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TMI Blog1957 (1) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... undary dispute cropped up long after the appellants' (that is, the defendants') construction which progressed for several months without any protest, and then it was found out that there had been an encroachment." no question of acquiescence or waiver in law can possibly arise, and, as such, the finding on the question of acquiescence is erroneous in law; rather, it is negatived by the above finding of the court of appeal below itself. As a corollary to his contention, Mr. Sinha has further argued that if his contention is accepted to be correct, then there is no question of awarding compensation in lieu of the encroachment, as such a procedure is not warranted by law. 3-4. In order to appreciate the argument of the learned Government Advocate, it is necessary to know briefly the relevant facts bearing on this question. 5. The plaintiff-appellant brought a suit for removal of an encroachment on survey plot 80, under Khata 15, situate in Sepahilane, in the Gaya town. He also asked for a permanent injunction restraining the defendants from opening windows, service doors of the latrine and drain, and also from discharging the drain eves' water. Contiguous north of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal, therefore, two questions emerge for decision, arising out of the argument of Mr. Sinha: (1) whether on the finding of the first court of appeal, its finding about acquiescence is correct in law? and, (2) if there be no. acquiescence or waiver on the part of the plaintiff, can he in law be awarded a decree for compensation , in lieu of encroachment?. 9. In order to answer the first question, as to whether on the finding of the court of appeal below that both the parties were labouring under some sort of mistake about their respective rights in regard to the encroachment portion of the land, acquiescence has, in law, been proved, It is necessary at first to know the principles underlying the rules of acquiescence or waiver. It is well established that parties cannot be said to acquiesce in the claims of others unless they are fully cognizant of their right to dispute them, and that, where acquiescence is relied on, it must be shown that the person acquiescing was aware of the matter in which he acquiesced, and of the effect of such acquiescence. Recognition, like waiver, must be an intentional act with knowledge: .-- 'Bhonu Lal Chowdhury v. W.A. Vincent' AIR 1922 Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;Ramsden v. Dyson' (1866) 1 HL 129 (E). In considering what the principles of equity on the subject are Lord Cranworth, the distinguished Lord Chancellor, in his address to the noble Lords observed: "If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented. But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the building belonged to him, and, immediately thereafter he brought a suit for possession. The plaintiff's right to recover the encroached portion arises out of his ownership. It is well established that if a stranger builds on the land of another, believing it to be his own, the owner is entitled to recover the land, and the party building on the land of another is allowed to remove the building unless there are special circumstances amounting to a standing by so as to induce the belief that the owner intended to forego his right, or to an acquiescence in his building on the land. No such special circumstances were found to exist in the present case. In my opinion, therefore, as no finding of acquiescence of waiver can be founded on the finding of the court of appeal below that both the parties were labouring under some sort of mistake about their respective rights in regard to the encroached portion of the land, the plaintiff is not estopped from claiming vacant possession of the encroached land by demolition of the building standing thereon. 12. Mr. G.P. Das, for the defendants, in reply on the question of acquiescence, submitted that the plaintiff was estopped from clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. This general principle Is thus stated by the learned Lord Chancellor (Lord Campbell), with the full concurrence of Lord Kingsdown, in the case of -- 'Cairncross v. Lorimer' (1860) 3 Macq 827 at 829 (K), which was quoted with approval by Lord Shand in 'Sarat Chunder Day v. Gopal Chunder Laha', (H) (supra). In my opinion, therefore, generally speaking if a party having an interest to prevent an act being done has full notice of its having been done, and , 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 license. An estoppel does not itself give a cause of action, it prevents a person from denying a certain state of affairs. 13. In the present case, however, the finding is that both the parties were labouring under some sort of mistake about their respective rights in regard to the encroached portio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kulkarni v. Sadashiv Bharma Shet' ILR 17 Bom 771 (L.); and -- Jethalal Hirachand v. Lalbhai Dalpatbhai' ILR 28 Bom 298 (M). In the latter case, in which the first case was affirmed, Chandavarkar J., while considering the finding of the learned District Judge that the plaintiff was entitled to no more than compensation, because there has been on the part of the defendant a technical encroachment in as much as a foot, or so of the plaintiffs ground had been taken to support the wall which divided the properties of the parties observed: "But if the foot or so of ground so taken by the defendant belongs to the plaintiff the act of the defendant is one of continuous trespass on the plaintiff's property and the wrongdoer cannot be heard to say that he has deprived the owner of only a little and that of not much use to the latter. To allow such a defence and on the strength of it to award compensation is to let a trespasser put a value of money's worth on another man's property and deprive him of it against his will." His Lordship went on further to observe: "But where a man builds on another man's property against the will of the latter or with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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