Judgment : Defendant in O.S. No.369 of 1992, on the file of Subordinate Judge’s Court, Thanjavur, is the appellant. Suit filed by the plaintiff is one for declaration of title, recovery of possession and for mandatory injunction directing the defendant to remove all Constructions, pipes and other obstructions in the suit property, and for consequential reliefs. .2. The material averments in the plaint are as follows: .The schedule property is part of Resurvey No.342/ 2-A Item 38, which, according to the plaintiff is his ancestral property. He obtained the same through a final decree passed in that case. He was allotted 40 cents. Out of the 40 cents, portions have been sold, and the remaining portion is described in the plaint. It is his case that the plaintiff is the absolute owner. It is further averred that during the temporary absence of the plaintiff on 9. 1992, defendant removed the fence of the plaintiff towards western side and occupied portion of his property and put up construction. The action of the defendant is unauthorised. The suit was, therefore, laid for declaration of title and other reliefs mentioned above. 3. In the written statement, the title of the plaintiff was disputed. It is said that since he is not a party to the partition suit, the decree is not binding on him. Again, since the plaintiff did not take possession pursuant to the final decree, he cannot be said as enjoying the property. It is further said that long before the institution of the suit, there was a boundary separating the two properties of plaintiff and defendant. Before the institution of the suit, he applied to the local Authority to get licence for putting up construction. After inspection, licence was granted. Plaintiff who is a local resident, was a passive on looker and never protested to the construction being made. He spent more than Rs.70,000 for the construction. In paragraph 4, it is further said that ten years before institution of the suit, there was a separating fence between the two properties, and on the side of the fence, he has planted coconut saplings. After removing,some of the coconut saplings, the construction Was made. Since the plaintiff did not object to the construction, he proceeded with. the construction. Regarding the plan filed along with the plaint, ‘it is said that the same does not represent the. After removing,some of the coconut saplings, the construction Was made. Since the plaintiff did not object to the construction, he proceeded with. the construction. Regarding the plan filed along with the plaint, ‘it is said that the same does not represent the. real state of affairs and the same cannot be accepted. The mandatory injunction sought for in the plaint should not be granted. He said that in case the.Court finds that he has encroached into, the plaintiff’s property, he is prepared to pay compensation, and the. construction was made bonafide. .4. Both the courts below have found title in favour of the plaintiff. It further found that the defendant has encroached into the plaintiff’s property and has put up construction. The same was directed to be demolished and decree for recovery was also granted, v Even though the appellant seriously disputed the correctness and validity of the Comrnisiuoner’s Report, it was not seriously pursued before this Court. 5. It is against the concurrent judgments, this second appeal is filed. 6. At the time of admission of the second appeal, the following questions of law were raised for consideration: "(1) Whether the plaintiff is estopped from claims ing the relief of demolition of the building on the ground of acquiescence in the, construction? and (2) Whether the court below committed an error in.placing reliance upon the. report and plan of the Commissioner when the Commissioner, was not at all examined?" 7. Of the two questions raised, only one. question was argued by learned counsel for {he appellant, i.e., the principle of estoppeland acquiescence. Regarding the second question, as I said earlier, the same was not pursued by learned counsel. On merits, ‘I do not think the learned counsel will be justified in chal-lenging the Commissioner’s Report The main reason for disputing the correctness of the Commissioner’s Report was that the same was prepared ex parte. 8. It is seen that being an urgent fliatter, the Commissioner was appointed ex parte with a direction that he should issue notice to the parses before inspection. Pursuant to the order, the Commissioner issued notice to the defendapt and also leaded counsel for the plaintiff. ‘The defendant refused to accept notice.‘, The same was returned. It was thereafter, the Com-missioner prepared the plan and report. Pursuant to the order, the Commissioner issued notice to the defendapt and also leaded counsel for the plaintiff. ‘The defendant refused to accept notice.‘, The same was returned. It was thereafter, the Com-missioner prepared the plan and report. Once he has refused to accept the notice, he cannot contend before court that the same was prepared without notice to him. That is why learned counsel was not serious. in arguing question No.2. The further contention taken is that since the Commissioner has not been’ examined, the same cannot be treated as evidence. If the Commissioner has inspected the property after notice to the parties and has filed the Report in Court, jt is evidence in the case. O.26, Rule 10, C.P.C. provides for the same. The person who wants to challenge the correctness will have to substantiate the same and materials must be placed before court that the report is incorrect. No attempt was made by the appellant to examine the Commissioner. Therefore, that part of the contention also has to be repelled. 9. The main point urged by learned counsel is, regarding the principle of acquiescence. It is submitted that a decree for mandatory injunction should not be granted since the plaintiff was a silent spectator when the construction was going on. Having spent huge amounts for putting up constructions in the properrty asking him to demolish the same, cannot, be legally supported. 10. It has to be seen as to how far the said contention can be accepted in second appeal. 