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2012 DIGILAW 494 (HP)

Mange Ram v. Hem Lata Bansal

2012-09-04

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, J. Since common questions of law and facts are involved in both the Regular Second Appeals, the same were taken up together for hearing and are being disposed of by a common judgment. 2. These Regular Second Appeals are directed against the judgment and decree passed by the learned District Judge, Solan in Civil Appeal No. 64 of 1998 titled Mange Ram versus Mohinder Kumar Bansal and in Civil Appeal No. 63 of 1998, titled Mange Ram versus Hem Lata dated 27.12.2001. 3. Material facts necessary for the adjudication of these Regular Second Appeals are that appellant-plaintiff (hereinafter referred to as the ‘plaintiff’ for convenience sake) instituted a civil suit No. 213/1 of 1991 against respondent-original defendant (Mohinder Kumar Bansal) (hereinafter referred to as the ‘defendant’ for convenience sake) for mandatory injunction. He also instituted civil suit No. 214/1 of 1991 against respondent-defendant (Smt. Hem Lata) (hereinafter referred to as ‘defendant’ for convenience sake) for mandatory injunction. Learned trial court clubbed both the civil suits and decided the same by a common judgment dated 30.7.1998. Plaintiff in civil suit No. 213/1 of 1991 has prayed for demolition of the retaining wall illegally constructed by Mohinder Kumar Bansal over the land bearing Khasra No. 1393/1074/220/1 measuring 11 square meters (hereafter referred to as ‘the ‘suit land’). Plaintiff claimed himself to be the owner of the land. According to plaintiff, defendant and his wife Hem Lata Bansal are having land adjacent to the suit land and wife of the defendant has also constructed house on the adjoining land. According to plaintiff, in the process of construction of the house, defendant has encroached upon 11 square meters of land by raising a retaining wall. He came to know about the encroachment and thereafter obtained the demarcation on 28.6.1991. It is averred that in the year 1982, the-then owner Smt. Mathi widow of late Sh. Karmia and Mannu son of Sh. Kahnu had objected to the alleged encroachment. The matter was reported to the police but due to influence of the defendant, the police did not take any action. Plaintiff has made request to the defendant to remove the alleged encroachment by removing the retaining wall; however, defendant has refused to do so. It is in these circumstances, plaintiff has instituted civil suit No. 213/1 of 1991 against defendant Mohinder Kumar Bansal. 4. Plaintiff has made request to the defendant to remove the alleged encroachment by removing the retaining wall; however, defendant has refused to do so. It is in these circumstances, plaintiff has instituted civil suit No. 213/1 of 1991 against defendant Mohinder Kumar Bansal. 4. Second civil suit bearing No. 214/1 of 1991 was between the plaintiff and defendant Hem Lata Bansal. Hem Lata Bansal is the wife of Mohinder Kumar Bansal. According to the plaintiff, defendant Hem Lata has encroached upon the suit land measuring 8 square meters denoted by Khasra No. 1382/215/1. He came to know about the encroachment when the land was demarcated by the revenue officer. Previous owner reported the matter to the police in the year 1982, however, the police did not take any action against the defendant. It is in these circumstances, plaintiff instituted civil suit No. 214/1 of 1991 against the defendant for mandatory injunction by demolishing construction raised by the defendant. 5. Defendants Mohinder Kumar Bansal and Smt. Hem Lata Bansal have filed the written statements in both the civil suits. According to them, they have raised the construction long back. According to them, it is the plaintiff who has started encroaching upon the path/passage which leads to the house of defendants. According to them, they have raised construction after getting the land demarcated and since the construction of the defendants was existing for the last number of years, therefore, the suits could not be filed against them. They have also pleaded that the demarcation as alleged by the plaintiff was not taken in their presence. Thus, the same was not binding upon them. 6. Learned trial court framed the issues on 11.3.1992. He dismissed both the civil suits on 30.7.1998. Plaintiff filed Civil Appeal Nos. 63 of 1998 and 64 of 1998 against the defendants before the learned District Judge, Solan. Learned District Judge dismissed both the appeals on 27.12.2001. Hence, these Regular Second Appeals against the judgment dated 27.12.2001. These appeals were admitted on the following substantial questions of law: 1. Whether the first appellate court has committed an error in rejecting the application for amendment of the plaint as prayed for by the plaintiff-appellant? 2. Learned District Judge dismissed both the appeals on 27.12.2001. Hence, these Regular Second Appeals against the judgment dated 27.12.2001. These appeals were admitted on the following substantial questions of law: 1. Whether the first appellate court has committed an error in rejecting the application for amendment of the plaint as prayed for by the plaintiff-appellant? 2. Whether the learned first appellate court has erred in not considering the report of the Local Commissioner obtained by it during the pendency of appeal before it especially in view of the fact that the objections to such report preferred by the respondent-defendant were dismissed? 