Full Judgment
Bennet, J.
1. These are two second -appeals in which the points are similar. The appeals are brought by the plaintiff, the Secretary of State for India in Council, and the defendants are different. The plaintiff brought a suit for arrears of ground rent at the rate of two annas a month in one case and two annas six pies in the other case and also sued to eject the defendants from possession of the sites of their houses on the ground that the defendants held those sites as tenants from month to month and that the plain, tiff had given a lawful notice. The trial Court found that the plaintiff was not entitled to eject the defendant and dismissed that portion of the suit but decreed recovery of the sum claimed in each case. The lower appellate Court has upheld those decrees. The plaintiff produced evidence to show that the land was nazul and that there was an entry in the nazul register that these monthly sums were payable, but the entry did not show that they were payable as rent. The contention of the defence was that these sums were payable as chaukidari tax. The lower appellate Court held that as defendants admitted the ownership of the plaintiff the burden lay on the defendants to prove permanent tenancy and that the defendants had not been able to prove that and that no lease was produced. But the Court found:
It is proved and not denied or rebutted on behalf of the plaintiff that he allowed the defendants and their ancestors to erect pucca buildings at a great cost on the site without intervention at any time during the past period of 70 years or more. The original nature of the ground is not known. In the circumstances the evidence of Itwari and Maiku which remains unrebutted on the record is to be believed, and believing Maiku and Itwari I would find that the anoestors of the defendants were granted this land by the Government at a monthly charge for building houses. Defendants and their ancestors have consequently erected pucca structures thereon at a great cost. The plaintiff has all along acquiesced in-such constructions and allowed the defendants to build them. The original nature of the charge also is merged in oblivion. It is not known whether the charge was in the nature of a ground rent or royalty of land for erecting houses thereon. To my mind it is a dear case of equitable estoppel by implication and the Secretary of State is now estopped from ejecting the defendants from the houses proved to have been built by the defendants themselves.
2. Now this finding is attacked in ground No. 2 of the memorandum of second appeal and it is argued that the lower Court erred in holding that the Secretary of State had acquiesced in the constructions made by the defendants. In this connexion learned Counsel referred to a ruling : Mobarak Husain v. Mohammad Ishaq : AIR1926 All721 . That was a case where it was stated:
There is no finding to the effect that the plaintiff knew that the defendants were partitioning his land as their own and therefore the plaintiff was not estopped by the action of the defendants.
3. But in the present case it is part of the case for the plaintiff that the plaintiff has been collecting these monthly sums from the defendants and those sums have been collected because the defendants have houses on land which is nazul. The plaintiff therefore cannot plead that he was unaware of the existence of those houses or of the presence of the defendants on the nazul land. It appears to me that the reasoning of the lower Court in the passage which I have quoted is perfectly correct and that the Court correctly applied the law in holding from the facts proved that the Secretary of State must be taken to have acquiesced in the constructions made by the defendants. Learned Counsel argued that it had not been shown that the plaintiff had been collecting rent earlier than April 1925. The suit was brought in 1934. It is clear therefore that for a number of years before the suit the plaintiff had been collecting this rent and by that collection acquiesced in the existence of these houses of the defendants on the land. The use to which nazul land in a city like Cawnpore is put in cases like the present is by allowing people to build houses on it and by charging a sum per month for the use of the land. Where such houses are of a permanent nature and not mere temporary, huts, the natural presumption would be that the Secretary of State allowed the erection of those houses on the understanding that the person who erected the houses would remain in possession as long as the houses stood. It appears to me altogether unreasonable to argue that the inference to be drawn from these circumstances is that the parties acquiesced in an arrangement by which the person erecting the houses of a valuable nature could be dispossessed by a notice of 15 days terminating with a month. No other ground was argued of the grounds of the second appeals. For these reasons I dismiss these second appeals with costs.