Judgment:
S.S. Subramani, J.
1. Defendant is O.S. No. 238 of 1979, on the file of District Munsif's Court, Paramakudi, renumbered as O.S. No. 107 of 1983, District Munsif's Court, Manamadurai, is the appellant.
2. Suit filed by plaintiff was to declare the title of the plaintiff over the plaint schedule property and to recover the same. He also prayed for a mandatory in-junction to direct the defendants to demolish the construction put up by them in the suit property. Plaintiff also sought for consequential reliefs.
3. In the plaint, it is averred that on 10.2.1957, large-area of property was purchased by plaintiff along with 19 others and there was a partition between the purchasers, as evidenced by Ex. A-2 dated 20.1.1959. As per the said deed, the 10th schedule item was allotted to the plaintiff. Schedule 21 was retained in common by all the purchasers. Item 2 in schedule No. 21 is situated on the northern side of Item 1 in 10th schedule Item allotted to the plaintiff. At the time when the partition was effected, there was a move to provide a road and that is why that Item was left in common. The original idea was to provide about 25 feet width of road to be formed by the Municipality. But later, the Municipality provided only a 15 feet width of road and the remaining area was left in Item 2 of Schedule 21. Whileso, as per Ex. B-1, the defendant purchased Item 1 of the 10th Schedule and became its owner. When there was some property left after construction of the road, it was orally agreed between the 20 purchasers that the property touching the respective schedules will be taken over by them, and, on the basis of this agreement, the plaintiff became the owner of the plaint schedule property. Admitting the title of the plaintiff over the schedule item, defendants offered to purchase the property as per Ex. A-5 dated 27.9.1969. The total consideration payable was Rs. 1,250 out of which Rs. 600 was paid as advance. But, due to various reasons, the sale could not take place, and finally, the agreement was also cancelled. The advance amount paid under the agreement was also returned to the defendant. Whileso, defendants, without any authority, proceeded with the construction of a building within the plaint schedule property. A notice was issued to the defendants to refrain from proceeding with the construction. In spite of it, defendants were very adamant in proceeding with the same. Suit was, therefore, filed for declaration of title and other reliefs aforementioned.
4. In the written statement filed by the defendants, they admitted that they purchased Item 1 of the 10th Schedule as belonging to the plaintiff. They also admitted that Item 2 in Schedule 21 is situated on the northern side of the property purchased by him. They also agreed to have entered into an agreement for sale and also the subsequent cancellations. According to them, they did not purchase the. property, because, the other co-sharers did not permit the defendants to purchase the same, and since the property was left in common, the title of the plaintiff was not clear. They said that they believed the representation of the power of attorney of the plaintiff who was a legal practitioner. But when there were other demands by the other co-sharers, they withdrew from the agreement. They also said that waited for a long time to get finalisation of the lay-out and that also did not come into effect within the expected period. Under the above circumstances, they thought it fit to cancel the agreement. In the written statement, it was further said that the plaintiff alone cannot maintain the suit since the other purchasers are also necessary parties. They also said that they have put up a construction, and the plaintiff who is the owner of the adjoining property, remained a silent spectator when the construction was going on. They also pleaded that due to acquiescence on the part of the plaintiff, a decree for mandatory injunction cannot be granted. They further denied the absolute title of the plaintiff over the plaint schedule Item. According to them, the suit is also barred by limitation. They denied having put up any construction within the plaint schedule. Further, according to them, they have put up the construction on the basis of plan and licence sanctioned by Local Authority. They prayed for dismissal of the suit.
5. During trial, Exs. P-1 to P-17 were marked on the side of the plaintiff. Ex. B-1 was marked on the side of the defendants. Commissioner's Reports and Plans were marked as Exs. C-1 to C-4, of which Ex. C-2 and C-4 are Commissioner's Plans. Plaintiff's Power of Attorney was examined as P.W. I, and first defendant got himself examined as D.W.I.
6. After evaluating the entire evidence, trial Court case to the conclusion that the plaintiff has title to the property Plot shown as A B Al Bl as found in Ex. C-4 Plan. Trial court was of the view that the construction, if any, within that Plot is liable to be removed. Trial Court further came to the conclusion that the plaintiff never acquiesced to the construction. The trial Court also found that the case pleaded by the plaintiff regarding the oral agreement between the 20 purchasers must be true, especially in view of Ex P-4 whereby the defendant also agreed to purchase the property as belonging to the plaintiff. The suit was decreed in part.
