JUDGMENT
P.C. Agrawal, J.
1. This is a second appeal by the appellant against the reversing judgment of the learned First Appellate Court.
2. Appellant is the real elder sister of the respondent. Their houses are contiguous. House of respondent was constructed on nazul land let out to him in May, 1967 vide lease deed Ex. P-5. House of appellant is situate on nazul land allotted to him vide Ex. D-l, dated 19-6-84.
3. The respondent has filed a civil suit for removal of support of thatching and the thatching itself and for demolition of her walls contiguous to the house of respondent. As per plaint, the respondent is the owner of western wall of his house AB. The appellant has not constructed any wall of her own contiguous to it and has kept the support of her thatching on such wall and has damaged the support of thatching of the respondent. It is also claimed that the appellant has joined her walls at places AB in the wall of the respondent. As per plaint these acts of the appellant have been unauthorised and cause damage to the respondent. It is claimed that the appellant did not digest despite several oral protest of the respondent. Hence a notice dated 20-7-89 was sent by post which was refused by the appellant.
4. On the other hand the appellant has claimed that she has not kept the support of her thatching on the wall of the respondent, nor her walls joined with the wall of respondent at points A & B. It is claimed that she had come to live at her parent’s place being harassed by her in-laws and the respondent had got constructed her house. According to her the construction was done with the active co-operation and knowledge of the respondent who never objected to such construction at the time when such construction was in process. However as the son of appellant did not marry according to the wishes of the respondent there has been a rift between the brother and sister and false suit has been filed to harass the appellant.
5. The Trial Court accepted the defence taken by the appellant of acquiescence and did not order either demolition or any removal, though an injunction against any further construction on respondent’s wall was granted. However, the learned First Appellate Court did not agree and held that no casement was created in favour of the appellant under Section 15 of the Easements Act. It was further held that an estoppel by acquiescence was not pleaded by appellant and thus the appeal was allowed with a direction for removal of the support of the thatching and keeping such thatching on a wall to be constructed by the appellant.
6. This second appeal was admitted on 4-1-93 on following substantial question of law:–
“Whether in view of the facts and circumstances of the case, the
finding that the “Baderi” of the appellant rests on the wall of the defendant, is perverse ?”
7. Having heard advocates of both the parties and perusal of the record and judgments of both the Courts below. I proceed to decide this question.
8. Both the Courts below have concurrently held that the support of thatching of the appellant on a part of thatching is resting on the wall of respondent and the walls of appellant have joined at points A and B to the wall of respondent. Both these findings are based on appreciation of evidence on record. No material evidence has been overlooked nor any inadmissible evidence has been considered to come to such a finding and as such there is no scope for interference in such a finding of fact. Ishwar Dass Jain v. Sohanlal (AIR 2000 SC 426). It is not a case of misreading of evidence leading to miscarriage of justice. Neither a case of no evidence and thus the finding is not perverse to invite the ratio of Rohini Prasad v. Kastur Chand (AIR 2000 SC 1283), hence such a finding being unassailable is confirmed in this second appeal.
9. However, malady lies elsewhere. Obviously the appellant had never claimed any easement. Actually she had claimed either consent or acquiescence and consequent estoppel. Thus the reliance of the learned First Appellate Court on Section 15 of the Easements Act, 1882 which provides for acquisition of easement by prescription has been completely out of place. The learned First Appellate Court has completely misdirected himself in relying upon Gangaram v. Mst. Hulsi (AIR 1955 NUC 5027), Radha Bai v. Elding [1988(1) MPWN 141], Mahavir and others v. Smt. Dayavati (AIR 1977 All. 393) and Ram Ramgopal v. Gopikrishna (AIR 1957 MP 227). There was no question of any easement in the present case. Neither the respondent nor the appellant had based either their defence or claim on easement.
10. The learned Trial Court on appreciation of evidence of witnesses whose statements were recorded by him has come to a definite conclusion that the respondent had cither consented or acquiesced in such act of the appellant. Of course the learned First Appellate Court in setting aside such a finding of fact had not been alive to the well established principles of law as propounded in Santosh Hazari v. Purushottam Tiwari [2001(3) M.P.H.T. 71 = AIR 2001 SC 965], which defines scope of power and duty of the First Appellate Court in the following words :–
“While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the Trial Court must weigh with an Appellate Court, moreso when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment.
Secondly, while reversing a finding of fact the Appellate Court must
come into close quarters with the reasoning assigned by the Trial Court and then assign its own reasons for arriving at a different finding.”
11. The learned First Appellate Court has not kept the mandate of Order 6 Rule 2 of the Code of Civil Procedure in opining that there had been no plea of estoppel under Section 115 of the Evidence Act that only pleading should state only material facts and not law. M.S.E. Board v. Madhusudhan Doss (AIR 1966 Bombay 160), and Guruswami v. Vengiguswami (AIR 1963 Madras 71). Though legal pleas can be taken, yet reference to a particular law is unnecessary. Pleadings use the exact language of the statute of which the plea or defence is based Ramswarup v. Bishan Narain Inter College [1987 (2) SCC 555]. The legal consequences which flow from material facts need not be stated. If the legal consequences are inaccurately or incompletely stated that does not shut out from arguing point of law which arise on the facts pleaded Karsales Ltd. v. Wallis [1956(2) All. ER. 866].
12. Doctrine of “Standing by” estoppel by acquiescence is best enunciated :–
“Lord Campbell in Cairncross v. Lorrimer, 3 LT 130 ; Generally speaking if a party having an interest to prevent an act being done has full notice of its being done, and acquiesce in it, so as to induce a reasonable belief that he consents to it and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license.”
“Cottenhan LC, in Duke of Leeds v. Amherst, 1846 78 RR 47: 2 Phillips 117 : If party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word ‘acquiescence’.”
Doctrine of Acquiescence.– If a party interested in preventing an act being done has full notice of its being done and acquiesces in it, he will be estopped. Though mere acquiescence is not equivalent to consent, yet consent need not be by word and may be by act, and if consent can be intimated by conduct as well as by act, it is clear that the acquiescence may, under certain circumstances be taken to be consent (Umaram v. Puruk, A 1925 C 993 : 85, IC 540).”
13. Here in the present case it is the definite case of the appellant that the respondent being her brother had actively taken part in construction of her house and had allowed to take support of his wall and to join the ends to her walls at points A and B of the respondent wall. Obviously such building operation continued for a period of about 2 months. The respondent whose
house was contiguous did never object to such support or joining the wail. Now after two years of such construction he has turned round and claimed either demolition or removal of construction which have been encouraged, consented and acquiesced by him. Section 41(g) which prohibits a grant of injunction provides that to prevent a continuing breach in which plaintiff has acquiesced has been enacted with such object and purpose to prevent fraud. Of course grant of injunction is a discretionary remedy. In the facts and circumstances of the present case such grant of injunction was against the basic principles of equity, justice and fairness. The respondent had first actively encouraged and consented construction. He had stood by when such construction was being made. After such a construction was complete he woke up suddenly and started claiming removal or demolition of the same after two years. Such an attempt of respondent could not be successful explanation for his earlier inaction when construction was going on that the appellant had assured him that she would remove or demolish such construction later on is quite unbelievable. The Trial Court had been right in holding that nobody constructs or builds with the object or intention to demolish the same later. Of course, there was no reason why the respondent should have been duped by any such lame assurance. Obviously such a lame assurance was merely a pretext or false explanation for not taking any action in time. Thus, obviously the civil suit for injunction filed by respondent had no merit in it. The same should have been dismissed to the extent learned Trial Court had done. The question answered accordingly. However, in the facts and circumstances of the case grant of injunction against further or future interference as was done by the learned Trial Court was neither improper nor unjust. Hence the impugned judgment and decree of the First Appellate Court is hereby set aside and the judgment and decree of the learned Trial Court is affirmed and restored.
14. The appeal is allowed with costs. Advocate’s fees as per schedule.