Judgment :- This is a fight between two brothers. The appellant before me is the plaintiff. He is the younger brother. First defendant is the elder brother. Second defendant is the wife of the first defendant. In the suit, plaintiff scheduled two items of properties-item 14? 1/2 cents of land and item II a building in item 1. The suit was one for recovery of both items on the strength of title. The outline of facts in a nutshell necessary for the disposal of this appeal are these. 2. Plaint item I was allotted to the plaintiff in a partition deed Ext. Al. It is dated 29-3-112). At the time when the partition was effected, the plaintiff was in military service. Then he remained a bachelor. 3. In 1965, the plaintiff planned to construct a building in the property allotted to him viz. plaint item I. The construction of the building began in 1965 and the same was completed by the end of 1966. Plaintiff thereafter was residing in the building. Since the defendants were residing in a rental building, he allowed the defendants to reside in the building along with him. 4. According to the plaintiff, while the plaintiff was away, the income from the property was taken for and on behalf of the plaintiff by the first defendant and he used to account the income till 1979. In 1976, the plaintiff decided to marry. Thereafter, the relationship between the brothers became unharmonious and at discordance. They became at odds. The defendants began to appropriate the income from the property. The 1st defendant got entries made in the Panchayat register stating that the building belongs to him. He paid the building tax. 5. Since the building and the property are owned by the plaintiff, the plaintiff prays that the court should pass a decree allowing recovery of the properties scheduled in the plaint with mesne profits of Rs. 175/- per annum as the income derivable from plaint schedule No. I and a rent of Rs, 360/-per annum for the building. 6. Defendants contended that the plaintiff bad no possession from the inception, namely, from the date of partition. In 1965, the defendants constructed the building and the construction was with the full knowledge and consent of the plaintiff. According to the defendant?, the first defendant has spent the entire amount for the construction of the building. 6. Defendants contended that the plaintiff bad no possession from the inception, namely, from the date of partition. In 1965, the defendants constructed the building and the construction was with the full knowledge and consent of the plaintiff. According to the defendant?, the first defendant has spent the entire amount for the construction of the building. Prom 1121 onwards, the first defendant was taking the income from the property and that he never accounted the income of the property to the plaintiff. Thus the first defendant claimed ownership of the property as well as the building. He submits that the claim for recovery of the building and the property are unsustainable and the suit has to be dismissed. 7. The trial court, after considering the evidence adduced in the case, held that the plaintiff has established his case in respect of plaint item I property and decreed the suit allowing recovery of plaint item I property. But, in respect of item 2 building, the trial court found that the building was constructed by the first defendant by his own funds, and so disallowed the prayer for decree for possession of the building. Of course, the trial court held: "Even if he (the plaintiff) had given the money to the defendants, for which there is no evidence, it does not mean that the building was constructed by him. It is clear from the evidence that item No. 2 building was built, by the defendants with the consent and knowledge of the plaintiff and that the plaintiff has spent some amounts for the construction of the building. The fact that he has spent some money for the construction does not give him title to the building. I find that item No. 2 building was constructed by the defendants". 8. Plaintiff filed an appeal before the District Court, Kottayam. The, appellate court agreed with the findings of the trial court in respect of item No. L In regard to item No. 2 building, the appellate court also came to, the conclusion that the building was constructed with the funds of the first defendant and that the plaintiff has spent some money and that was only a help to his brother. Further, in regard to the title to toe building, the appellate court held that S.60 (b) of the Easements Act is applicable insofar as the first defendant has to be treated as a licensee and that he has executed a work of permanent character (the building) and incurred expenses in the execution and so, the licence is not revocable. The appellate court then disallowed a decree in respect of item 2. Now, the plaintiff appeals. 