KAZIM HUSAIN Vs. RAM SARUP

JUDGEMENT

(1.) This is a plaintiff's appeal from the Subordinate Judge of Ghazipur. The facts found in the lower appellate Court are these: The plaintiff and the defendants are joint owners of the plot in suit. About two years before the action was brought by the plaintiff the defendants started to build a house on a part of the land within the zamindari which was parti or waste land. They proceeded with their building without any objection on the part of the plaintiff and spent some Rs. 1,300 upon it. When the building was almost completed the plaintiff brought an action for a mandatory injunction directing the defendants to demolish the building and so to establish their joint possession. It is to be noted that the plaintiff was heavily indebted to the defendants and both the trial Court and the lower appellate Court have found that the reason for the plaintiff's action was not so much his desire to enforce his right as joint owner but rather to bring pressure to bear upon the defendants in order that they might give up some portion of the debt. The question for determination is whether a mandatory injunction should issue, directing the defendants to remove the building.

(2.) The trial Court dismissed the suit on the ground that the plaintiff had failed to show that he had suffered any special damage. The lower appellate Court dismissed the plaintiff's appeal on the ground of the plaintiff's acquiescence.

(3.) In my opinion, on the facts of this case, neither the trial Court nor the lower appellate Court came to a correct conclusion in law. It is clear that the authority, Parsram V/s. Sherjit [1887] 9 All, relied upon by the trial Court has been overruled in subsequent decisions of this High Court, e.g., in Ram Bahadur Pal V/s. Ram Shankar Prasad [1905] 27 All. 688, which was a Full Bench decision. With regard to acquiescence the law has been laid down once and for all in Willmott V/s. Barber [1880] 15 Ch. D. 96. The decision in that case lays down several rules for determining whether acquiescence has taken place or not. The onus would be upon the defendants to show: [1887] 9 All that they had made a mistake as to their legal rights, [1905] 27 All. 688 that they had expended some money or done some act on the faith of their mistaken belief, [1880] 15 Ch. D. 96 that the plaintiff knew of the existence of his own right which was inconsistent with the right claimed by the defendants, (4) that the plaintiff knew of the defendants mistaken belief in his rights and (5) that the plaintiff must have encouraged the defendants in their expenditure of money directly or by abstaining from asserting his legal right. In this case it is clear that the necessary elements are lacking. There is no evidence for instance as to whether the defendants made a mistake as to their legal rights. The case of Willmott V/s. Barber [1880] 15 Ch. D. 96 has been followed in this High Court in Jai Narain V/s. Jafar Beg .