3. Whether the courts below have erred in applying the principle of estoppel in denying the relief to the plaintiff appellant? 7. Mr. Bhupender Gupta, learned Senior Advocate has vehemently argued that both the courts below have misread and misconstrued the oral as well as documentary evidence. According to him, it has been conclusively proved that the defendants have encroached upon the land and in these circumstances decree for mandatory injunction was to be passed for the demolition of construction and in the alternative, decree for compensation was to be passed in favour of the plaintiff. 8. Mr. Rajnish K. Lal has supported the judgment and decree passed by both the courts below. According to him, plaintiff has acquiesced the raising of construction by the defendants, thus, he was estopped from filing the suits. He then argued that since the plaintiff has not raised any objection at the time of construction, neither the decree for mandatory injunction nor compensation could be passed against his clients. 9. I have heard the learned counsel for the parties and have perused the records carefully. Substantial question of Law No.1: 10. An application under order 6 rule 17 of the Code of Civil Procedure was filed by the plaintiff only in civil suit No. 63 of 1998, titled Mange Ram versus Hem Lata. The same was rejected by the District Judge on 13.12.2001 by passing a detailed order. Principal ground taken by the plaintiff in application under order 6 rule 17 of the Code of Civil Procedure filed in Civil Appeal No. 63 of 1998 was that the Local Commissioner in the demarcation proceedings has found more land than what was stated in the plaint filed before the trial court. The application was contested by the defendant. Principal ground taken by the plaintiff in application under order 6 rule 17 of the Code of Civil Procedure filed in Civil Appeal No. 63 of 1998 was that the Local Commissioner in the demarcation proceedings has found more land than what was stated in the plaint filed before the trial court. The application was contested by the defendant. According to her, the report of the Local Commissioner locating the land to be in ownership of the plaintiff was not final. Thus, the application could not be allowed. Plaintiff wanted to include two other khasra numbers measuring 3 square meters and 12 square meters, respectively in the plaint. The suit would have definitely changed the subject matter of the civil suit initially filed by the plaintiff. Report of the Local Commissioner had not attained finality. It is in these circumstances, learned first appellate court has refused the prayer to amend the plaint vide detailed order dated 13.12.2002. He has come to a right conclusion that proposed amendment, if any, allowed would have altered the cause of action. The application has been decided on the basis of well settled principles governing the amendment. Substantial questions of Law No.2 and 3: 11. Since both the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 12. Plaintiff has filed separate application in civil appeal No. 63 of 1998 under order 26 rule 9 read with order 41 rule 27 of the Code of Civil Procedure. Application was contested by the defendants. First appellate court has passed detailed order while allowing the application under order 26 rule 9 of the Code of Civil Procedure on 22.3.1999 whereby Tehsildar was appointed as Local Commissioner. Objections were filed by the defendants to the report filed by the Local Commissioner, to which reply was also filed by the plaintiff. In civil appeal No. 64 of 1998 also an application was filed under 26 rule 9 read with order 41 rule 27 of the Code of Civil Procedure. The same was allowed on 13.3.2001 and the Local Commissioner was appointed. Local Commissioner has submitted the report to the first appellate court. The objections were filed by the defendant, to which reply was filed by the plaintiff. According to the reports, defendants have encroached upon the land in question. The same was allowed on 13.3.2001 and the Local Commissioner was appointed. Local Commissioner has submitted the report to the first appellate court. The objections were filed by the defendant, to which reply was filed by the plaintiff. According to the reports, defendants have encroached upon the land in question. The Court has gone through both the reports. The Local Commissioner has complied with the instructions issued by the Financial Commissioner, Himachal Pradesh while undertaking demarcation of the suit land involved in both the appeals. Defendants were also associated during the demarcation of the suit land. Learned counsel appearing on behalf of the parties had made prayer on 6.9.2001 that the reports of the Local Commissioner be dealt with at the time of final hearing. 13. As far as the earlier report is concerned, the same has rightly been over looked by the courts below since the same was not carried out by a Revenue Officer in presence of the parties. It would be pertinent to mention at this stage that Hem Lata also filed CMPM(O) No. 10 of 1999 against the appointment of Local Commissioner in this Court. The same was rejected by the Court on 26.4.1999. The Tehsildar has shown the encroachment in the Musabi. 