9. Counsel on both sides argued their case very ably. At the outset, I feel that the finding of the appellate court that the plaintiff is disentitled to recover the building on the ground that the defendant has an irrevocable licence in respect of the building is totally unsustainable. The first defendant has not pleaded a case of licence. Throughout his pleading, he maintained that the property belonged to him and whatever right the plaintiff had, be lost it by adverse possession and limitation. A reading of the written statement would not show even at a long short, a case of a licence much less an irrevocable licence under S.60 (b) of the Easements Act. No issue has been raised by the trial court on this contention. It is absolutely unjustified for the appellate court to spin out a totally new case unrelated to the pleadings in the case for the defendants and to hold that the plaintiff is not entitled to a decree on that ground, S.60 (b) of the Easements Act provides thus: - "60. Licence when revocable; -A license maybe revoked by the grantor, unless - (a) (b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution". To attract the application of clause (b) of S.60 of the Act, it is necessary that the work of a permanent character must be executed in pursuance of a licence. The person concerned should be acting upon the licence. When, once there is on pleading of a licance.it is hardly possible to hold that the first defendant has executed the work of a permanent character acting upon the licence. Further, it has to be noted that the pleading is totally inconsistent with the case of a licence. 10. Order 6, rule 2 CPC. makes it clear that the court cannot act upon proof which is in variance with the pleading. Further, it has to be noted that the pleading is totally inconsistent with the case of a licence. 10. Order 6, rule 2 CPC. makes it clear that the court cannot act upon proof which is in variance with the pleading. Evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they bad no opportunity of adducing evidence. This has tempted me to say «hat it was totally unjustified on the part of the appellate court to drag out a case of a licence for the first defendant. 11. In Shankar v. Gangabai (AIR 1976 SC 2506), the Supreme Court has observed thus: - "Paced with this difficulty, learned counsel for the appellant was driven to raise points on which there is no pleading, no issue and naturally no satisfactory evidence. The first of such contentions raised by Mr. Bal is that the appellant must be deemed to be a licensee of the respondent and since be has executed work of a permanent character on the land involving heavy expenses, the licence would be irrevocable under S.60 (b) of the Easements Act, 1882 only one more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so acting upon the licence", as required by S.60 (b) of the Basements Act. If be really improved the land by executing a work of a permanent character, be did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sale will one fine day be implemented The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity as a licensee". I have no hesitation to hold that the finding of the learned District Judge on this aspect of the case is totally erroneous. When Dw.l was examined, he has said in his deposition that the plaintiff has agreed orally that the property and the building can be taken by the first defendant. I have no hesitation to hold that the finding of the learned District Judge on this aspect of the case is totally erroneous. When Dw.l was examined, he has said in his deposition that the plaintiff has agreed orally that the property and the building can be taken by the first defendant. 12.1 feel that the chief question that has to be considered in this case is as to whether the findings of the courts below that the building was constructed with the funds of the first defendant is correct or not. Essentially this is a question of fact. The contributory question that is intimately linked with this question is that whether the building was intended to be constructed for the plaintiff or for the 1st defendant. Counsel for the appellant submitted before me that this is the most important and crucial question to be decided in the case and on this crucial question, the weight of evidence is in favour of the plaintiff and a totally misdirected appreciation of evidence is explicit in the discussion of evidence by both the courts. He submitted before me that the courts' prime devoir is to do justice in the cause and for that purpose this court should consider the evidence regarding this crucial question in order to satisfy whether the conclusions drawn from the evidence are reasonably probable conclusions or not. According to the counsel for the appellant, the conclusions are absolutely unreasonable and no court can come to such conclusions on the evidence let in by the parties. The Supreme Court in Dilbagrai Punjabi v. Sharad Chandra (1988 (3) SC. 308) has held thus: "The court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding". I had occasion to consider this aspect of the matter in Krishnan v. Madhavi (1986 KLT 51) wherein I said: "If the conclusion drawn on the facts proved in the case is wrong, it is a question of law. I had occasion to consider this aspect of the matter in Krishnan v. Madhavi (1986 KLT 51) wherein I said: "If the conclusion drawn on the facts proved in the case is wrong, it is a question of law. The court of second appeal ought to be very slow indeed" to the point of not interfering with findings of fact, however gross the error may seem to be and it very seldom do so but if it appears that the judgment of the court below proceeded on certain conclusions based on an imagination that certain facts are brought out in evidence (when in reality it is not so) and if this court is satisfied, to uphold such a judgment would be an injustice to one of the parties, then I fee! that this court even in second appeals has power to interfere with the judgment, and it In (1979) I All E.R.65 (Ottley v. Morris) Their Lordships of the Chancery Division observed thus: - 'Under S.56(6) of