Mere silence will not amount to representation.

Defendant in O.S. No.369 of 1992, on the file of Subordinate Judge’s Court, Thanjavur, is the appellant. Suit filed by the plaintiff is one for declaration of title, recovery of possession and for mandatory injunction directing the defendant to remove all Constructions, pipes and other obstructions in the suit property, and for consequential reliefs.

.2. The material averments in the plaint are as follows:

.The schedule property is part of Resurvey No.342/ 2-A Item 38, which, according to the plaintiff is his ancestral property. He obtained the same through a final decree passed in that case. He was allotted 40 cents. Out of the 40 cents, portions have been sold, and the remaining portion is described in the plaint. It is his case that the plaintiff is the absolute owner. It is further averred that during the temporary absence of the plaintiff on 9. 1992, defendant removed the fence of the plaintiff towards western side and occupied portion of his property and put up construction. The action of the defendant is unauthorised. The suit was, therefore, laid for declaration of title and other reliefs mentioned above.

3. In the written statement, the title of the plaintiff was disputed. It is said that since he is not a party to the partition suit, the decree is not binding on him. Again, since the plaintiff did not take possession pursuant to the final decree, he cannot be said as enjoying the property. It is further said that long before the institution of the suit, there was a boundary separating the two properties of plaintiff and defendant. Before the institution of the suit, he applied to the local Authority to get licence for putting up construction. After inspection, licence was granted. Plaintiff who is a local resident, was a passive on looker and never protested to the construction being made. He spent more than Rs.70,000 for the construction. In paragraph 4, it is further said that ten years before institution of the suit, there was a separating fence between the two properties, and on the side of the fence, he has planted coconut saplings. After removing,some of the coconut saplings, the construction Was made. Since the plaintiff did not object to the construction, he proceeded with. the construction. Regarding the plan filed along with the plaint, ‘it is said that the same does not represent the. real state of affairs and the same cannot be accepted. The mandatory injunction sought for in the plaint should not be granted. He said that in case the.Court finds that he has encroached into, the plaintiff’s property, he is prepared to pay compensation, and the. construction was made bonafide.

.4. Both the courts below have found title in favour of the plaintiff. It further found that the defendant has encroached into the plaintiff’s property and has put up construction. The same was directed to be demolished and decree for recovery was also granted, v Even though the appellant seriously disputed the correctness and validity of the Comrnisiuoner’s Report, it was not seriously pursued before this Court.

5. It is against the concurrent judgments, this second appeal is filed.

6. At the time of admission of the second appeal, the following questions of law were raised for consideration:

"(1) Whether the plaintiff is estopped from claims ing the relief of demolition of the building on the ground of acquiescence in the, construction? and

(2) Whether the court below committed an error in.placing reliance upon the. report and plan of the Commissioner when the Commissioner, was not at all examined?"

7. Of the two questions raised, only one. question was argued by learned counsel for {he appellant, i.e., the principle of estoppeland acquiescence. Regarding the second question, as I said earlier, the same was not pursued by learned counsel. On merits, ‘I do not think the learned counsel will be justified in chal-lenging the Commissioner’s Report The main reason for disputing the correctness of the Commissioner’s Rep