14. PW-2 Jeet Singh, Kanungo has carried out the demarcation earlier and has proved the same vide Ex.PW-2/A. PW-3 plaintiff has deposed that the defendant Mohinder Kumar has encroached upon the land measuring 11 square meters and other defendant Hem Lata has encroached upon the land measuring 8 square meters. He has got the demarcation of the land carried on 2.6.1991. According to him, parties were present at the time of demarcation. In his cross-examination, he has admitted that the construction was raised before he purchased the land. According to him, different passages have also been constructed. He has admitted that no demarcation was carried when he purchased the land. According to him, Hem Lata Bansal has constructed building on his land measuring 8 square meters. He had also approached the Municipal Committee about the construction raised by defendant Hem Latta. According to him, Mohinder Kumar has raised breast wall on his land measuring 11 meters, which is 1½ feet in width and 3 meters in length. According to him, Hem Lata Bansal has constructed building on his land measuring 8 square meters. He had also approached the Municipal Committee about the construction raised by defendant Hem Latta. According to him, Mohinder Kumar has raised breast wall on his land measuring 11 meters, which is 1½ feet in width and 3 meters in length. The passage to the house of Hem Lata was constructed in the year 1980 and the defendant started construction in the year 1981 and he had not raised any objection to the same. 15. PW-4 Mahavir Singh has deposed that the demarcation was carried by the Kanungo on 2.6.1991. According to him, as per report, the defendants have encroached upon the land of the plaintiff. He has also admitted that the houses were already constructed. 16. Plaintiff has also appeared in rebuttal. He has given the reference to the sale deeds executed in October, 1982 and 30.3.1991. He has also made reference to Ex.DW-1/A. He has also admitted that he has also purchased the land from the same owner from whom the land has been purchased by the defendants. 17. Defendant Hem Lata has appeared as DW-1. According to her, when they raised construction, plaintiff raised dispute and thereafter they got the land demarcated and an agreement was arrived at between the parties vide Ex.DW-1/A. She has also admitted that they had not raised any objection against the earlier report filed by Jeet Singh, Kanungo. 18. DW-2 Laxmi Devi has deposed that defendant started raising the construction after proper demarcation. DW-3 Saran Dass has deposed that Ex.DW-1/A was prepared in his presence. This is the entire oral as well as documentary evidence led by the parties. 19. Both the courts below have non-suited the plaintiff on the ground of acquiescence, estoppel and waiver. Both the courts have given findings that the plaintiff has not raised any objection at the time when the construction was being raised by the defendant. Reference has been made to statement of PW-3 to come to the conclusion that the construction was already there before the plaintiff purchased the property. Plaintiff in this case has got the area demarcated from PW-2 Jeet Ram. He has found the encroachment made by defendants. The courts below have rightly over looked the demarcation report as the same has been found in violation of the instructions issued by the Financial Commissioner, Himachal Pradesh. Plaintiff in this case has got the area demarcated from PW-2 Jeet Ram. He has found the encroachment made by defendants. The courts below have rightly over looked the demarcation report as the same has been found in violation of the instructions issued by the Financial Commissioner, Himachal Pradesh. The first appellate court in two separate applications filed by the plaintiff under order 26 rule 9 read with order 41 rule 27 of the Code of Civil Procedure has passed detailed orders on 22.3.1999 and 13.3.2001 whereby Tehsildar was appointed as Local Commissioner. Local Commissioner has submitted the reports. The Court has gone through the same. The demarcation has been carried by the Tehsildar strictly in accordance with the instructions issued by the Financial Commissioner, Himachal Pradesh. He has carried out the demarcation in the presence of the parties. He has shown the same separately in Musabi. Defendants have filed objections to the reports filed by the Local Commissioner, to which reply was also filed by the plaintiff. The first appellate court was required to go into the reports furnished by the Local Commissioner. He has not discussed this aspect at length. He has observed that since the plaintiff has not raised any objection when the construction was raised by the defendants, these reports could not be looked into. He has erred in law. Plaintiff has got the area demarcated in the year 1991. According to his statement, earlier owner has raised the objection of encroachment made by them. He has reported the matter to the Municipal Committee. Thus, it cannot be said that he was not vigilant in protesting his right. He was only required to take steps including getting the land demarcated to ascertain whether the defendants have raised the encroachment or not. 20. What is estoppel has been succinctly explained by their Lordships of the Hon’ble Supreme Court in R.S. Maddanappa (deceased) by his LRs versus Chandramma and another, AIR 1965 SC 1812 . Their Lordships have held that conduct was not sufficient to justify inference of estoppel. Their Lordships have further held that when person concerned knows true position relating to title in property in his possession, he cannot plead that