Court reverses appeal decisions, restores judgment for possession. Plaintiff can reclaim land if structures removed.

The court reversed the decisions of the first court of appeal and the Subordinate Judge, restoring the judgment of the Additional Munsif. The plaintiff's suit for possession was decreed, allowing the plaintiff to reclaim the encroached land after the defendants remove the structures within six months. The appeal was allowed, but no costs were awarded to the plaintiff due to the peculiar circumstances of the case.

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Issues Involved
1. Whether the finding of acquiescence by the first court of appeal is correct in law.
2. If no acquiescence or waiver on the part of the plaintiff, can he be awarded a decree for compensation in lieu of encroachmentRs.

Detailed Analysis

Issue 1: Acquiescence in Law
The first issue pertains to whether the finding of acquiescence by the first court of appeal is legally correct. The principle of acquiescence requires that parties must be fully aware of their rights to dispute the claims of others. Acquiescence must be shown to be an intentional act with knowledge. The court referenced several cases to elucidate this principle, including 'Bhonu Lal Chowdhury v. W.A. Vincent' and 'Premila Devi v. Peoples Bank of Northern India, Ltd'. The court concluded that there can be no acquiescence or waiver in a case where both parties are unaware of their rights concerning the disputed property and are laboring under a mutual mistake. Therefore, the court determined that the plaintiff did not acquiesce to the encroachment and is not estopped from claiming possession of the encroached land.

Issue 2: Compensation in Lieu of Encroachment
The second issue is whether the plaintiff can be awarded compensation instead of the recovery of the encroached land. The court examined the principles of equity and estoppel, particularly focusing on the case 'Ramsden v. Dyson'. The court noted that for equity to prevent the plaintiff from reclaiming the land, it must be shown that the plaintiff knowingly allowed the defendants to build on his land without objection. Since both parties were mistaken about their rights, no such equitable rights arose in favor of the defendants. The court also reviewed the applicability of Section 115 of the Indian Evidence Act, which deals with estoppel by conduct. It was found that the plaintiff did not make any representation that induced the defendants to act in a particular way. Therefore, the plaintiff is not estopped from seeking possession.

The court further referenced cases from the Bombay High Court, including 'Govind Vankaji Kulkarni v. Sadashiv Bharma Shet' and 'Jethalal Hirachand v. Lalbhai Dalpatbhai', which held that a trespasser cannot compel the property owner to accept compensation against their will. The court concluded that awarding compensation in lieu of possession is contrary to law and equity as it allows a trespasser to purchase another's property against their will.

Conclusion
The court reversed the decisions of Mr. Justice Misra and the learned Subordinate Judge, restoring the judgment of the Additional Munsif. The plaintiff's suit for possession was decreed, allowing the plaintiff to reclaim the encroached land after the defendants remove the structures within six months. The appeal was allowed, but no costs were awarded to the plaintiff due to the peculiar circumstances of the case.

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