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TMI Blog1951 (3) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... site in suit. It is part of the abadi of the village. The learned appellate Judge found that in about the year 1940 the Respondent spent about ₹ 900 in building over the site. In 1943 the lambardar objected to the construction and asked him to remove the same. On his failure to do so, the suit was instituted in 1944. The learned appellate Judge found that there was acquiescence on the part of the lambardar and that the abadi site in possession of the Respondent was not sufficient to meet his requirements as his family was growing. He accordingly held that the Respondent could not be ejected both on the ground of acquiescence as well as on the ground that he could purchase the site as he needed a bigger site. 3. In appeal it is conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not open to a tenant to purchase a particular house and then claim to retain possession on the ground that he requires a larger site than he has. The actual decision in - Nilkanth v. Vishwanath (C)(supra) however related to an 'abadi' site acquired by a co-sharer without the consent of the lambardar. The decision was that the co-sharer was liable to be ejected. In reaching that conclusion, the Division Bench derived support from the decision in - Bapu v. Ganpat (A)(supra). The rule in - Nilkanth v. Vishwanath (C) proceeds upon the fundamental principle that the lambardar has been given the express power of allotting 'abadi' sites and village management might become impossible if it were open to every petty co-sharer to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 'obiter' as the period of inactivity under consideration was for 12 years 9. Narain v. Behari (E)(supra) is easily distinguishable. That was a case of a purchaser of a house on the 'abadi' later diverting it to agricultural purposes. Whatever the observations might have been, the landlord's claim for possession was decreed. 10. In - Dhunnoo v. Sheolal (P)(supra) Macnair A.J.C. held that the landlord could not eject the Defendant who had constructed a building on the village 'abadi' without the consent of the former. The ground of the decision was that the inactivity of the landlord for a period of 8 or 10 years with the knowledge of the construction induced a 'bona fide' belief in the Defendant that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nandkishore v. Damodar AIR 1942 Nag 59 (J). 13. In the first case - Kuwarji v. Bhurelal (I)(supra) Stone C.J. observed at P. 165: The word 'acquiescence' is used by the learned lower appellate Judge as though it were an effective defence once it was shown that the Plaintiff had stood by with knowledge of his rights and without suing for a year or two-such a time as would show laches on his part or would show that he was slow to exercise his remedies. If that were sufficient to raise the defence of acquiescence we would observe that no meaning whatever could be given to the Articles, we have been examining of the Limitation Act. Under the law relating to limitation knowledge of one's right to sue does not contract, though igno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up-those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the Plaintiff must have made a mistake as to his legal rights. Secondly, the Plaintiff must have expended some money or must have done some act (not necessarily upon the Defendant's land) on the faith of his mistaken belief. Thirdly, the Defendant, the possessor of the legal right, must know of the existence of his own right which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nything to suggest that the landlord kept quiet knowing that the tenant was acting on a 'mistaken view' of his rights. It cannot therefore be held that the landlord acquiesced in the acts of the Appellant. 17. The Appellant tried to derive some support from the 'wajib-ul-arz'. But it does not help him. In fact Clause 7 is clear that the house sites are not transferable save under conditions applying to the transfer of holdings i.e. with the consent of the landlord. 18. The appeals are allowed with costs throughout. In each case the decree of the lower appellate Court is set aside and that of the trial Court is restored. 19. The Respondent is granted six months from the date of the decree of this Court for removing the str ..... X X X X Extracts X X X X X X X X Extracts X X X X
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