the Taxes Management Act 1970 the courts have power to determine only a question or questions of law arising on the case "stated, but in Rose v. Humbles (Inspector of Taxes) (1970)2 All ER 5)9, it was decided that the question whether or not an adjournment should have been granted is such a question. The essential matter. I think, is whether the tax payer suffered such an injustice by reason of the refusal of an adjournment that the decision should not be allowed to stand. I am certainly of the view that the courts should be slow indeed to interfere with a decision of Commissioners as to the adjournment of an appeal before them, but I have come to the conclusion that the taxpayer here may have suffered a substantial injustice in the circumstances of the present case, and that in the rather special circumstances of the case it would be right to remit the matter to the Commissioners". I feel that if I decline to investigate this crucial question on evidence/there will be a failure of justice in this case. So, I shall examine the evidence in the case, 13. To appreciate the evidence in the case, the following admitted facts are important. The building is now constructed admittedly in the property of the plaintiff. There is no case that the first defendant had no property to construct a building. So, I shall examine the evidence in the case, 13. To appreciate the evidence in the case, the following admitted facts are important. The building is now constructed admittedly in the property of the plaintiff. There is no case that the first defendant had no property to construct a building. Why the first defendant has chosen to construct a building for him in a property which belonged to his brother is not explained satisfactorily. It is also in evidence that the brother, was, at the relevant time, not in the locality and he was employed elsewhere. Hs was a bachelor and naturally there will be an entrustment of the property to the brother or to the wife of the brother to look after the property. 14. The important aspect of the matter which requires an initial investigation is, for whom, the building was proposed to be constructed? Naturally it should be for the person who is the owner of the property if it is otherwise, it has to be proved by the person asserting it. 15. admittedly the construction of the building was begun on 13th September, 1965. Ext A6 is a letter written by the 2nd defendant the wife of the first defendant to the plaintiff. It is dated 10-8-1965. This relates to the proposed construction of the building. The tenor of the letter is plain and clear; it is for the approval of the scheme of the mode of construction. The details of the proposed construction is given in the letter. I shall quote some portions of this letter. The above quoted matter in the letter would indicate that the first defendant is seeking the confirmation of the plaintiff to start the construction of the building. If the construction is intended for the defendants, the defendant will never seek the approval or confirmation from the plaintiff. It is pertinent to note that in regard to iron, cement and tiles there is a statement (hat it has to be bought by the plaintiff himself. Further, in the letter it is stated., if the amount is found to be more, the man who has undertaken to construct the building is willing to reduce the amount to an exrent of Rs. 20Q/-and further it is requested in the letter: This letter Ext. Further, in the letter it is stated., if the amount is found to be more, the man who has undertaken to construct the building is willing to reduce the amount to an exrent of Rs. 20Q/-and further it is requested in the letter: This letter Ext. A6 itself is a sufficient indication that the building was proposed to be constructed not for the defendants but for the plaintiff himself. Exts. A6 (a) to (g) give a clear picture of bow the building was constructed and the manner in which the 1st defendant was informing the different stages of construction and the different needs of construction to the plaintiff. Plaintiff's definite case is that the plaintiff was being away, the construction matter was entrusted to the first defendant and to the 2nd defendant. I do not want to point out the crucial facts in all these letters. I want to refer to three more letters Ext. A6(a), (c) and (g). 16. Ext. A6(a) is dated 31-8-1965, about 21 days after Ext. A6. In this letter also, the second defendant gives the details about the progress of the construction of the building: Ext. A6(c) is more revealing. It is dated 24-6-1966. In this letter, the 2nd defendant informs the plaintiff that the terracing of the building was over on a Sunday and that there was no rain and everything has been done properly. She also speaks about the installation of the "gtoroxoo" and the placing of the rafters for the purpose of the roof. Several other minor details are stated in this letter. Particularly it has to be noted that it is a business like letter. It is a post card and everything is about the construction of the building. No other domestic matters are stated in this letter. The last of these letters is Ext. A6(g). This letter will dispel ail doubts as regards the point in question. In this letter, there is an enquiry as to the fact whether the amount from the General Provident Fund is payable or not immediately and that all attempts should be made to get that amount. It is further stated that if the amount is not obtained, it will create difficulties. In