11. On going through the judgments of the courts below, I do not find that the appellant was serious in urging this question. Even though a contention is taken in the written statement regarding, acquiescence, he did not want any issue to be raised on that contention. Even before the lower appellate court though a ground was taken in the memorandum of appeal, this point was not pursued. In the judgment of the lower appellate court, the points to be decided have been specifically enumerated by it. If the appellant was serious in urging this question, the lower appelleate court would have considered it. That itself is sufficient to discard the cpntention now raised. 12. But, since learned counsel on both sides argued-that point also, I feel that it is my duty to adjudicate that point also. 13. If the appellant was serious in urging this question, the lower appelleate court would have considered it. That itself is sufficient to discard the cpntention now raised. 12. But, since learned counsel on both sides argued-that point also, I feel that it is my duty to adjudicate that point also. 13. Before going to the;facts of the case, we have to consider what is mean by ‘encouragement or acquiescence’. 14. In ‘Estoppel by Representation? - by Spencer Bower and Turner -.3rd Edition (Hirst Indian Reprint 1994), in Chapter XII, at page 285, regarding ‘Encouragement or Acquiescence’, the learned Authors have, after elaborating the case-law, considered as to what is meant by ‘acquiescence’, as understood in law. The relevant portion reads thus: "Regarded in the light of "acquiescence", the essentia elements of the form of estoppel under consideration have been precisely and lucidly stated by the Court of Appeal, in a memorable judgment, as follows: “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 the case already cited, is the proper sense of the term ‘acquiescence’, and in that sense it may be defined as acquiescence 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 conduct.” A good, though rather diffuse, statement of the rule, in terms of “encouragement”, rather than of “acquiescence”, is to be found in one of the judgments pronounced by Lord Eldon, L.C.: “this Court will not permit ai man knowingly, though but passively, to encourage another to lay out money under an erroneous impression of title; and me circumstance of looking on is in many cases as strong as using terms of encouragement; a lessor knowing and permitting those acts which the lessee would not have done, and the other must conceive he would not have done, but upon an expectation that the lessor would not throw an objection in the way of his enjoyment. Still, it must be put upon the party to prove that case by strong and cogent evidence; leaving no reasonable doubt that he acted upon that sort of encouragement... In order to give a person a larger interest in the property than he derives under the instrument making his title, it must be shown that with the knowledge of the person under whom he claims, he conceived he had that larger interest, and was putting himself to a considerable expense, unreasonable compared with the smaller interest; - and which the other party observed, and must have supposed incurred under the idea that he intended to give that larger interest, or to refrain from disturbing the other in the enjoyment”. Without using either the term “acquiescence” or the term “encouragement”, Lord Cranworth L.C stated the necessary conditions of the kind of estoppel now under consideration in the following terms. “If a stranger begins to build on my land, sup- posing it to be his own, and I, perceiving his mistake, abstain from setting him right, and, leave him to perservere 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 wholly impassive 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 his 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. 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. It follows as a corollary from these rules, or, perhaps, it would be more accurate to say that it forms part of them, that if my tenant builds on land which he holds under me, he does not thereby, in the absence of special circumstances, acquire any right to prevent me taking possession of the lands and buildings when the tenancy has determined. He knew the extent of his interest, and it was his folly to expend money upon a title which he knew would or might soon come to an end.” Finally, in a passage which is always referred to in this connection, and which, like the first of those already cited, is not limited to encroachments on land, but is framed with the utmost generality. Sir Edward Fry deduced from the previous authorities in his judgment in Willmott v. Barber the following condensed statement of the requisites of a good case of acquiescence or encouragement. In the first place, the plaintiff- in the case before him, the person said to have been “encouraged” happened to be 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... 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. 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 to call 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 do, either directly or by abstaining from asserting his legal rights." 15. If he does not, there is nothing to call 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 do, either directly or by abstaining from asserting his legal rights." 