he was induced to hold erroneous belief by reason of conduct of real owner of that property. Their Lordships have held as under: “6. We will consider the question of estoppel first. Their Lordships have further held that when person concerned knows true position relating to title in property in his possession, he cannot plead that he was induced to hold erroneous belief by reason of conduct of real owner of that property. Their Lordships have held as under: “6. We will consider the question of estoppel first. The conduct of the first defendant from which the learned counsel wants us to draw the inference of estoppel consists of her attitude when she was served with a notice by the plaintiff, her general attitude respecting Bangalore properties as expressed in the letter dated 17th January, 1941 written by her to her stepmother and the attestation by her and her husband on 3-10-1944 of the will executed on 25th January, 1941 by Maddanappa. In the notice dated 26th January, 1948 by the plaintiff’s lawyer to the first defendant it was stated that the plaintiff and the first defendant were joint owners of the suit properties which were in the possession of their father and requested for the co-operation of the first defendant in order to effect the division of the properties. A copy of this notice was sent to Maddanappa and he sent a reply to it to the plaintiff’s lawyers. The first defendant, however, sent no reply at all. We find it difficult to construe the conduct of the first defendant in not replying to the notice and in not cooperating with the plaintiff in instituting a suit, for obtaining possession of the properties as justifying the inference of estoppel. It does not mean that she impliedly admitted that she had no interest in the properties. It is true that in Ex. 15, which is a letter sent by her on 17-1-1941 to her step-mother she has observed thus: "I have no desire whatsoever in respect of the properties which are at Bangalore. Everything belongs to my father. He has the sole authority to do anything .... We give our consent to anything done by our father. We will not do anything." But even these statements cannot assist the appellants because admittedly the father knew the true legal position. That is to say, the father knew that these properties belonged to Puttananjamma, and that he had no authority to deal with these properties. We give our consent to anything done by our father. We will not do anything." But even these statements cannot assist the appellants because admittedly the father knew the true legal position. That is to say, the father knew that these properties belonged to Puttananjamma, and that he had no authority to deal with these properties. NO doubt, in his written statement Maddanappa had set up a case that the properties belonged to him by virtue of the declaration made by Puttananjamma at the time of her death, but that case has been negatived by the courts below. The father’s possession must, therefore, be deemed to have been, to his knowledge, on behalf of the plaintiff and the first defendant. There was thus no possibility of an erroneous belief about his title being created in the mind of Maddanappa because of what the first defendant had said in her letter to her stepmother. 7. In so far as the attestation of the will is concerned, the appellants’ position is no better. This ’will’ purports to make a disposition of the suit properties along with other properties by Maddanappa in favour of defendants Nos. 3 to 8. The attestation of the will by the first defendant and her husband, would no doubt affix them with the knowledge of what Maddanappa was doing, but it cannot operate as estoppel against them and in favour of defendants Nos. 3 to 8 or even in favour of Maddanappa. The will couId take effect only upon the death of Maddanappa and, therefore, no interest in the property had at all accrued to the defendants Nos. 3 to 8 even on the date of the suit. So far as Maddanappa is concerned, he, as already stated, knew the true position and therefore, could not say that an erroneous belief about his title to the properties was created in his mind by reason of the conduct of the first defendant and her husband in attesting the document. Apart from that there is nothing on the record to show that by reason of the conduct of the first defendant Maddanappa altered his position to his disadvantage. 8. Mr. Apart from that there is nothing on the record to show that by reason of the conduct of the first defendant Maddanappa altered his position to his disadvantage. 8. Mr. Venkatarangaiengar, however, wanted us to hold that the law of estoppel by representation is not confined to the provisions of s. 115 of the Evidence Act, that apart from the provisions of this section there is what is called "equitable estoppel" evolved by the English Judges and that the present case would come within such "equitable estoppel". In some decisions of the High Courts reference has been made to "equitable estoppel" but we doubt whether the court while determining whether the conduct of a particular party amounts to an estoppel, could travel beyond the provisions of Section 115 of the Evidence Act. As was pointed out by Garth C.J. in Ganges Manufacturing Co. v. Saurjmull(1) the provision of s 115 of the Evidence Act are in one sense a rule of evidence and are rounded upon the well known doctrine laid down in Pickard v. Sears(2) in which the rule was stated thus: "Where one by his word or conduct willfully causes another to believe for the existence of a certain state of thing and, induced him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the first, time." The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Therefore, 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 know the true state of facts and must consequently not have been misled by the misrepresentation.” 