this letter, there is a reference with regard to the plucking of arecanuts. It is further stated that if the amount is not obtained, it will create difficulties. In this letter, there is a reference with regard to the plucking of arecanuts. All the facts stated 10 the letter would convince me that the first defendant was only managing the construction of the building and the funds were advanced by the plaintiff. In any one of these letters the defendant is not requesting for any financial help from the plaintiff. The conclusion of the courts below on this aspect of the matter is thoroughly unsatisfactory and this court cannot accept it. In the result I hold that the building has been constructed with the funds of the plaintiff himself and the building really belongs to the plaintiff. There cannot be any different legal conclusion on this matter. 17, Of course, perhaps, some amount might have been taken by the brother, the first defendant, for the construction of the building, since there is evidence in the case that at the time of construction, the first defendant also raised some amounts. Whether the said amount has been used for the construction of the building is a question, on which I have serious doubts. I entertain this doubt because lam of the view that the building was proposed to be constructed not for the 1st defendant but for the plaintiff himself, so, naturally the fund roust also come from the person for whom, the building has been constructed. 18. Now, I have to consider another question. Assume that the building has been constructed with the funds of the defendants in the property belonging to the plaintiff, what are the respective rights of the plaintiff and the defendants. The rule of English Law that whatever is attached to soil is part thereof and so the law will presume that it necessarily belongs to the owner of the land is not a rule of law applicable in India. English Law recognises that principle that anything built or growing on the land becomes part of the soil and so it automatically vests in the owner of the land. This rule is based on the maxim, quicquid inaedificatur solo solo cedit. English Law recognises that principle that anything built or growing on the land becomes part of the soil and so it automatically vests in the owner of the land. This rule is based on the maxim, quicquid inaedificatur solo solo cedit. Being a maxim, it need not necessarily be followed in India and the Privy Council bad occasion to say that this maxim is not applicable in Indian Law In India, a building or other fixture can be owned separately from the land on which it stands and can be the subject of a separate transfer. If a separate transfer is possible in regard to a fixture or a building in a property, it postulates that the building need not necessarily belong to the owner of the land although as a significant fact, in the generality of cases, it may belong to the owner of the land himself. In Challappan Nadar V. Krishnan Nair (1963 K.LT. 750), this court had occasion to consider this question and held that "the extent to which the authorities go in applying the rule that in India a building can be owned separately from the land, to a case where a person has unauthorisedly built on the land of another; is that where that person suffers a decree in ejectment, he must, at the option of The owner of the land, be entitled to demolish and take away the materials of the building leaving the land undamaged, or, in the alternative, be paid the value of his building as compensation". The leading case on this subject is Thakoor Chander Poramanick v. Ramdhone Bhattacharjee (1866) VI Weekly Reporter, 228 where it was said: "We have not been able to find in the laws or customs of this country any traces of the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a party of it, and is subjected to the same rights of property as the soil itself". "We think it clear that according to the usages and custom* of this country, buildings and other such improvements made on land do not. "We think it clear that according to the usages and custom* of this country, buildings and other such improvements made on land do not. by the mere accident of their attachment to the soil, become the property of the soil; and we think it'should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title of the owner be is entitled either to remove the materials restoring the land to the state in which it was before the improvement was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil the option of taking the building, or allowing the removal of the material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate be may possess". The second part of the above quote de-limits the right of a person, who has put up a building on somebody else's land. His right is attenuated and circumscribed right. Certainly, the owner of the land may not be the owner of the building, but the builder is also not the owner of the building in the comprehensive sense of the word building, not the building materials. The only right the builder can claim legitimately is a concessional right to take away the materials of the building or be may be paid compensation, the option being in the owner of the land. 19. Counsel for the respondents referred me to S.51 of the Transfer of Property Act. S.51 is based on the equitable maxim that be who seeks equity must do equity. S.51 deals with improvements made by bona fide holders under defective titles and has no application in the case before me. 20. The counsel for the respondent wanted to put his case on estoppel by encouragement or acquiescence. This is an accepted type of case which has deep roots in the English Law. The principle has been applied from the earliest times and has furnished complex situations where it was found a justification in the broad sense of justice. 