15. In ‘Equity and the Law of Trusts’ - by Philip H.Pettit - Fifth Edition (1985), at page 489, the learned Author considered the law regarding ‘Delay and Acquiescence’. The relevant passage reads thus: "Delay or laches, and a fortiori, acquiescence by the plaintiff in the infringement of his rights may disentitle him to an interlocutory injunction, particularly if the defendant has incurred expenditure in the meantime. The meaning of acquiescence has been discussed in a number of cases; it involves a knowledge by the plaintiff of his rights infringed by the defendant, and an encouragement or even merely passive inaction by the plaintiff on the strength of which the defendant has expended money or altered his position in violation of the plaintiff’s rights. The fact that the plaintiff has indicated that he is willing to accept the payment of a sum of money as the price of giving up his rights may well persuade the court not to grant an injunction, though it does not take away its jurisdiction to do so in a proper case, and a demand for payment will not constitute acquiescence if it is shown that the defendant had statutory power to do the thing complained of. If it is shown that the plaintiff took no steps to enforce a restrictive covenant on prior breaches, this may show acquiescence and an intent to abandon any building scheme there may be, in which case no injunction will be granted, but the mere fact that the plaintiff has waived his right to sue for breaches in the past, does not constitute acquiescence as to the future so as to prevent him from suing for some subsequent infraction, par-ticularly if the earlier infractions were trivial in character. Even acquiescence, however, may be explained away, for instance, where the plaintiff has been led to believe that the violation of his right would only be temporary, or where he had not at the earliest time the necessary documents to establish his right, or where be had been assured by the defendant mat steps were being taken to prevent continued violation of his rights; and if he has acquiesced in some infringement of his rights causing him only slight injury, this does not prevent him from obtaining an interlocutory injunction if the injury is subsequently considerably increased. Moreover no equity arises if the defendant expended money with knowledge of the true legal position." 16. In Maddanappa v. Chandramma, A.I.R. 1965 S.C. 1812: (1965)2 S.C.W.R. 644, the Supreme Court has stated mat the entire principle has been embodied in Sec.115 of the Evidence Act, and there is no question of equitable estoppel. It was held thus: "The law of estoppel by representation is confined to the provisions of Sec.115 and apart from the provisions of this section there is nothing like what is called "equitable estoppel" evolved by the English Judges. The provisions of Sec.115 are in a sense a rule of evidence. They are founded upon the well known doctrine laid in (1837) Ad and El 469. The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Consequently where one person makes a misrepresentation to the other about a fact he would not be shut out by the rule of estoppel if that other person knew the true state of facts and must consequently not have been misled by the misrepresentation. Further, the person setting up an estoppel against another must show that his position was altered by reason of the representation or conduct of the latter, otherwise even the general principle of estoppel cannot be invoked by him." On the basis of this principle enunciated by the Supreme Court and the various other decisions, let us consider whether the appellant has substantiated his case of acquiescence. 17. It is the case of the appellant that ten years before the institution of the suit, there was a fence and close to the fence, he planted coconut saplings. It is within that property, he has put up a building. 17. It is the case of the appellant that ten years before the institution of the suit, there was a fence and close to the fence, he planted coconut saplings. It is within that property, he has put up a building. If that contention is accepted, on that date, i.e., on the date when the fence was put up or when the coconut saplings were planted, the plaintiff cannot have any right. He obtained the right only long thereafter. If the defendant believed that that was the boundary separating the two properties, it cannot be said that that was on the basis of any representation made by plaintiff. 18. Before putting up construction, he did not make any attempt to measure the same. He was under the belief that it is his property. Naturally, there cannot be any question of acting on the representation of the plaintiff and the same has caused detriment to him. 19. What was the encouragement given by the plaintiff is not stated. The defendant did not have any mistake about his legal rights, nor has he a case that on the basis of the mistake on his part, he has spent money. The defendant has no case that before putting up the construction, plaintiff was also made known about his legal right, and about the limits of his property. In what way the plaintiff encouraged the putting up of the construction is also not explained. Mere silence by itself will not amount to representation unless a duty is cast on the plaintiff to speak about the limits. If so, plaintiff must also be made aware of the limits of the property. The case put forward by the defendant himself is that pursuant to the partition decree, plaintiff has not taken possession and, therefore, plaintiff is not entitled to recover the property. That means the limits of the ‘property were not clear and made known to the plaintiff. It is only on the basis of the title, plaintiff claims his right. When the defendant comes forward before court with a case that the plaintiff should not exercise his legal right, it is for him to explain why he should be denied that right. 20. Further the suit is not for mandatory injunction alone. The suit is one for declaration of title and recovery of possession. In that case, it is not discretionary relief that is granted. 