21. What is acquiescence or waiver has been explained succinctly by a Division Bench of Patna High Court in Dr. Abdul Khair versus Miss Shella Myrtla James and another, AIR 1957 Patna 308. The Division Bench has held that there can be no acquiescence or waiver in a case where both the parties are unaware of their rights in the disputed property. Abdul Khair versus Miss Shella Myrtla James and another, AIR 1957 Patna 308. The Division Bench has held that there can be no acquiescence or waiver in a case where both the parties are unaware of their rights in the disputed property. The Division Bench has also held that generally speaking if a party having an interest to prevent an act being done has full notice of its having been 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. In this case, plaintiff and defendants were plot owners. In constructing their houses, the defendants made encroachment in the land of plaintiff. None of the parties knew their respective rights in regard to the encroached land and both were labouring under some sort of mistake about their respective right in the said land. It is only when defendants’ construction progressed for several months, and when a boundary dispute cropped up between the parties and when the plaintiff measured the land that he learnt that the portion on which the defendants were constructing the building belonged to him and immediately thereafter he brought a suit. The Division Bench has also held that no equity has arisen in favour of the defendants nor any equitable rights have sprung up in their favour which can prevent the plaintiff in the circumstances of the case to claim possession by demolition of the building on the encroached portion of his land. The Division Bench has further held that where the defendants encroached by building on the land belonging to the plaintiff and no acquiescence on the part of the plaintiff is established a decree for compensation in lieu of ejectment is contrary to law. The Division Bench has held as under: “(9) In order to answer the first question, as to whether on the finding of the Court of appeal below that both thep arties were labouring under some sort of mistake about their respective rights in regard to the encroachment portion of the land, acquiescence has, in law, been proved, it is necessary at first to know the principles underlying the rules of acquiescence or waiver. It is well established that parties cannot be said to acquiesce in the claims of others unless they are fully cognizant of their right to dispute them, and that, where acquiescence is relied on, it must be shown that the person acquiescing was aware of the matter in which he acquiesced, and of the effect of such acquiescence. Recognition, like waiver, must be an intentional act with knowledge: - “Bhonu Lal Chowdhury v. W.A. Vincent', AIR 1922 Pat 619 (FB) A(A). This principle is further reinforced by a decision of the Judicial Committee in 'Premila Devi v. Peoples Bank of Northern India, Ltd.' AIR 1938 PC 284 (B), which followed- “Spachkman v. Evans', (1868) 3 HL 171 (c) ; and ''Trvine v. The Union Bank of Austraila,' (1877) 2 ac 366 (D). Lord Romer, in delivering the judgment of the Board, observed that “there can in truth be no ratification without an intention to ratify, and there can be no intention to ratify an illegal act without knowledge of the illegality.” The learned noble Lord further quoted with approval what Lord Chelmsford said in ''Spack-man v. Evans (C), (supra). “To render valid an act of the directors of a company which is ultra vires, the acquiescence of the share-holders must be of the same extent as the consent which would have given validity from the first, viz., the acquiescence of each and every member of the company. Of course, this acquiescence cannot be presumed unless knowledge of the transaction can be brought home to every one of the remaining share-holders.” By knowledge of the transaction is clearly meant knowledge of the invalidity of transaction. From the principles laid down in the above cases, therefore, it is clear that there can be no acquiescence or waiver in a case where both parties are unaware of their rights in the disputed property, both are labouring under some mistake about their respective rights in regard to such land. Unless both are fully cognizant of their right to dispute them, the parties cannot be said to acquiesce in the claims of the other. Where, therefore, acquiescence is relied on, it must be shown that the person acquiescing was aware of the matter in which he acquiesced, and of the effect of such acquiescence. In my judgment, therefore, on the finding, there can be no acquiescence or waiver on the part of the plaintiff. 11. Where, therefore, acquiescence is relied on, it must be shown that the person acquiescing was aware of the matter in which he acquiesced, and of the effect of such acquiescence. In my judgment, therefore, on the finding, there can be no acquiescence or waiver on the part of the plaintiff. 