20. The counsel for the respondent wanted to put his case on estoppel by encouragement or acquiescence. This is an accepted type of case which has deep roots in the English Law. The principle has been applied from the earliest times and has furnished complex situations where it was found a justification in the broad sense of justice. Shortly stating the principle governing these cases may be described as follows: - "...Where A. has a right or title which b» is in fact infringing under a mistaken belief that his acts are not acts of infringement at all, and A. is aware of his own title or right, and also aware of B.'s invasion of that title or right, and of his erroneous belief that he is not encroaching thereon, but is lawfully exercising rights of his own. and yet. with that knowledge, A. so conducts himself, or so abstrains from objection, protest, warning, or action, as to foster and maintain the delusion under which he knows that B, is labouring, and induce B to act to his prejudice on the faith of the acknowledgment to be implied from such conduct or inaction. A. is not permitted afterwards to assert his own rights against B, or contest B.'s rights against himself: The acts and conduct, or the silence and inaction, or both, which lead to these legal consequences, have been, in some of the authorities, described as "encouragement" (v); whilst in others, where passivity, "lying by, and the purely negative aspect of the party's attitude is more conspicuous than positive action, "acquiescence" has been the term preferred (w)i But whether it be called by either of these names, or is described eo nomine, as "estoppel", without using either of them (x), or the term "estoppel" is used in conjunction with, and as the equivalent of, "encouragement" (y), or "acquiescence" (z), the rule in question, as will be more exactly demonstrated presently, rests upon the doctrine of estoppel by representation, of which it is merely a form, instance, or application." 21. The learned counsel for the respondent referred me to two English decisions: Cairncross v. Larimer (3 LT 130) and De Bussche v. Alt (8 Ch. D. 286). Cairncross v. Larimer deals with estoppel by conduct and acquiescence in the course of conduct. The learned counsel for the respondent referred me to two English decisions: Cairncross v. Larimer (3 LT 130) and De Bussche v. Alt (8 Ch. D. 286). Cairncross v. Larimer deals with estoppel by conduct and acquiescence in the course of conduct. In this case, the House of Lords was dealing with a matter relating to members of a dissenting congregation as trustees acquiring some lands and buildings, a chappel and buildings thereon which were used by them for the congregation until 1852. The chappel and the buildings were built in 1827. Then the majority of the congregation including the ministers resolved to join another dissenting religious body, The union of the two congregations was completed. The minister was admitted a member of the church of the second dissenting body, and the first congregation was declared to belong to it. In 1856, members of the first congregation, who formed part of the minority, instituted the present suit declaring themselves to be the only surviving and continuing trustees and asking for a declaration that the chappel and buildings belonged to them and were held for their use and that of such others as adhered to the original doctrine of the first dissenting congregation They claimed to be entitled to recover the chappel and building sind to hold them in trust for those purposes. The House of Lords held that "the members of this minority bad, by their conduct in 1852, when they offered no opposition to what was proposed, intimated that they consented to what was done, which could not lawfully have been done without their consent, and, therefore, they were now estopped from maintaining their claim". In dealing with this case, the House of Lords further observed: "Therefore, in this case, first, the maxim will apply, violent* non fit injuria. In dealing with this case, the House of Lords further observed: "Therefore, in this case, first, the maxim will apply, violent* non fit injuria. and secondly., the doctrine will apply which is to be found., I believe., in the laws of all civilised nations, that if a man, either by words or by conduct, has intimated that be consents to an act which has been done and that he will offer no opposition to it although it could not have been lawfully done without his consent and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned; to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct". 