The equities resulting from the part performance of a parole agreement can block the plaintiff's right to eject the defendant, as per the principles of Maddison v. Alderson and Walsh v. Lansdale.

JUDGMENT

Mukerji, J. - The facts of the case are sufficiently set out in our order of remand of 10th February 1927. The two questions of fact on which we asked for the findings of the Court of appeal below have now been answered by that Court. Since the return of the records and the submission of the findings we have heard the parties again and we are thankful to the learned lawyers who represent them for the assistance they have given us in arriving at our conclusions on this somewhat difficult case. We now proceed to judgment.

2. Amongst the findings of fact which the Courts below have concurrently arrived at in this case it is necessary to refer to one, viz., that in 1913 there was a parole agreement between the plaintiff and the defendant to the effect that the plaintiff would grant a permanent lease to the defendant in respect of the land at a rental of Rs. 4 per catta, that is to say, at a. total rental of Rs. 80 per month. The two questions which we sent down for determination were : first, was there, at any time, and if so, when, a clear refusal on the part of the plaintiff to the knowledge of the defendant to specifically perform this contract ? and second, whether the structures which the defendants erected on the land, shortly after 1913 and in expectation of getting a permanent lease, involved such an outlay of money as would reasonably strike the plaintiff as being an assertion of a permanent right in the land on the part of the defendant, or such as would reasonably call for objection from a landlord who never intended to grant a permanent lease. As regards the first question, in the opinion of the learned District Judge, the plaintiff's letter of 14th December 1918 contained, and gave notice to the defendant of such a refusal, and the present suit, it should be mentioned was instituted on 12th April 1923. On the second question the answer of the learned District Judge is that the structures erected by the defendant cost Rs. 10,000 to Rs. 12,000, that the plaintiff was aware of the erection of these structures and must have realized that the defendant would not have constructed, such a building unless he was assured of the possession of a permanent right in the land and that if the intention of the plaintiff was not to grant such a lease it. might reasonably be expected that he would have objected to the construction of such a building.

3. Now, it seems to me that the defendant, not having obtained a lease in conformity with the provisions of Section 107, T.P. Act read with Section 49, Eegistration Act, can resist ejectment, in view of the circumstances of the case, only if the case may be brought within the range of one or other of those principles of equity which have been held to apply to this country and the operation of which may be attracted by the facts found as above.

4. One such principle is to be found in the class of cases of which Maddison v. Alderson [1883] 8 A.C. 473, is the type, in which case the principle is fully explained. In that case it was held that where there is a parol contract not provable by reason of Section 4, of the Statute of Frauds, which however, did not avoid a parol contract but only barred the legal remedies which might otherwise have been enforced, if there had been such performance of it by some acts unequivocally referable to or indicative of the contract, a Court of equity will charge a party upon the equities resulting from the acts done in execution of the contract. In that case Lord Selborne, L.C., observed thus:

If such, equities are excluded, injustice of a kind which the statute cannot be thought to have had in contemplation would follow. Let the case be supposed of a parol contract to sell land, completely performed on both sides, as to everything except conveyance ; the whole purchase money paid ; the purchaser put into possession ; expenditure by him (say in costly buildings) upon the property ; leases granted by him to tenants. The contract is not a nullity ; there is