11. This question of, what is called, 'building equity' has been considered by this Bench also in', 1956 Pat LR 498: ( AIR 1957 Pat 303 ) (F). My Lord the Chief Justice, who delivered the judgment of the Court, and with whom I agreed, while considering the effect of S. 191 of the Bihar and Orissa Municipal Act (VII of 1922), observed: “This section embodies a principle somewhat similar, though not identical, to the equitable principle laid down in -'Plimmer v. Welligntion Corporation', (1884) 9 AC 699 (G). I have already said, the sanction of the 2nd of February, 1955, maybe illegal in certain respects; but the Patna City Municipality or the Patna Municipal Corporation has no power to revoke these orders after the erection of the building had commenced. The reason is that equitable rights have sprung up in favour of respondent No.1 and and statutory protection has been granted to her against any action on the part of the Patna Corporation or the Patna City Municipality.” In my opinion, no such building equity has arisen in favour of the defendants, no any equitable rights sprung up in their favour, which can prevent the plaintiff, in the circumstances of the case, to claim possession by demolition of the building on the encroached portion of his land. In order to raise such an equity in favour of the defendants, the two conditions laid down in that case of 'Ramsden v. Dyson', (E) (supra), must be established; but in the present case, none of two conditions which must co-exist is present, because on the finding of the court of appeal below none of the parties knew their respective rights in regard to the encroached land, and, both were labouring under some sort of mistake about their respective right in the said land. Only when the defendants' construction had progressed for several months, and when a boundary dispute cropped up between the parties, and when the plaintiff measured the land that he learnt that the portion on which the defendants were constructing the building belonged to him, and, immediately thereafter he brought a suit for possession. The plaintiff's right to recover the encroached portion arises out of his ownership. It is well established that if a stranger builds on the land of another, believing it to be his own, the owner is entitled to recover the land, and the party building on the land of another is allowed to remove the building unless there are special circumstances amounting to a standing by so as to induce the belief that the owner intended to forgo his right, or to an acquiescence in his building on the land. No such special circumstances were found to exist in the present case. In my opinion, therefore, as no finding of acquiescence or waiver can be founded on the finding of the court of appeal below that both the parties were labouring under some sort of mistake about their respective rights in regard to the encroached portion of the land, the plaintiff is not estoppsed from claiming vacant possession of the encroached land by demolition of the building standing thereon. 12(a) Estoppel is a rule of evidence, and the general rule is enacted in S. 115 of the Evidence Act. This is rule of estoppel by conduct as distinguished from record which constitutes the bar of res judicata. The exposition of the rule of estoppel embodied in S. 115 of the Indian evidence Act by Lord Shand in “Sarat Chunder Day v. Gopal Chunder Lala' 19 Ind. App. 203 at page 215 (H), may be quoted in extenso. This principle was followed in 'Sir L. E. Ralli', 52 Ind App 178: (AIR 1925 PC 146) (J), in which their Lordships of the Judicial Committee recorded their full concurrence with the principle laid down there. Lord Shand observed: “ The law of this country gives no countenance to the doctrine that in order to create estoppel the person whose acts or declarations induced another to act in a particular way must have been under no mistake himself, or must have acted with an intention to mislead or deceive. Lord Shand observed: “ The law of this country gives no countenance to the doctrine that in order to create estoppel the person whose acts or declarations induced another to act in a particular way must have been under no mistake himself, or must have acted with an intention to mislead or deceive. What the law and the Indian Statute mainly regard is the position of person who was induced to act, and the principle on which the law and the statute rest is, that it would be most inequitable and unjust to him, that if another, by a representation made, or by conduct amounting to a representation has induced him to act as he would not otherwise have done, the person who made the representation, should be allowed to deny or repudiate the effect of his former statement, to the loss and injury of the person who acted on it. It if the person who made the statement did so without full knowledge, or under error, sibi imputet. It may, in the result be unfortunate for him, but it would be unjust, even though he acted under error, to throw, the consequences on the person who believed his statement and acted on it as it was intended he should do.” The doctrine will apply, that if a man, either by words or by conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not hav been alwfully done wihtout 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. This general principle is thus stated by the learned Lord Chancellor (Lord Campbell), with the full concurrence of Lord Kingsdown, in the case of – 'Cairncross v. Lorimer', (1860) 