22. Though this case propounds a proposition of law based on acquiescence, it is plain and clear that it is only an extension of the principle of estoppel. Similar is the position in the second case cited before me, namely De Bussche v. Alt. The counsel refered me to one of the paragraphs in the judgment which reads thus: "This brings us to the consideration of the contention of the defendant founded upon what has been termed "acquiescence" on the part of the plaintiff. It has been urged that the plaintiff ought not to be allowed to impeach the validity of the transaction in question or to follow the profits made out of it, after having, with knowledge that the defendant had become the purchaser of his vessel, assented to the transaction being completed on that footing, received by himself or his mortgagees through the bands of Oilman & Co. the purchase-money, allowed the defendant to incur risk and expense, which as agent he could not have been called upon to incur„ in obtaining payment from the Prince of Gf yshien, and, finally, to dissolve his connection with the firm of Alt & Co. - upon- as it is suggested but not proved-the footing of his freedom all outstanding claims) and to return to England and there reside for a considerable period without any intimation of proceedings being taken against him by the plaintiff. 23. The principle of the plea on the basis of acquiescence is clearly stated by Lord Cranworth in Ramsden v. Dyson (1866) LIZ I H.L. 129. 23. The principle of the plea on the basis of acquiescence is clearly stated by Lord Cranworth in Ramsden v. Dyson (1866) LIZ I H.L. 129. "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 be bad 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. But it will be observed that to raise such an equity, two things are required, first that the person expending the money supposes himself to be/building on his own land, and secondly that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights" i The elements necessary for applying the principle are not in existence in the present case. In the case at hand, the defendants contended that they have constructed the building in the property not with the silent permission of the plaintiff to construct the building, over which they claim title by adverse possession. The facts of these cases are dissimilar to the facts of the case at hand. I do not think that any assistance can be obtained from the dictum laid down in these cases. 24. Further here, as I said earlier, the building was constructed for the plaintiff himself and the defendants cannot validly make a claim for estoppel and acquiescence. The facts of these cases are dissimilar to the facts of the case at hand. I do not think that any assistance can be obtained from the dictum laid down in these cases. 24. Further here, as I said earlier, the building was constructed for the plaintiff himself and the defendants cannot validly make a claim for estoppel and acquiescence. In the case before me I am sure that the defendants built the house on the land of the plaintiff knowing it to be the plaintiff's end not supposing it to be his own to Narayan Guru Mandir v. Bholglr 6 Bom HCR AC 80, Couch C.J. quoted the passage of LordCranworth, I have already quoted and said: - "We cannot, however apply to cases arising in India the doctrine of toe English Law as to buildings, viz., that they should belong to the owner of the land. The only doctrine which we can apply is the doctrine established in India that the party so building on another's land should be allowed to remove the materials." This passage is extracted in AIR. 1929 P.C. 163 and followed in Premji Jivan v. Half Cassum Jamma Ahmed (ILR. 20 Bom. 298) and Abdul Razak v. Nandlal Sheolal (AIR. 1938 Nag. 506) 25. I have held that the building was constructed for the plaintiff and with the money of the plaintiff. But, there is some evidence to show that there is a possibility of the first defendant also contributing Rome amount for .the construction of the building. I do not want to cause any loss to the first defendant, who at any rate, was managing and supervising of the construction of the building. The defendants, particularly, the 2nd defendant was rendering real help and service to her brother-in-law in the matter of construction of the building though they are now on war-path. Taking into account all these circumstances, I suggested the counsel appearing for the plaintiff to pay a substantial amount to the defendants. The counsel on behalf of his client very willingly agreed that his client is prepared to pay an amount of Rs. 5,200/-which represents the amounts raised by the defendants at the time of construction of the building. I may at once add that there is no evidence that this amount has been used for the construction of the building. 26. The counsel on behalf of his client very willingly agreed that his client is prepared to pay an amount of Rs. 5,200/-which represents the amounts raised by the defendants at the time of construction of the building. I may at once add that there is no evidence that this amount has been used for the construction of the building. 26. In the result, I set aside the judgments and decrees of the courts below to the extent indicated below. I pass a decree allowing recovery of the plaint schedule item of properties both the building and the property-on payment of Rs. 5.200/-. by the plaintiff to the 1st defendant. The court below has decreed mesne profits at the rate of Rs.175/- per annum from the date of suit and thereafter for 3 years or till recovery of plaint item I whichever is earlier. I am not interfering with this part of the decree but confirm the same. There is a direction that the plaintiff has to pay court fees for mesne profits after decree before execution for realisation of mesne profits. Counsel for the plaintiff submitted that the court fee has already been paid. This matter has to be verified by the execution court. The appeal is allowed as above. No order as to costs.