The principle of acquiescence and trespass under the Specific Relief Act, Section 56(j) was central to the court's decision.

JUDGMENT

N.R. Chatterjea, J. - This appeal arises out of a suit for a declaration of the plaintiff's right to a pathway, and for a mandatory injunction for the removal of an over-bridge, which the defendants had constructed over the pathway, on the allegation that the pathway was a private pathway belonging to the plaintiff, and that the defendants had no right to construct the overbridge.

2. The defendants, among other things, denied the plaintiff's right, and also pleaded that the plaintiff was precluded, by reason of acquiescence in the construction of the overbridge, from having it demolished.

3. The Court of first instance declared the title of the plaintiff to the disputed pathway but refused the mandatory injunction to demolish the overbridge, and gave the plaintiff a decree for Rs. 100 as damages.

4. On appeal by the plaintiff, the learned District Judge directed the removal of the overbridge.

5. The defendants have appealed to this Court.

The first contention raised is that a certain letter by which the defendants had asked for the permission of the plaintiff for the erection of the overbridge was no evidence of the title of the plaintiff, and that the question of title should have been' decided upon other evidence.

6. There is no doubt, however, that the letter contained a clear admission of the plaintiff's title and both the Courts below have found that the plaintiff's title was proved. The main contention, however, is that the Court below ought to have held that there was acquiescence on the part of the plaintiff and that the Court, therefore, was not justified in directing the removal of the overbridge.

7. It appears that the defendants, on the 20th November 1918, wrote the letter referred to above, asking for permission to errect the overbridge. No orders appear to have been passed on this letter and the defendants without waiting for any order built the overbridge. The plaintiff's local agents were residing very near the place and they did. not raise any objection. It is accordingly contended that this amounted to acquiescence on the part of the plaintiff' which precluded him from having a mandatory injunction. The cases of Noyna Misser v. Rupikin 12 C.W.N. 519 : 35 C. 661 and Benode Coomaree Dossee v. Soudaminey Dossee 9 C. 609 : 12 C.L.R. 300 : 4 Ind. Dec. 1054 have been relied upon On behalf of the appellants.

8. In the second case, the question was whether a building which had obstructed the entrance of light into the plaintiff's buildings should be demolished, when the; plaintiff had not taken prompt steps. Wilson, J., observed: "When a plaintiff has not brought his suit or applied for an injunction at the earliest opportunity, but has waited till the building has been finished, and then asks the Court to have it removed, a mandatory injunction will not generally be granted, though there might be cases where it would be."

9. The building to be demolished, however, in that case was not erected upon any land belonging to the plaintiff and the case, therefore, is quite distinguishable from the present.

10. The first case related to an agricultural holding. The tenant of an agricultural holding planted the land of his jote with mango trees to the knowledge, but without the consent, of the landlord, thus changing the character of the land. More than three years afterwards, the landlord sued for a mandatory injunction to have the mango trees removed. It was held that having stood by for more than three years and allowed the tenants to spend his labour and capital upon the land without taking any action in the matter, the landlord was not entitled to a mandatory injunction. It was the case of a tenant, and it is unnecessary to consider under what circumstances a landlord is entitled to a mandatory injunction against his tenant.

11. Here the defendant was a stranger. So far as strangers are concerned, the law on the point appears to be quite settled. In the leading case of Ramsden v. Dyson (1866) 1 H.L. 129 : 12 Jur. (N.S.) 50