3 Macq 827 at 829 (K), which was quoted with approval by Lord Shand in 'Sarat Chuner Day v. Gopal Chunder Laha', (H) (supra). This general principle is thus stated by the learned Lord Chancellor (Lord Campbell), with the full concurrence of Lord Kingsdown, in the case of – 'Cairncross v. Lorimer', (1860) 3 Macq 827 at 829 (K), which was quoted with approval by Lord Shand in 'Sarat Chuner Day v. Gopal Chunder Laha', (H) (supra). In my opinion, therefore, generally speaking if a party having an interest to prevent an act being done has full notice to its having been 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. An estoppel does not itself give a cause of action, it prevents a person from denying a certain state of affairs. (15) The next important question for consideration is, is the decree for compensation in lieu of the ejectment, awarded by the first court of appeal, which has been affirmed by Mr. Justice Misra, correct in law? In my opinion such a decree is contrary to law. When the first court of appeal found in agreement with the first court, that the land in question belonged to the plaintiff, such being the findings as to the property in the land, the courts could not compel the plaintiff to part with his legal rights and accept compensation against will, howsoever reasonable it might appear to be. A similar question came up for consideration before the Bombay High Court in two cases, - 'Govind Vankaji Kulkarni v. Sadashiv Bharma Shet', ILR 17 Bom 771 (L); and – Jethalal Hirachand v. Lalbhai Dalpatbhai', ILR 28 Bom 298 (M). A similar question came up for consideration before the Bombay High Court in two cases, - 'Govind Vankaji Kulkarni v. Sadashiv Bharma Shet', ILR 17 Bom 771 (L); and – Jethalal Hirachand v. Lalbhai Dalpatbhai', ILR 28 Bom 298 (M). In the latter case, in which the first case was affirmed, Chandavarkar J., while considering the finding of the learned District Judge that the plaintiff was entitled to no more than compensation, because there has been on the part of the defendant a technical encroachment in as much as a foot, or so of the plaintiffs ground had been taken to support the wall which divided the properties of the parties observed: “But if the foot or so of ground so taken by the defendant belongs to the plaintiff the act of the defendant is one of continuous trespass on the plaintiff's property and the wrongdoer cannot be heard to say that he has deprived the owner of only a little and that of not much use to the latter. Too allow such a defence and on the strength of it to award compensation is to let a trespasser put a value of money's worth on another man's property and deprive him of its against his will”. His Lordship went on further to observe: “But where a man builds on another man's property against the will of the latter or without his consent, the invasion, is practically one where pecuniary compensation cannot be regarded as not only deprived of the property but he is also entitled to make. How are the damages to be estimated in such a case and how can it be said that an award of compensation can do justice to the owner who leases the property, and all opportunity besides of using it for purposes which he may consider profitable, on beneficial to himself.” His Lordship for the above principle relied on (N). I respectfully agree with his Lordship Chandavarkar J., with his above statement of law on the subject, and consider that his Lordship has laid down the correct statement of law on the point. Relief by way of compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. On no principle of law or equity is that allowable. Relief by way of compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. On no principle of law or equity is that allowable. In my opinion therefore, the second question posed by me must also be answered in the negative by saying that the plaintiff cannot in law or equity be awarded compensation in lieu of ejectment to which he is legally entitled. His right to recover the encroached land arises out of his ownership and he is no estopped, either by acquiescence or waiver, to estoppel by conduct, from claiming his right to possession.” 22. The Division Bench of Patna High Court in Sirinivas Fogla and others versus Satyanand Gupta and others, AIR 1969 Patna 64 have held that unless both the parties are cognizant of their rights, there can be no acquiescence. The Division Bench has held as under: “9................ The cases relied upon by him, namely, AIR 1965 Pat 262 , Khadimul Haque v. Bharat Singh v. Mt. Bhagirathi are distinguishable and do not support the contention made on behalf of the appellant. Mr. Prem Lall also relied upon the cases Sarat Chunder Day v. Gopal Chunder Laha (1892) 19 Ind. App. 203 (PC), Sir L. E. Ralli v. A. R. Forbes, ILR 1 Pat 717=(AIR 1922 Pat 258) and Dr. Abdul Khair v. Miss Sheilla Myrtla James, AIR 1957 Pat 308 in support of his contention that if a party having an interest to prevent an act being done acquiesces in its 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. But there can be no acquiescence or waiver in a case where both parties are unaware of their rights in the disputed property. Unless both are fully cognizant of their right to dispute them, the parties cannot be said to acquiesce in the claims of the other. In the instant case there is nothing to show that Raghunandan Sao or the plaintiff was aware that the unilateral acts of the defendants would change the nature of the rights. Unless both are fully cognizant of their right to dispute them, the parties cannot be said to acquiesce in the claims of the other. In the instant case there is nothing to show that Raghunandan Sao or the plaintiff was aware that the unilateral acts of the defendants would change the nature of the rights. Therefore, no building estoppel or equity has arisen in favour of the defendants which can prevent the plaintiff in circumstances of the case to claim redemption of the suit houses.” 