ABDUL KADER CHAUDHURY Vs. UPENDRA LAL BARUA

JUDGEMENT

(1.) The subject matter of the suit is a strip of land being the Western portion of the Southern Bank of a certain tank. The Eastern portion of the Southern Bank admittedly is the property of the Aryya Mitra Institution, a school of which the defendants are the members of the committee. The suit lands are described in schedule Ka of the plaint. The plaintiff's case is that the Western portion and the Eastern portion of the Southern as well as the other banks of the tank were at some time ejmali properties of the plaintiff's and the defendants predecessors in title. There was a partition and the Western portion of the Southern Bank was allotted exclusively to the share of the plaintiff's predecessor The plaintiff has instituted this suit on the ground that the property described in Schedule Ka falls within his exclusive property but he was dispossessed from it in the year 1928 when there was an encroachment made and some huts of the school were built upon a portion of it. He claims therefore recovery of possession on declaration of his exclusive title. The defendants denied the title of the plaintiff and in one paragraph of their written statement they said that the plaintiff's suit was barred by estoppel, acquiescence and waiver.

(2.) They did not plead facts which would support the said plea of estoppel, acquiescence and waiver. In another paragraph of the written statement they stated that at the time when those huts were raised on behalf of the school authorities, the plaintiff's son was the secretary of the school and those huts were raised with the knowledge of the plaintiff's son and of the plaintiff. They did not say in the written statement that either the plaintiff or the plaintiff's son on behalf of his father gave his consent to the school authorities to raise those buildings nor did they plead an alternative case that even if the land belonged to the plaintiff the school authorities were given a license to build upon it. Both the Courts below have found that the land in suit belonged to the plaintiff and he was dispossessed in the year 1928, well within the period of limitation. The Court of first instance made a decree in favour of the plaintiff on those findings. The lower appellate Court, although maintaining those findings which I have noticed above, has dismissed the suit on the ground that the plaintiff must be taken to have given his consent to the school authorities enclosing the disputed land within his compound and raising structures on some portion thereof.

(3.) The lower appellate Court deals with this question in dealing with point No. 4 formulated by it, namely "To what relief is the plaintiff entitled." First of all it states that the plaintiff's son was the secretary at the time when the school authorities took possession of this plot of land and from that he says "there can be no manner of doubt" that he (the plaintiff's son) was fully aware of the fact that the school authorities were enclosing the said portion and were raising structures on it. That is a finding which I take to be a good finding based on evidence. It was open to the lower appellate Court to draw the inference from the fact that the plaintiff's son was the secretary, at the time that the plaintiff's son had knowledge of the fact that on this particular plot rooms of the school were being built and this particular plot was being enclosed within the school compound. Then the lower appellate Court says the plaintiff's son is a dutiful and obedient son and is in the same mess with his father. From that he concludes that the plaintiff's father must have known of these operations on the part of the school authorities well, although there is some element of speculation here, and I would take it for the purpose of my decision that this is a good finding also. Then the learned Judge says that I am inclined to think that the school was removed to the suit land with the knowledge and consent of the plaintiff. He is a litle inaccurate there in the statement of the facts because the school was not removed from its old site to its present site but there was only an extension over the suit land. However that may be, that is a misstatement which is immaterial for the purpose of this appeal. Then he says that, inasmuch as the plaintiff by his own conduct must have led the school authorities to believe that he would not object to any hut being erected there and the remaining land being used for the purpose of the school he cannot now turn round to take khas possession of the land by the removal of the mud-walled hut or huts thereon which are no doubt substantial structures.