7. Aggrieved by the judgment of the trial Court, defendant preferred A.S. No. 14 of 1988, on the file of Subordinate Judge, Devakottai. Since the plaintiff was also aggrieved by the decree, for, he was not given a decree for the entire claim, he also preferred a cross-appeal. According to the plaintiff, he is entitled the decree, only A, B, A1, B1 plot was allowed to be recovered.
8. The lower Appellate Court, after considering the entire evidence, further came to the conclusion that the trial Court judgment is correct, and there is no reason to interfere with the findings. Both the appeal and cross-appeal were dismissed. It is against the concurrent judgment, defendant has preferred this second appeal.
9. At the time of admission of the second appeal, the following substantial question of law was raised for consideration:
Whether the Lower Court were right in law in granting the relief of mandatory injunction in dis-regard of the principles of equity and its species like estoppel, acquiescence, abandonment, ratification and laches
10. Plaintiff has not preferred any appeal against the dismissal of his cross-appeal or against that portion of the decree for which a relief was refused to him.
11. It is not disputed by the appellant that a large extent of area was purchased by 20 persons in the year 1957, and, as per Ex. P-2, a partition was effected between the purchasers. Subsequent to the partition, some of the properties were allotted to the plaintiff exclusively in the 10th Schedule. Item 1 of the 10th Schedule property was purchased by the appellant as evidenced by Ex. B-1. In Ex. B-1, the property purchased by him is described thus:
10. Item 1 of 10th Schedule purchased under Ex. B-1 is described in the partition deed Ex. P-2 thus:
Even though in respect of Item 1 of 10th Schedule, the measurement is given as western north south direction 137 feet and eastern north south direction as 140 feet, while executing Ex. B-1, these measurements were given as 147 feet and 150 feet respectively, i.e., there was an excess of ten feet on either side. That was the reason why the plaintiff claimed in the suit that he is entitled to all the property north of 137 feet and 140 feet mentioned in the partition deed, and it was described in the plaint as A,B,C,D, P1. But, since there was no rectification of Ex. B-1 document, and since the appellant was also in possession of the property covered by the sale deed, which is described as 140 feet x 150 feet respectively, trial Court did not grant a decree in so far as the property covered by Ex. B-1 is concerned. That means, the 10 feet excess sold under Ex. B-1 was allowed to be retained by the defendants, and no decree was granted. A decree was granted only in respect of the northern property situated in the 147 feet and 150 feet described in Ex. B-1 and that property has been identified as A B A1 B1 property. Since the plaintiff has not challenged that part of the decree which against him, the only question that has to be considered is, whether the respondent is entitled to recover A B Al Bl property marked in Ex. C-4 plan.
11. The property that is sought to be recovered is, admittedly situated on the northern side of Ex. B-1 property. In paragraph 4 of the plaint, plaintiff has specifically alleged that the appellants purchased only the property covered in Item 1 of the 10th Schedule for which alone consideration was received. A reading of Ex. B-1 also shows that the plaintiff intended only to sell his exclusive property allotted under Ex. P-2. In regard to northern property, an agreement for sale was entered into as evidenced by Ex. P-4 dated 27-9-1969. The wording of the agreement so far as the northern property is concerned, reads thus:
The description of property agreed to be sold is described thus:
12. Even though such an agreement was entered, it could not be implemented, and it is admitted by both parties that the agreement was cancelled and the ad-vance amount paid was also returned. I must also make it clear that as per Ex. P-4, possession also did not pass, and plaintiff continued to be in possession. According to the appellants, they did not purchase the property since the other 19 sharers (owners) put forward a claim, and the plaintiff did not specify that he is the exclusive owner. It is also their case that they were waiting for the finalisation of the lay-out so that the limit of the road could be ascertained, but in spite of waiting for a reasonable time, the same was not finalised and, therefore, Ex. P-4 was given a go by.
