MUHAMMAD UMAR DARAZ KHAN Vs. MARU

JUDGEMENT

(1.) The suit out of which this appeal has arisen was brought by the zamindar against his tenants for the recovery of possession of a plot of land and the demolition of the building erected thereon. The defence with which I am concerned in this appeal was that as the house was built with, the knowledge of the plaintiff's karinda, who never prevented the defendants from building, and as the defendants spent about Rs. 300 thereon, the plaintiff was not entitled to recover possession of the site and to have the building pulled down.

(2.) The Court of first instance dismissed the suit. The lower appellate Court affirmed the decree, finding that the house was built with the acquiescence of the local representative of the plaintiff. The plaintiff preferred a second appeal to this Court. As no issue was framed by the Court of first instance on the plea of equitable estoppel and no finding recorded thereon, I referred the following issue to the lower appellate Court for trial under Section 566 of the Code of Civil Procedure: Did the agent of the plaintiff acquiesce in the construction of the house in dispute? The finding returned by the lower appellate Court is: "I think the house was erected with the knowledge of the plaintiff's agent and that no active steps were taken to prevent it and the building must be taken to have been acquiesced in."

(3.) An objection to this finding has been taken on behalf of the appellant. It, is that a forbearance to interfere does not amount to an acquiescence. In order to constitute acquiescence and to raise the plea of equitable estoppel an abstinence from interference is not enough. In addition to this there must also be a mistaken belief in the builder that the land upon which he was building was his own property. See Beni Ram V/s. Kundan Lal 21 A. 496 (P.C.) Naunihal Bhagat v. Rameshar Bhagat 16 A. 328 Raj Narain Mitter V/s. Budh Sen 27 A. 338 and Budh Singh V/s. Parbati 29 A. 652. In the present case the defendants are tenants and according to the common law of these Provinces the zamindar as a rule is the owner of the land in the village [See Chajju Singh V/s. Kanhia (1881) 1 A.W.N. 114 and Sri Girdhariji Maharaj V/s. Chote Lal 20 A. 248], and there is nothing on the record to show that the defendants built under the mistaken belief that the land on which they were building was their own. The plaintiff is, therefore, not estopped from claiming the relief he seeks.