- (1.) This second appeal, at the instance of the plaintiff, comes back to this Court after having had once been remanded by this Court. Plaintiff is the trustee and She bait of a Debottar estate. Under the Debottar estate, one Ramdayal Bhakat was a tenant in respect of a certain plot of land, measuring about 2 cottas and 6 chittaks, being part of premises No.84b, Cossipore Road, within the municipal limits of Calcutta. According to the plaintiff, the defendant Ramdayal Bhakat was a thika monthly tenant, paying a rent of Rs.5-15/- per month. On the land in suit he had a non-permanent structure, built of mud walls on split bamboos and having a corrugated iron sheet roofing. In or about the month of December, 1956, the defendant dismantled the said hut and in its place started raising permanent brick walls upon pucca plinth, without the knowledge and consent of the plaintiff. On coming to know that the defendant had started construction of a permanent nature, the plaintiff called upon the defendant, in writing, not to proceed with the work and also to demolish the structure so far raised. The notice sent to the defendant, under registered post, came back with the endorsement 'left'. The notice sent through the plaintiff's Durwan was, however, personally served on the defendant. The notices notwithstanding, the defendant continued the work of construction with re-doubled energy.
(2.) It was in these circumstances than the plaintiff instituted the suit, out of which this appeal arises, claiming permanent injunction against the defendant restraining him from raising permanent structure on the disputed land and also mandatory injunction for demolition of the structure already raised. The suit was filed on March 4, 1947. During the pendency of the suit Ramdayal Bhakat died and his heirs were substituted in his place. Apart from certain technical objections as to the maintainability of the suit, the main defense of Benarasi, widow of Ramdayal, and Dhurup, minor son of Ramdayal, represented by his mother and guardian, who are respondents Nos.1 and 2 in this appeal, was that the suit was barred under the principle of waiver, estoppel and acquiescence, because the said Ramdayal had constructed the structure only in place of and in substitution of the old structure, with the knowledge and permission of the plaintiff landlord, who had, at one stage, even encouraged the tenant to build the new structure. The trial court accepted the plaintiff's case as true and being of the opinion that the permanent structure had been constructed by a thika tenant without the knowledge and consent of the plaintiff landlord, decreed the claim for injunction as made.
(3.) An appeal to the lower appellate court, at the instance of the defendants, against the decree for injunction failed. The defendants, Benarasi and her minor son, preferred a second appeal to this Court, being S. A. No.630 of 1949. By his judgment and decree, dated August 19, 1952, Renupada Mukherjee, J. remanded the case to the lower appellate court for being re-heard. I quote below the relevant extract from the judgment of remand: "in the first place, it was contended that the tenancy of the appellants, whatever might be its nature, was still subsisting and the appellants were prepared to remove the structures at their own costs and without claiming any compensation from the plaintiff on the determination of their tenancy, if it were found that they had no right to build any permanent or substantial structure upon the land covered by the tenancy. The question would, therefore, become material as to the time of construction of the structures, viz. , whether the entire work of construction was completed before the institution of the suit or after. The lower appellate court's dealing with this matter does not appear to be very satisfactory. In my judgment, the appeal must be remanded to that Court for a clear and definite finding as to the time when the constructions were completed, and if necessary, the parties should also be allowed to adduce additional evidence on this point. I may, however, observe that along with the other points that had previously been urged before the Lower Appellate Court, that Court will further decide the following two points: (1) Whether the construction of the structures was completed before or after the institution of the suit in the Trial Court, (2) If the structures were completed before the institution of the suit, whether an order for demolition should be made on keeping in view the fact that the tenancy of the appellants has not yet been determined and also the fact that the appellants have undertaken in this Court to remove the structures at their own costs after the determination of the tenancy, if it is determined at any time, without claiming any compensation from the plaintiff. ";