, be ordered to remove the materials of the house within a time to be fixed by the Court; (3) that if he fail to do so, his right so to remove them may be declared extinct. 15. The house in dispute originally belonged to the respondents, Inayat Beg and Musammat Majidan, and to their predecessors in interest:. 15. The house in dispute originally belonged to the respondents, Inayat Beg and Musammat Majidan, and to their predecessors in interest:. They have been mortgaging it for many years to various persons and eventually they have sold it to Budh Sen, the respondent, under a sale-deed dated the 22nd of February, 1894, some six years or more before the present suit was instituted. “Budh Sen, “the learned Judge finds, “set about renovating the house. He spent a lot of money on it” until the value according to a commissioner (the Tahsildar) appointed in the case for the purpose of ascertaining its value is estimated at Rs. 6,000. While this renovation was being carried out plaintiff's karinda “looked on and never said a word.” He, the learned. Judge, adds, “practically acquiesced in the improvements made by Budh Sen.” It is not easy to apprehend to what this practical acquiescence amounts in fact; it is an acquiescence gathered from either the act or the omission of the karinda, it is not said which, and the karinda is karinda to a principal who was at the time apparently a minor of very tender years (vide para. 5 of the plaint). He was a minor in 1889 and was still a minor in 1902. Apparently he is still a minor. The receiver of his estate is a Barrister residing in Calcutta. And the karinda is a person appointed by the Barrister under a special power of attorney which is on the record, The vendee apparently finished his building by 1896. 16. The situation then briefly is this. Certain cultivators have sold a house situate in the homestead of Sankhni to a bunyah. The bunyah has spent sums of money on it. The land-holder is a minor and the karinda of receiver of his estate appointed by the Court by act or omission has practically acquiesced. Can the landholder ask to be put in possession of the house or ask that the materials be removed? 17. In considering this question it is necessary to see first what are the generally recognized powers of a land-holder in these provinces over homestead land in a village. 18. I find on turning to the “Land Systems of British India” by B.H. Baden-Powell. 17. In considering this question it is necessary to see first what are the generally recognized powers of a land-holder in these provinces over homestead land in a village. 18. I find on turning to the “Land Systems of British India” by B.H. Baden-Powell. C.I. E., an officer who had great experience in these matters both as a Collector and afterwards as a Judge of the Chief Court of the punjab, the following, which accords with what my observation and experience leads me to believe is the custom ordinarily prevalent in the case of village homestead in these provinces. The following extract is from page 154 of his work:— “The village site (he is writing of homestead in the United Provinces) is owned by the proprietary body, who allow residences to— (1) “The kamin,” the artisan class, farm-labourers, and menials. (2) The tenantry. (3) The traders, money-lenders, & c. “These probably pay some small dues, according to custom; and if they leave the village, may have no right to dispose of the site, and only in some cases to remove the roof, timber and other materials.” Again, at page 107 I find the site on which the village habitations, the tank, the grave-yard, and the cattle-stand are, is claimed by them; and the others live in and use it only by permission—perhaps on payment of small dues to the proprietary body. 19. This Court in the Full Bench case, Chajju Singh v. Kanhai[1881] 1 A.W.N., 114, laid down that “the zamindars of a village are, as a rule, and presumably, the owners of all the house-sites in their villages, and a house left unoccupied by a tenant lapses to the landlord in the absence of heirs or other lawful assignees of the last occupant.” 20. The terms recorded in the wajib-ul-arz in this very village, so late as 1870, point to this custom being known and recognized in Sankhni. They are as follows:— “Paragraph 2.—Mention of homestead. * * * * 21. Without our consent no body can settle in any place possessed by us. A ryot occupying any house cannot be turned out of it by any body so long as he lives in it, but he is not empowered to alienate the site. He can remove and sell the materials of the building constructed by him.” 22. Without our consent no body can settle in any place possessed by us. A ryot occupying any house cannot be turned out of it by any body so long as he lives in it, but he is not empowered to alienate the site. He can remove and sell the materials of the building constructed by him.” 22. Assuming this to be a correct representation of the rights of land-holders in any normal village in these Provinces and remembering the force which attaches to a wajib-ul-atz, I hold that the sales and mortgages of house property which have according to the Judge been going on uninterruptedly in Sankhni for many years back from 1870 onwards, are of no value as establishing a custom to the contrary. They are at the best only evidence of so many special contracts in so many specific instances of transfer and nothing more. 23. The rights of tenants to sell houses which they had built for their occupation in a village homestead upon permission given by the zamindar was considered by a Bench of this Court in Sri Girdhariji Maharaj v. Chote Lal, [1898] I.L.R., 20 All., 248. In that case one Chote Lal had purchased at auction sale under a decree the rights of occupiers of a house in the abadi and the zamindar sued for possession. This court, relying upon what it held to be “the general and well-known custom of these Provinices, a custom so well established that it might be treated as the common law of the Provinces,” held that a person agriculturist or agricultural tenant, who is allowed by a zamindar to build a house for his occu pation in the abadi obtains, if there is no special contract