13. The appellants mainly attack the title of the plaintiff on the ground that the other 19 purchasers are also necessary parties, and the plaint property still continues to be a common property as provided in Ex. P-2 partition deed. As against the said contention, plaintiff has pleaded that subsequent to the formation of the road, the excess area was agreed to be divided between the 20 purchasers and each sharer became the owner of the adjoining property. It is the case of the defendants (appellants herein)- that the plaintiff being already the owner, by mutual consent between the various purchasers, ownership was con-fined to specific plots. The said argument seems to be probable. It is, admitting the ownership of the plaintiff, Ex. P-4 agreement for sale was also taken. In Ex. P-4, the appellants have admitted that the property scheduled therein absolutely belonged to the plaintiff and subsequent to Ex. P-2 partition, the plaintiff has become the owner. An explanation is put forward by the appellants that he believed the representation of the Power of Attorney of the plaintiff, he being a legal practitioner. The appellant has no case that he was misled or misrepresented by plaintiff or his Power of Attorney the fact that originally the property was left in common is clear from the partition deed itself. That the property was left in common is referred to in Ex. P-4 agreement. It is thereafter, the title of the plaintiff is admitted. The appellants also cannot, therefore, plead ignorance about the same. Even though admission itself may not confer title, that principle cannot be made applicable to this case. The plaintiff was also an owner along with others. It is a subse-quent arrangement or division among the various purchasers, and that is pleaded in the plaint. That arrangement is admitted by the defendants while taking Ex. P-4. Unless the admission is withdrawn successfully, the same will have binding force. Along with the same, no other person has also come for-ward to claim title over the plaint schedule property. Both the trial court as well as the lower appellate court has believed the case of the plaintiff, as pleaded by him in para 5 of the plaint. The finding being one rendered on appreciation of evidence, along with the admission of the defendants, I do not think it will be proper to interfere with that finding. Once the title of the plaintiff is found in his favour, the question arises as to whether there is any justifiable reason to deny relief to the defendants, in so far as A B Al Bl Plot is concerned. Before the suit was instituted, a notice was issued. Ex. A-10 is the copy of the notice ad-dressed to the second defendant wherein plaintiff has asserted that he is the owner of the plaint schedule, and he was informed that no construction should be made, and if he puts up any construction, the same will be at his risk. The receipt of Ex. A-10 notice is not disputed. Thereafter, another notice was also issued to both the defendants under Ex. 14 dated 11.5.1982. A reply was sent on their behalf, as evidenced by Ex. A-15. From the reply, it is clear that at that time, the construction was being proceeded with, and finally, the appellants informed the plaintiff that they will abide by the decision in O.S. No. 238 of 1979, i.e., the present suit. So, before the construction began and during the progress of the construction, plaintiff objected to the same and informed the appellants about their wrongful act. When D.W. 1 was examined, he also admitted that immediately after the institution of the suit, a Commissioner visited the property and thereafter they proceeded with the construction on the northern side. --vide last three sentences in the deposition of D.W. 1 during cross-examination. From the admission, it is further clear that the construction was made during the pendency of the suit. 14. The principle of acquiescence was argued by learned Counsel for the appellants which, according to me, cannot be sustained in this case. In 'Kerr on the Law of Fraud and Mistake'--First Indian Reprint Edition 1997, at pages 110 and 111, the learned Author has said thus:
The principle is not limited to cases where an express and 'distinct representation by words has been made, but applies equally to cases where a man by his silence causes another to believe in the existence of a certain state of things, or so conducts himself as to induce a reasonable man to take the representation to be true, and to believe that it was meant that he should act upon it, and the other accordingly acts upon it and sd al-ters his previous position. Where there is a duty or obligation to speak, and a man in breach of that duty or obligation holds his tongue, and does not speak and does not say that the thing he was bound to say, if that be done with the intention of inducing the other party to act upon the bell of that the reason why he did not speak was because he had nothing to say, there is fraud. 'A party', said Lord Wensleydale in Freeman v. Cooke, 'who, in neglect of a duty cast upon him to speak, stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot after-wards dispute that fact in an action against the person whom he has himself assisted in deceiving. The doctrine,' said Lord Camphell in Cairacross v. Lorimer, 'is to be found in the laws of all civilised nations that if a man either by words or conduct has intimated that he consents to an act which has been done, or that he will offer no opposition to it, although it could not have been done lawfully without his consent, and he thereby induces others to do that from which they might otherwise have abstained, he cannot question the legality of the act he has so functioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. If a party has an interest to prevent an act being done, and has full notice of its having been done, and he acquiesces in it so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous licence. ' Nor can parties who stand by without asserting their rights and allow others to in our liabilities which they might not have in-curred if those rights had been asserted set up those rights as against those by whom such liabilities have been incurred.
In the same Book, at page 651, the learned Author has said thus:
Where a defendant to an action relies upon the acquiescence of the plaintiff, he must over that the plaintiff knew that the defendant was acting in reliance on the acquiescence of the plaintiff, or that the acts relied on were such as to induce a reasonable man to believe that the plaintiff had acquiesced.
(Italics supplied)
At page 671, it was further said that the onus is on the person who pleads acquiescence. The learned Author has further said thus:
It is not enough to show that the plaintiff had the means of knowledge and might have found out the truth. More means of knowledge is not the same thing as knowledge; it is only evidence of a want of bona fide 'belief. Where knowledge is relied upon as a defence, the truth must be brought clearly home to the deceived.