23. Mr. Rajnish K. Lal has relied upon R.S. Muthuswami Gounder versus A. Annamalai and others, AIR 1981 Madras 220 whereby the learned Single Judge has explained the principle of acquiescence and the plaintiff was held entitled only to decree for compensation instead of decree for mandatory injunction of demolition of the construction made by the defendant on the suit land. Learned Single Judge has held as under: “20. In the case which came up for consideration before me, the respondent-plaintiff had not done anything when the appellant-defendant was putting up a portion of his main building on a portion of the trespassed property and sinking a major portion of the well and doing other acts on the trespassed property and it was found that the appellant-defendant could not have done those things in a hurry and they must have taken several months for the appellant to completed the things which he had done on the property. The plaintiff-respondent had no disclosed those things in the plaint and had not prayed for a mandatory injunction for the removal of the structures put up by the defendant on the trespassed portion of the property. In those circumstances, I held that the Court would be justified in inferring acquiescence on the part of the respondent and considered that it was not a case for directing delivery of possession of the trespassed portion but it was a case where the respondent plaintiff had to be compensated in money for the value of the trespassed portion and I called for a finding from the lower appellate court as regards the market value of the trespassed portion. I am bound by the decision of the Division Bench of this Court rendered in the aforesaid Associated Cement Co. I am bound by the decision of the Division Bench of this Court rendered in the aforesaid Associated Cement Co. Ltd. v. L.S. Ramakrishna Grounder ILR (1965) 1 Mad 237: ( AIR 1965 Mad 318 ) and following that decision and my own view expressed in Palanivelu v. Varadammal 1978-1 Mad LJ 212: ( AIR 1977 Mad 342 ), I hold that the plaintiff, who resides about a mile away from the suit property, would have come to know about the defendant putting up construction on a major portion of the suit property if he had cared to find out and since he has not done so and kept quiet until the first defendant had completed his construction which have been valued by the Commissioner at Rs. 15000 and had sent the notice only about 7 or 8 months later after January 1972, asserting his right to the suit property, I am of the opinion that the principles of acquiescence has to be made applicable to the facts of the present case and that the plaintiff has to be given only a decree for compensation in respect of the property, namely, the market value of the suit property in lieu of the relief of recovery of vacant possession of the property. For want of evidence a finding has to be called for from the lower appellate Court regarding the market value of the suit property as on the date of the suit. The lower appellate Court will submit its finding within two months from the date of receipt of the records. The parties are at liberty to adduce fresh evidence regarding the market value of the suit property. They will have two weeks' time to file their objections after the finding is received in this Court.” 24. In this case the findings recorded by both the courts below that the plaintiff acquiesced, being erroneous, are liable to be set aside. Plaintiff has not acquiesced; rather he was vigilant to protect his property. In normal circumstances, the decree for mandatory injunction ought to have been passed by demolition of the construction raised by the defendants. However, taking into consideration that the construction has been raised almost three decades back, plaintiff would be entitled only for decree of compensation in order to balance the equities. In normal circumstances, the decree for mandatory injunction ought to have been passed by demolition of the construction raised by the defendants. However, taking into consideration that the construction has been raised almost three decades back, plaintiff would be entitled only for decree of compensation in order to balance the equities. The Court can take into consideration that the prices of land have escalated in and around Solan town and current price of 11 square meters would be ` one lakh and 8 square meters would be ` 75,000/-. 25. Accordingly, in view of the observations and analysis made hereinabove, both the appeals are allowed. Judgments and decrees passed by the courts below are set aside. Suits of the plaintiff bearing Civil Suit Nos. 213/1 of 1991 and 214/1 of 1991 are decreed and decrees for compensation of ` one lakh in civil suit No.213/1 and for ` 75,000/- in civil suit No.214/1 are passed in favour of the plaintiff and against the defendants, respectively. Decree sheets be drawn accordingly. There shall, however, be no order as to costs.