20. Further the suit is not for mandatory injunction alone. The suit is one for declaration of title and recovery of possession. In that case, it is not discretionary relief that is granted. There is a great difference between a suit for mandatory injunction and a suit for declaration of title and recovery of possession, with a consequential relief of mandatory injunction. In the decision reported in Bodi Reddy v. Appu Gounden, (1970)2 M.L.J. 577 , M.M. Ismail, J., as he then was, has considered this question in minute detail. In that decision, the learned Judge said that in a suit for declaration of title and recovery of possession, relief of mandatory injunction is only for the benefit of the defendant, and if the defendant is not availing that benefit, what the plaintiff could get from Court is only recovery of possession. In mat case, it was held thus: "Whenever the plaintiff comes to the court and prays for possession of his property in the occupation of a trespasser, with the incidental relief of mndatory injunction directing the trespasser to demolish the construction put up by him, there is no question of the court exercising any discretion as to whether the mandatory injunction should be granted or award of damages alone would be sufficient and once the plaintiff has established his right to a decree for possession, that decree must follow irrespective of any consideration of laches, acquiescence, want of hardship or inconvenience to the plaintiff and any question of hardship to the defendant. The discretion is available only in suits where the plaintiff asks for an injunction against the defendant, not in respect of any trespasser for encroachment committed by the defendant on the plaintiff’s property itself, but in respect of any action done by the defendant on his own land Or on a common property or on a public property interfering with the enjoyment of the plaintiff of his own property. In a suit in which the plaintiff asks for relief on the basis of his title to the property, the only circumstance in which the plaintiff may be denied the relief is when the principle of equitable estoppel will apply and even men it is not as if the court declares the title of the plaintiff and denies the relief of possession to him in the exercise of the discretion, but prevents the plaintiff from asserting his title to the property itself on the basis that by his own conduct he had es: topped himself from asserting any such right. In a suit for recovery of possession, the prayer for mandatory injunction is only for the benefit of the defendant and if the defendant has any objection to the same, a mandatory injunction should not be granted, but the plaintiff is entitled to a decree for possession, liberty being given to the defendant to remove the construction within a specified period and in the event of his failure to do so, the plaintiff being authorised to remove the same at the expense of the defendant. Held, when the owner of a land files a suit for recovery of possession of his land from a trespasser who had built upon the land, with incidental prayer for mandatory injunction directing the defendant to demolish the building put up by him, the plaintiff (owner) is entitled to succeed once he has established his title and the fact that he has been in possession of the property within 12 years from the date of the suit and he is not prevented by the principle of equitable estoppel from asserting his title to the suit property. Simply because the plaintiff has prayed for a mandatory injunction as incidental to the relief of recovery of possession, there is no discretion vested in the Court to deny delivery of possession, to , the plaintiff and instead, toward compensation to him. Once the suit is within time, the doctrine of laches or acquiescence has no place to defeat tlie right of the plaintiff to obtain the relief in the suit. Unless acquiescence amounting to equitable estoppel is established, the plaintiff cannot be denied the relief of possession, which he has asked for." 21. Once the suit is within time, the doctrine of laches or acquiescence has no place to defeat tlie right of the plaintiff to obtain the relief in the suit. Unless acquiescence amounting to equitable estoppel is established, the plaintiff cannot be denied the relief of possession, which he has asked for." 21. Learned counsel for the appellant relied on the decision reported in R.S.Muthuswami Gounder v. A.Annamalai andothers, (1981)1 M.L.J. 258 : A.I.R. 1981 Mad 220, it is seen that the Maddanappa v. Chandramma, A.I.R. 1965 S.C. 1812: (1965)2 S.C.W.R. 644 was not cited before the learned Judge. The facts therein are entirely different. That was a case where the plaintiff was aware of the limits of his property, and on facts, their Lordships said that the silence prompted the defendant to put up the construction. Here, the contention of the defendant is otherwise. In mis connection, the decision reported Chhaganlal v. Narandas, A.I.R. 1982 S.C. 121: (1982) 1 S.C.C. 223 may be of some relevance. In that case,, their Lordships said that a person claiming the benefit of estoppel must show that he was not aware of the true state of affairs, and, if he was aware of the real state of affairs or had means of knowledge, there cannot be estoppel. In this case, before construction, a duty was cast on the defendant to know the limit of his property. He had the -means of knowledge, put the same was not availed. Their Lordships in that case held thus: "Estoppel deals with questions of facts and not of right. A man is not estopped from asserting a right which he had said that he will not assert. It is also a well-known principle that there can be no estoppel against a statute. To bring the case . Their Lordships in that case held thus: "Estoppel deals with questions of facts and not of right. A man is not estopped from asserting a right which he had said that he will not assert. It is also a well-known principle that there can be no estoppel against a statute. To bring the case . within the scope of estoppel as defined in Sec.115: (1) there must be a representation by a person or his authorised agent to another in any form, a declaration, act or omission, (2) the representation must have been of the existence of a fact and not of promise de futuro or intention which might or might not be enforceable in con-tract; (3) the representation must have beep meant to be relied upon; (4) there must have been belief on the part of the other party in its truth; (5) there must have been action on the faith of that declaration, act or omission, that is to say, the declaration act or omission, must have actually caused another to act on the faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) only to the person to whom representation was made or for whom it was designed can avail himself of it. A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee." The conditions enunciated in that case are also not satisfied in this case. 22. Substantial question of law No.l is also, therefore, found against the appellant. The second appeal is dismissed. No costs.