According to me, on the facts of this case, there is no pleading, nor proof regarding acquiescence. The very plea presupposes that there must be an inducement by the person who is bound to speak and that he was prompted to proceed with the construction because of the silence. Person who is relying on acquiescence must also be under the mistaken impression of his right and the person against whom it is pleaded must also be aware of that mistake and behalf. 15. In an early decision of the Allahabad High Court reported in Jai Narain v. Jafar Beg : AIR1926All324 , their Lordships held that the conduct of the plaintiff must be fraudulent and only in such a context, the plea of acquiescence could succeed. The relevant portion of the said decision reads thus:
The acquiescence which will deprive a man of his legal rights must amount to 'fraud. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudu-lent for him to set up those rights. The following are the elements or requisites necessary to constitute fraud of that description. In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, as, the doctrine of acquiescence is founded upon conduct with a knowledge of one's legal rights. Fourthly, the defendant, the possessor of the legal right must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of th legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by ab-staining from asserting his legal rights. Where all these elements exist there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it, but nothing short of this will do.
16. In Bakharia Dhuria v. Manak Gangaram A.I.R. 1954 Nag. 97, it was held thus:
Acquiescence is a matter of legal inference from the facts established in a case: 21 All 496 (PC), Ref. The mere inactivity of the person concerned for a particular number of years apart from any-thing else in the case does not necessarily lead to the inference of acquiescence. The question of acquiescence cannot be reduced to a rule of thumb..
Where a party relies upon omission or in-activity of the other as depriving the latter of his legal rights, nothing short of conduct amounting to fraud can sustain a plea of acquiescence.
17. In a Full Bench decision of Jammu and Kashmir High Court reported in Bhagat Rajinder Kumar v. State ofJ. &. K. A.I.R. 1960 J. &. K. 50, their Lord-ships were considering a case where the lessee put up a construction. While the lessee put forth a case of acquiescence, the contention of the lessor was that the lessee acted against the condition of the lease. At page 52, their Lordships said thus:. before the doctrine of acquiescence can be invoked, the lessor must have been present at the time of the actual construction and should have effectively encouraged the same. ' 18. I also had occasion to consider the law on acqui-escence in a recent decision reported in M. Ramalingam v. N. Thangavelu (1997) 2 L.W. 35.
19. On the basis of the above legal principles, I do not think the Appellant is entitled to contend that the decisions of the Courts below require interference. As I said earlier, a legal notice was issued even before the construction began. The construction was going on even during a Commissioner visited the property after the filing of the suit. Thereafter, the construction on the northern side began, and a legal notice was issued under Ex. A-14. The reply of the defendants was that they will abide by the result of the suit. Again, when he purchased Ex. B-1 property, they were aware about the limits of the property. That is why the appellants took Ex. P-4 also subsequently. In spite of the fact that the agreement for sale fell through, and even after knowing that they have no right over Ex. P-4 property, if the defendants had put up the construction purposely, they were doing it only at their risk. Even if there was a duty to speak, plaintiff has already represented the same by issuing notice and filing the suit. In Ex. P. 15, the appellants have undertaken to abide by the result of the suit. That being so, I do not think there is any equity in his favour.
20. Even though that is the only question of law that has been raised, the following arguments were also advanced by learned senior Counsel for the appellants, on which learned Senior Counsel for the respondent was also heard. The points put forward by learned Senior Counsel are: (1) There is no encroachment. The appellants are in possession of only the property purchased by them under Ex. B-1. That ar-gument is based on the difference in the measurement which I have already pointed out. Courts below have not granted any decree to the plaintiff so far as Ex. B-1 property is concerned. The decree is confined only to the property which is in the hands of the de-fendants in excess of Ex. B-1 property. (2) The oral partition is not proved. I have already answered this, and the Courts below have also believed the case of the plaintiff especially taking note of the admission in Ex. P-4. Learned Counsel also submitted that the suit is bad for non-joinder of necessary parties, i.e., all the 19 sharers or purchasers also should join in this case. Once it is found that the plaintiff alone is the owner of the property, the said contention also fails. Learned Senior Counsel further submitted that the construction was made sometime in 1975 and plaintiff has come to Court more than three years thereafter. The same is also answered in the earlier portion of this judgment.
21. For the reasons stated above, I do not think the Courts below have gone wrong in granting a decree to the plaintiff. The question of law raised is found against the appellants, and the other questions urged by learned senior Counsel for the appellants at the time of arguments are also rejected.
22. In the result, the second appeal is dismissed, how-ever, without any order as to costs.