Judgment

BEG, J.:- This is defendants appeal after certification under Article 133 (1) (a) of the Constitution.

2. The plaintiffs-respondents had brought a suit for recovery of possession after declaration of his title to a plot of land, 50 bighas in area, including one bigha area occupied by the defendants-appellants, who claimed sub-tenancy rights and also set up the pleas of waiver and estoppel to prevent their eviction. The trial Court had decreed the suit after repelling the plea of limitation, set up inconsistently with a plea of tenancy right by Bajrang Bali Engineering Company, defendant No. 1, which even alleged to be agents of the plaintiff for letting out lands to others. It also rejected the pleas of waiver and estoppel. It appears that the defendant No. 1, taking advantage of the fact that the plaintiff lived at considerable distance from the land in dispute, had started dumping scrap iron on the land. The plaintiff, immediately after becoming aware of this fact, gave notice in writing to defendant No. 1 on 24-3-50 to remove these materials. On the failure of defendant No. 1 to comply, suits for damages were brought for illegal occupation from 24-3-50 to 21-5-1951 and then 1-9-1952 to 8-5-1953. The plaintiff had reserved his rights to sue for eviction later. Compromise decrees had been passed in those suits. Defendant No. 1 had agreed to pay for use and occupation. But, the terms of the compromise decrees had not been carried out by defendant No. 1. In the case before us, Bajrang Bali Engineering Company, defendant No. 1, did not appeal against the decree for possession by removal of the structures put up by the defendants and for mesne profits at the rate of Rupees 175/- per day with effect from 25-2-55 and award of Rupees 2,000/ for the Court fee paid by the plaintiff.

3. The High Court had also repelled the pleas of the defendants, who mainly relied on waiver and estoppel, but, it modified the decree for mesne profits by awarding only Rs. 3.50 n. p. per day so as to bring the amount awarded to approximately Rs. 100/- per month. Against this decree, the defendants 2 to 5 have come up in appeal to this Court and confined their arguments to the pleas of waiver and estoppel and the bar of Order 2, Rule 2. Civil P. C.

4. After having been taken through the pleadings and the relevant facts and findings in the case, we find ourselves in complete agreement with the views of the trial Court and the High Court, that neither estoppel nor waiver nor Order 2, Rule 2, Civil P. C. could bar the plaintiff s suit. Defendant No. 1, who had neither appealed in the High Court nor is among the appellants before us, had failed to establish its claim that it had authority from the plaintiff to either use the land for dumping scrap iron or to let it out to any party as the plaintiff s agent. The defendants-appellants before us relied mainly on the alleged failure to object to structures made by them for the purpose of manufacturing buckets and automobile parts. But, these were not shown to be permanent structures. They were only tin sheds and fittings, which could be and have been ordered to be removed by the contesting defendants-appellants. The mere fact that defendants-appellants were trespassers and that the plaintiffs had brought their suit for eviction in 1955, objecting to trespass, could not confer, any right upon the defendants-appellants, who were said to have been brought on the land by one Shri Agarwala in 1951. Nothing could be shown to us to enable us to hold that the findings of the trial Court and the High Court on questions of fact were erroneous. It had been rightly held that there was no evidence to show that the plaintiff had in any way encouraged the defendants to incur any expense or had made any representations to induce them to change their position to their disadvantage. The plaintiff had asserted his rights within a reasonable time after learning of the trespass. He did not stand by watching valuable constructi