to the Contrary, a mere right to use that house for himself and his family so long as he maintains the house and does not abandon it by leaving the village. They added that as such occupier he has, unless he has obtained by special grant form the zamindar, no interest which he can sell by private sale except his interest in the timber, roofing and wood-work of the house. They added that as such occupier he has, unless he has obtained by special grant form the zamindar, no interest which he can sell by private sale except his interest in the timber, roofing and wood-work of the house. They accordingly granted the zamindar or land-holder a decree declaring (1) that “the occupiers of the house had no right except to the timber, the wood-work and the roofing, which could be sold in execution of a decree against them’; (2) that a right to occupy the house was not transferable by sale, either private or in execution of a decree, and also a decree that the plaintiff be put in possession of the site claimed. Chote Lal was allowed thirty days to remove such of the materials of the house as were not part of the land; and it was added that he could not remove the walls of the house if they were constructed of soil belonging to the village.” 24. The attention of the learned Judge was called to this ruling,. but he refused to follow it holding that the deeds of sale and transfer which had been filed showed that Sankhni was not a small country hamlet to which any unwritten common law of the country can be held to apply, I am unable to follow the learned Judge in this reasoning. The wajib-ul-arz testifies to the contrary. 25. He, however, further holds that the appellant is barred by acquiescence from claiming this relief and that it would be inequitable to grant it. This view is challenged by the appellant. 26. The wajib-ul-arz testifies to the contrary. 25. He, however, further holds that the appellant is barred by acquiescence from claiming this relief and that it would be inequitable to grant it. This view is challenged by the appellant. 26. It will be necessary to examine somewhat closely the conduct of the plaintiff or rather that of his agent in order to decide whether that conduct in the present case does amount to such acquiescence as would estop the plaintiff from the relief he claims, and in connection with this it will be well to bear in mind what has been laid down by Lord CRANWORTH in the case of Ramsden v. Dyson, [1865] L.R., I.E. and I.A., 129 at p. 158:— “If, indeed, the principal knows that persons dealing with his agent have so dealt in consequence of their believing that all statements made by him had been warranted by the principal, and, knowing this, allows the persons so dealing to expend the money in the belief that the agent had an authority which, in fact, he had not, it may be that in such a case a Court of Equity would not allow the principal afterwards to set up want of authority in the agent. But this equity, whenever it exists, defends absolutely on the fact that the knowledge on which it rests can be brought home to the principal.” In the present case I cannot lay my finger upon any act of the agent. All that I can find is that while Budh Sen spent the money, the agent looked on and never said a word. There is nothing to show that Budh Sen ever enquired or had any reason to believe that this agent had authority to allow his principal's rights to be given away or that any statement of the agent (no such statement is set up) was warranted by the principal. 27. The powers which are conferred upon this agent have been set out in his power of attorney. 27. The powers which are conferred upon this agent have been set out in his power of attorney. I have had this document read over to me, It is a carefully prepared and guarded document, and I can find nothing in it on which to base an inference that the agent had any power to give away any rights of his principal, indeed there is one clause which expressly sets out that the principal will not be responsible for any acts of the agent in excess of the power conferred by the deed. To hold that the property of or rights in the property of an absentee minor could be given away by an agent looking on and allowing a tenant to spend money is a step I cannot bring myself to take. 28. I regret exceedingly to find myself differing from my learned brother. I can find no ground on which to base the inference that the plaintiff must have known the defendant was spending money in the belief that he had a right to do so. The plaintiff resides in Calcutta and it is not shown that he ever came near Sankhni. The probabilities are the other way. There is nothing to show that any news of the defendant's act was ever conveyed to him. If we consider probabilities they lean quite as much to the defendant stealing a march upon an absentee landlord, but I prefer to base my judgment upon the facts. Upon them I am constrained to hold 1st.—That it has not been shown that the right of landholders in the homestead in mauza Sankhni differ in any respect from what are the general and customary rights prevalent in these provinces. 2nd.—That, the respondent, Inayat Beg and Musammat Maji-dan, could not transfer to the respondents, Budh Sen, anything further than the materials, & c, of the house which Inayat Beg and Musammat Majidan occupied as tenants. 3rd.—That it has not been shown that the landholder knew or acquiesced in the building erected by Budh Sen. 4th.—That the landholder's agent had no authority to do any act signifying such acquiescence on his principal's behalf. 29. For these reasons I would allow the appeal, but as the judgement of the Court must be that of my learned brother, I need not set out what in my opinion should be the relief granted. BY THE COURT. 4th.—That the landholder's agent had no authority to do any act signifying such acquiescence on his principal's behalf. 29. For these reasons I would allow the appeal, but as the judgement of the Court must be that of my learned brother, I need not set out what in my opinion should be the relief granted. BY THE COURT. The order of the Court is that the appeal be dismissed with costs.