1981 Supreme(MP) 543

M. D. Bhatt, J.
Roopaji v. Joraji.
S. A. No. 262 of 1970 (J); Decided on 24-9-1981.

Headnote:(1) Estoppel -- rule of -- can be Invoked even In absence of pleadings if facts proved or admitted warrant.

        (2) Estoppel -- ingredients of -- representation -- action on such representation which is detrimental to the person represented.

        (3) Evidence Act, 1872 - estoppel -- when not available to the person building on anothers land -- construction not under mistaken ownership -- immediate steps taken by true owner -- principle cannot be invoked.

        (4) Evidence Act, 1872 -- S. 115 -- estoppel by acquiescence -- mere inactiveness for particular numbers of years not sufficient -- acquiescence, is mailer of legal inference of facts proved in each case.

        The present appeal of the plaintiff and so also the cross-objection of the defendant I1re directed against the lower appellate Courts judgment and decree, whereby, the trial Courts judgment and decree have been modified to a certain extent.

        Held : The defendantd`respondents resistance to his eviction is found to be based on the plea of estoppel which had been raised by his learned counsel, for the first time, hi the lower appellate Court even in the absence of any specific pleadings in this regard. If the facts admitted are proved warrant invoking of the rule of estoppel. There is no reason why such rule should Dot be made available to the party concerned, even in the absence of pleadings, when the facts and circumstance justify the same. Now, in the instant case, this rule of estoppel is attempted to be pressed in service, in face of facts and circumstances as already concurrently held by the Courts below, that the plaintiff had full knowledge regarding the defendants construction, and he simply lay by, without raising any protest; and thus acquiesced in the construction, raised by the defendant to invoke the doctrine of estoppel three conditions must be satisfied, (I) representation by a person to another, (2) the other shall have acted upon the said representation, and (3) such action shall have been detrimental to the interests of the person to whom the representation bas been made. See Gyarsi Bai v. Dhansukhlal, (AIR J965 SC 1055) and Bennet Coleman and Co. v. Punnya Priya Das Gupta, (AIR 1970 SC 426). It has equally been held in Hem Nalini Judah v. Isolyne Sarojbashoni Boss (AIR 1962 SC 1471) that estoppel can only arise as is clear from section 115 of the Indian Evidence Act, when one person has by his declaration act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, and when the other person did not act on that representation, no question of estoppel can arise. Then again it has been held in Maddanappa v. Chandramma (AIR 1965 SC 1812) that where a person concerned knows the true position, be cannot plead or urge that he was induced to hold erroneous belief by reason of conduct of real owner of that property. In Lali Pinjara v. yusuf Khan (AIR 1~39 Nag. 7) it has been held that where one person builds on the land of another, an abstinence by owner will pot be sufficient to raise the equitable estoppel against him. In addition to the abstinence on the part of the owner, there must be mistaken belief on the part of the builder that the land was his own. It is Hkewise further held ill Kalloo Egi v. Rishobha Kumar (AIR 1951 Nag. 347) that the limitations of the rule regarding standing by are that first the stranger building on the land belonging to another must do so supposing it to be his own, and secondly that the owner of the land, perceiving his mistake, abstains from setting up his right and leaves him to preservers in his error. But if a stranger builds on anothers land knowing it to be his, there is no principle of equity which would prevent the owner of the land claiming the land with the benefit of all the expenditure made on it.

        Now, in the instant case, none of three conditions, as pointed out, in Gyarsibai v. Dhansukhlal (supra) for invoking the doctrine of estoppel are found to be satisfied at all. No part of evidence shows, that the plaintiff had made any representation to the defendant to encourage the later to construct the house. The story of Benami transaction or the agreement between the parties for re-conveyance, as contended by the defendant in his pleadings, is already found to be disbelieved by the Courts below. Thus, prima fade section 115 of the Evidence Act does not help the defendant. One cannot travel beyond the scope of the requisite conditions, as laid down in S. 115 of the Evidence Act for construing estoppel against the true owner. Then again, the doctrine of estoppel by acquiescence is not available to the defendantd`respondent in the light of the facts and circumstances of the present case. Acquiescence is a matter of legal inference from the facts established in a case The mere inactivity of the person concerned for a particular number of years apart from anything else in the case does not necessarily lead to the inference of acquiescence (See Bakharia Dhuria v. Manak Ganpatram (AIR 1954 Nag, 97). But in the present case, there is concurrent finding of fact of both the Courts below that the plaintiff had knowledge regarding the construction raised by the defendant. No doubt, the plaintiff had not raised any protest in the matter of construction, but it cannot be said that he just lay by, for years together. It was in 1964 that the plaintiff had purchased the property. The defendants construction on a portion of such property was within a year or so. But the plaintiff, not allowing more time to waste is found to have given notice to the defendant to remove his construction and to deLi"Ver possession of the vacant land ( Ex. P-5 ) and just within 2 years of his initial purchase of property, is found to have filed the suit claiming eviction. In reason the part of the plaintiff is found to be, only for a brief period, and not for long. What is more important is the fact that both the plaintiff and so also the defendant knew full well that the property including the plot over which the defendant had constructed that house was of exclusive ownership of the plaintiff under the particular sale-deed ( Ex. P.1) dated 23-2-1964 There is no scope for confusion and ambiguity in the matter of plaintiffs title. Both the Courts below, negativing the defendants contention regarding the Benami nature of the transaction, have held that the plaintiff was the owner of the property, purchased by him including the open plot of land on which, the defendant, later on, constructed his house. The doctrine of estoppel will hence not be available to the defendant in such circumstances as he had full knowledge that the plaintiff was the owner and he himself had constructed the house despite his knowledge. His such construction was obviously thus at his own risk in the absence of any express or implied permission of the plaintiff for which there is no proof nor any circumstances leading to estoppel under section 115 of the Evidence Act being available at all to the defendant, the plaintiff obviously is entitled to recover back the encroached portion by getting the defendants super-structure removed there from. AIR 1965 SC 1055 , AIR 1970 SC 426, AIR 1962 SC 1471, AIR 1965 SC 1812, AIR 1939 Nagpur 7, AIR 1951 Nagpur 347 and AIR 1954 Nagpur 97 relied on. Appeal allowed.