SANKARAN Vs. CHATHUKUTTY

JUDGEMENT

(1.) This second appeal by the defendant is against the appellate decree For recovery of a small extent of land 5 1/2 x 1 ft. in measurement. There is no dispute about the plaintiff's title to the plaint A schedule property obtained under Ext. A2 partition of his family properties in 1970. The defendant had leasehold title to a small plot of land 7 1/2 x 5 1/2 6 ft. koles in the plaint A schedule property as per Ext. A1 lease deed dated 21-7-1961 granted by the plaintiff's father Kelappan. According to the plaintiff the defendant had trespassed into portions of the remaining extent of land on the south and east of the area covered by Ext. A1. The defendant denied the trespass and contended that he is in possession of only the area of land covered by Ext. A1 lease in his favour. Both the courts below have concurrently found that there is no trespass south of Ext. A1 property. The courts below have however found that an extent of 5 1/2 x 1 ft. area east of Ext. Al property had been encroached upon by the defendant while constructing a building in Ext,. Al property. The Trial Court however dismissed the , suit applying the principle of equitable estoppel against the plaintiff for the reason that the plaintiff had stood by and acquiesced in the defendant constructing outside the area covered by Ext. A1. The appellate court has reversed the decision of the Trial Court and has granted a decree for recovery of possession of the aforesaid extent of land east of Ext. A1 property on the ground that the suit is filed within 12 years after the defendant had encroached upon the plaintiff's land. Learned counsel for the appellant has raised only one question before me in this second appeal. Since the construction has been found to be in 1968, the suit even though is within 12 years after the construction, the plaintiff had stood by and acquiesced in the construction by the defendant and for that reason he should be held to be estopped from asserting his title to recover possession of the encroached portion of the land. It is the admitted case of both the parties that the defendant's title is derivative from the plaintiff's father under Ext. A1. Ext. A1 gives the correct extent and boundaries of the property demised to the defendant. The Supreme Court in Chhaganlal v. Narandas ( AIR 1982 SC 121 ) states thus at page 125: