Brough, J.These are a series of analogous second appeals from concurrent findings of the Munsif of Dhanbad and of the Subordinate Judge of Purulia in a number of ejectment suits brought by the Raneeganj Coal Association Ltd. against persons who were in possession of lands and premises in village Kustore. The learned Munsif passed orders for ejectment without compensation and his orders were affirmed by the learned Subordinate Judge. Pending this appeal an application was made to this Court for stay of execution, but on hearing the parties and reading the affidavits that were filed the Court decided in view of the urgency of the matter that the appeal should be expedited and heard by the vacation Court.

2. The circumstances in which these suits came to be brought as disclosed by the findings of the Courts below and the evidence filed in this Court on the stay application are as follows: The plaintiff company carries on extensive coal mining operations in the Jharia coal field. In Kustore they have acquired mining rights from the Raja of Jharia, they have also got a mukarrari lease of the surface from the Raja and they have acquired from certain intermediate tenure-holders referred to in the proceedings as the Patnaiks all their interest in the khast, homestead and other lands. When the plaintiffs began coal mining operation in this district about, 25 years ago a number of persons were attracted to the neighbourhood for the purpose of ministering to the needs of the colliery workers. Among these persons were the defendants in these suits or their predecessors in title who came to village Kustore and took settlement of plots of land from Patnaiks on which they erected--originally temporary and subsequently permanent--structures in which they carried on trade as shopkeepers and so forth, no doubt to the mutual advantage of themselves and the colliery workers whom they served. The plaintiffs are now desirous of working out the coal underlying the whole of this village in such a way that they will probably lot down the surface. Under the mining regulations in force in this province however it is forbidden to remove the pillars of coal under or within specified limits of existing buildings.

3. The plaintiffs have reached a stage in their mining operations at which they can go no further without removing the pillars. It is therefore necessary for them to get rid of the buildings erected on the surface. For this purpose they served the ejectment notices which were preliminary to these suits. It is a material consideration in this case that the plaintiffs object is not to acquire but to get rid of the buildings. The urgency of the matter is that unless the plaintiffs can proceed immediately to work out the seam underlying this village they will not be able to fulfil their contracts for the supply of coal to the Tata Steel Company and other persons, the seriousness of which at the present juncture need not be emphasised.

4. The substantial questions that arose both at the trial and on appeal were questions of law and the importance of those questions appears to have overshadowed in the mind of the Subordinate Judge the necessity for recording a clear finding of the facts of the case. Fortunately the matter is not of great importance because the case proceeded and this appeal has proceeded upon the footing that the allegation in the written statement of the defendants was proved. In point of fact the learned Munsif did express some doubt as to whether that was so, but he proceeded in his judgment (to which I should like to take this opportunity of paying tribute for its careful reasoning and clear expression) upon the footing that the defence was proved; that defence--I am quoting from his judgmen--was

that they or their predecessors in interest took settlement of the land in suit several years ago from the Fatnaik landlords in permanent tenancy rights for constructing houses therein and constructed valuable pucca houses and other structures thereon in exercise of their permanent rights with the knowledge and consent of the Patnaik landlords who never objected to the construction of the houses.

5. In reply to that plea the plaintiffs contend that the settlement not being by registered instrument (and the defendants do not and have never alleged that it was by registered instrument) is void under the provisions of Section 107, T.P. Act, and that accordingly the tenancy of the defendants is u/s 106 of the same Act deemed to be a lease from month to month terminable either on the part of the lessor or the lessee by IS days notice expiring with the end of the month of the tenancy. The replication of the defendants was on the first and the main point, I am deliberately using the vaguest expression, that by virtue of the doctrine of estoppel they are entitled not to be ejected. They further say that if they are wrong on the first point, they are, by virtue of some equitable principle entitled to require the plaintiffs to pay them compensation for the buildings they have erected notwithstanding that they are of no value to the plaintiffs. They also say that the notice to quit was not in accordance with Section 106, T.P. Act, and that they have acquired a good title to the property under the Limitation Act.

6. The first point for consideration therefore is whether notwithstanding the fact that the defendants permanent tenancy is not by a registered instrument and therefore void u/s 107, the defect can be cured by the doctrine of estoppel. For that purpose it would be convenient to begin by seeing what the doctrine of estoppel is. In England, where the doctrine originated, it was defined in Co. Litt. 352a as follows:

Estoppel is when one is concluded and forbidden in law to speak against his own act or deed, yea, though it be to say the truth

and that definition has been modernised, but not, so far as I can see, altered and is set out in Halsburys Laws of England, 2nd Edn., in the opening paragraph of the title "Estoppel" as follows:

Estoppel may therefore be denned as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability

and the author proceeds to quote Bowen, L.J. in Low v. Bouverie (1891) 3 Ch. 82, "estoppel is only a rule of evidence." The doctrine was imported into this country and now finds its place in Section 115, Evidence Act, which is as follows:

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 neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing.

7. The English rule was a rule of law administered by the Common Law Courts but the Courts of Equity had a similar rule which they administered in proceedings in those Courts. Since the Judicature Act of 1873 the two rules have of course been amalgamated, but I cannot find, except that they were applied to different sorts of proceedings, that there was any material difference between the rules. It is perhaps not quite accurate to say that estoppel is a rule of evidence. It must, at any rate, in its origin have been a rule of pleading and I think that it is both a rule of pleading and evidence because it is clear from Forbes v. Ralli AIR 1925 P.C. 146--to quote no other decisions--that it extends to things which are matters of pleading and not proof. In that case a party was held to be estopped from disputing the effect of a document which of course is not a matter of evidence but which would be a matter of pleading. I am inclined to think that in this country there is no room for any application of the doctrine of estoppel outside the provisions of Section 115, Evidence Act, but for the purpose of this case, if there is an estoppel, it is, so far as I can see, within the terms of that section. Certain learned Judges including some of the greatest eminence have used the expression that a party is estopped from suing in ejectment. No doubt such expression sufficiently expresses the result of the decisions; but I cannot help thinking that its use has sometimes led to confusion of thought in other Courts. As I understand it, a party is not estopped from suing; he is estopped from making the allegation necessary to enable his suit to succeed.

8. If the view I have just expressed is correct, it is immediately apparent that on the first point the plaintiffs must succeed. They make no allegations, they simply accept all the allegations made by the defendants and say "admitting everything you allege, still by virtue of Sections 107 and 106, T.P. Act, we are entitled to eject you." However, the matter is not free from authority and it will be necessary to consider whether this view is in accordance with the authorities which are binding upon us. The learned advocate for the appellants relied principally upon two cases, AIR 1925 146 (Privy Council) in which a decision of this Court was affirmed by the Privy Council and Gursahai Mahto v. Jogeshwari Prasad Singh AIR 1937 Pat. 454 a decision of a Division Bench of this Court. AIR 1925 146 (Privy Council) will not help the defendants at all. That decision was epitomised by Lord Russell of Killowen delivering the judgment of the Privy Council in AIR 1931 79 (Privy Council) as follows:

It was a case in which the plaintiff in ejectment was held estopped u/s 115, Evidence Act, 1872, from denying that a certain registered written agreement was an agreement for a permanent tenancy.

9. He added that it was obviously no authority to assist the respondent before him and I can only echo his observation. It is no authority to assist the appellants. Gursahai Mahto v. Jogeshwari Prasad Singh AIR 1937 Pat. 454 is on the face of it much more in point. The fact giving rise to the estoppel in that case was the acceptance by the landlord of a salami for consent to a transfer, the terms of which consent were put into writing and I ought to add that the defendants in some of these cases are not the persons who originally took settlement but transferees. The case, however, is extremely unsatisfactory. It was a Letters Patent appeal from a judgment of Wort J. reported in Munshi Mahton v. Jugeshwari Prasad Singh A.I.R.1936 Pat. 133 and it is not very clear what the facts of the case were or what points were argued in the Letters Patent appeal. No reference is made in the Letters Patent appeal to any section of the Transfer of Property Act except Section 53A. It does however appear from the recital of facts that Section 107, T.P. Act, had no application to the case. The transfer took place in 1922 and the tenancy transferred had been then in existence for a period described by the learned Chief Justice as some 40 years. It is therefore probable that the tenancy originated before the coming into force of the Transfer of Property Act on which basis the case was nothing but another instance of the application of the rule in AIR 1925 146 (Privy Council) . In any case having regard to the decision of the Privy Council in AIR 1931 79 (Privy Council) (which was not cited in the Patna case) I cannot regard it as an authority for the proposition that a permanent tenancy can be created by estoppel without a registered instrument. In my view the matter is concluded by the decision of the Privy Council in AIR 1931 79 (Privy Council) . In that case there was a verbal agreement for the grant of a permanent lease in anticipation of the execution of which the lessee went into possession and erected structure!, with the knowledge and approval of the appellant and on those facts the board held that having regard to the provisions of Section 107 the lessee was liable to be ejected. In the course of his judgment Lord Russell of Killowen said referring to certain earlier decisions

nor do their Lordships understand them to mean that equity can override the provisions of a statute and (where no registered document exists and no registrable document can be procured) confer upon a person a right which the statute enacts shall be conferred only by a registered instrument.

10. The learned advocate for the appellant referred to various cases to show that in the circumstances of those cases the leases of the defendants were intended to be permanent. But I need not consider those cases. I am assuming that the Patnaiks did make an express oral grant to the defendants of a permanent tenancy. The defendants cannot put their case higher thanthat and that in fact is the case they make in their written statements. Nevertheless for the reasons I have endeavoured to express and following the decision in AIR 1931 79 (Privy Council) which repeats the well known principle that there can be no estoppel against a statute, I am bound to hold that this oral grant did not operate to confer on the defendants more than a monthly tenancy. The defendants were not altogether without remedy because I have no doubt if they had acted with reasonable diligence, they could have compelled the Patnaiks to give them a registrable document. They did not attempt to do so and their rights are now barred by the statute of limitation. They cannot claim to have a valid lease by estoppel. It is obvious that if they could, Section 107 might as well be repealed because almost every case of an oral lease would be followed by an entry and expenditure of money by the tenant to the knowledge of the landlord which, if the tenants contention were correct, would operate as an estoppel. I have no hesitation in saying that the judgment of the learned Munsif and the Subordinate Judge on this point is correct.

11. It was also contended that the notice to quit was not a compliance with Section 106. But this contention was negatived by both the Courts below and it rests substantially on questions of fact and was not seriously pressed before us. It was also suggested that the defendants having been in possession for 20 years or more had acquired a title under the statute of limitation but nothing can be clearer than that a person who is admittedly in possession as tenant paying rent cannot prescribe against his landlord, and this point also was not pressed.

12. There remains the last and what is really the most important point in the case, that is to say, whether the defendants are entitled to compensation. They recognise that they cannot hope to continue in possession because even, if they fail in this suit the Colliery Company could at the cost of, it is true, considerable time and money obtain compulsory powers, to eject them. It is important to bear in mind that this question of compensation in the present case is one between landlord and tenant. The old Common law rule applicable in this province was finally settled by a Full Bench of the Calcutta High Court presided over by Sir Barnes Peacock, C.J. in 1866 in Thakoor Chunder Poramanik v. Ramdhone Bhuttacharjee (1966) 6 W.R. 228 in the following terms:

If he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil.

13. The rule left the choice with the owner of the soil and it will be seen that it extends to cases other than cases of landlord and tenant. The Transfer of Property Act modified the rule. A person who had no title but believed that he was absolutely entitled was covered by Section 51 which entitled him to require the owner of the soil to compensate him for the improvement. As regards lessees, their rights were protected by Section 108(h) which provided that in the absence of a contract or local usage to the contrary the lessee might remove all things which he has attached to the earth provided he left the property in the state in which he received it. There is no question here of any local usage, neither is there any contract. The question is whether on equitable principles (I use the vague words because I have not been able to understand precisely what equitable principle) a tenant is in the circumstances of this case entitled not to the right given him by Section 108(h) but to a different right in effect that given to a different class of persons by Section 51. It is of course clear that a tenant can contract to be paid compensation, the section says so, and I have no doubt that under certain circumstances a landlord would be estopped from denying the existence of a contract to pay compensation although in fact no such contract existed. But that is not the case here. I have already quoted from the judgment of the learned Munsif what the defendants case was, namely, that they constructed valuable structures in exercise of their permanent rights with the knowledge and consent of the landlord. Unfortunately for them their permanent rights are invalid, but they nevertheless say that the operation of Section 108(h) is excluded, because they thought they had rights and the landlords knew that they were building and stood by. I have no doubt that it was the conduct of the Patnaik landlords which has given rise to this litigation and one or other of the parties (both of whom, I am sure, have acted in perfect good faith, although so far as the defendants are concerned very ill advisedly) must suffer for the Patnaiks action.

14. The industry of Counsel has enabled them to refer the Court to, I believe, all the relevant authorities but I will say at once that cases which do not deal with the effect of Section 108(h) are in my opinion of no value. The first case in which compensation was allowed was Badal Chandra Sadhukhan Vs. Debendra Nath Dey, which was a decision of Mukerjee J. sitting alone. This was clearly a case to which the section would apply, but it does not appear to have been referred to; none the less the learned Judge held that he must give effect to the equitable estoppel and award compensation. It was a case very similar to this in which the tenants thought that they had a permanent tenancy right which the Courts held to be bad. That case was succeeded by a decision of a Division Bench of the Calcutta High Court of which Mukherjee J. was a member-- Mohammed Ali Khan Vs. Kanailal Haldar and Others, which must be considered with a little care. The same sort of facts existed in that case and the tenants claimed to have spent large sums in clearing the property of tenants and also in erecting structures and the Court held that as regards payments made for clearing the land which were inseparable from the land compensation might be awarded but as to the structures they said that the landlord was not bound to take the structures or to pay compensation, the tenants could remove the structures. In other words, they applied Section 108(h) although it does not appear that the section was referred to in terms.

15. The next case which was the case on which the defendants principally relied was a decision of a Division Bench of this Court, Maina Sahu v. Balak Das AIR 1938 Pat. 435 . That case is apparently precisely in point and ordinarily it would be the duty e of this Court to follow it. But with great respect to the learned Judges who decided it I cannot accept it as an authority for the proposition that equitable principles can override the operation of Section 108(h), T.P. Act. That section was not quoted to the Court which professed to follow the two Calcutta cases mentioned above; no other cases were referred to. I am afraid that the full terms of the report of those cases cannot have been brought to the attention of the Court. The single Judge decision was obviously made without full argument and the Bench decision was not only no authority for giving compensation but was direct authority for refusing it. For these reasons I cannot accept the authority of that case.

16. We were also referred to a single Judge decision of the Allahabad High Court--reported in Karan Singh and Another Vs. Budh Sen and Others, . The improvements in that case consisted of additions to the existing buildings which, it may be said, were not capable of being removed, but the case was one of license and not lease so that the provisions of Section 108(h) did not apply. In my judgment the provisions of the Transfer of Property Act as to leases form part of the codifying statute and are intended to be complete on all points they deal with. On subjects which are not dealt with, for instance, improvements which are not affixed to the earth, equitable principles, not embodied in a contract, might apply. In my opinion, however, where the Act contains a specific provision, as for instance, with things attached to the earth, the provision of the Act must apply and there is no room for the application of the equitable principles. That was clearly decided by a Division Bench of the Calcutta High Court in Ismail Khan Mahammad v. Jaigun Bibi (1900) 27 All. 496 which also decided that the application of Section 51 by analogy in the case of lessor and lessee was not permissible; that decision was made after full argument and is directly in point and is one I should desire to follow. The judgment of the Privy Council in Lala Beni Ram v. Kundan Lal 21 All. 496 is also material. In the course of the judgment Lord Watson said that in England the mere erection by a tenant of permanent structures with the knowledge and without interference from the lessor raised no equitable right and pointed out that the maxim that what was built on the soil went with the soil did not apply in India but that the rule was that of Section 108(h), T.P. Act. It is also to be observed that in AIR 1931 79 (Privy Council) which was very similar to this one it was not oven argued that the landlord was bound to pay compensation, for the structures, although that would almost certainly have been more profitable than mere permission to remove them. None of the other cases to which we were referred, in my view, throw any real light on the problem as this aspect of the case appears never to have been discussed. There are two or three old Bombay cases in which compensation was awarded, but it is clear that the application of the Act was never considered, and there are also a large number of cases going down to the present day in which, as in AIR 1931 79 (Privy Council) , an order for ejectment wan made with liberty to the ejected tenant to remove his structures.

17. The landlords no doubt granted or contracted to grant permanent rights, and on the faith of those rights the tenants erected their structures. The tenants could have sued for the grant of a registrable lease, but did not do so. I have already held they are not entitled as an alternative remedy to permanent rights by estoppel notwithstanding Section 107, T.P. Act, and I must also hold that they are not entitled as a further alternative to compensation for their structures notwithstanding Section 108(h). In my view the judgment of the Courts below on this point is correct and the only proper order to make is the one that they made. In the result, therefore, I would dismiss these appeals with costs, one set of hearing fees, of five gold mohurs to be distributed amongst the cases covered by this judgment.

Sinha J.

I agree.