Agarwala, J.The plaintiff-respondent sued to eject the defendant from a piece of homestead land which was settled with the defendant by the predecessor of the plaintiff in 1928. The land belongs to a Thakurbari in Patna and the lessor was, at the time of the settlement, the mohunt of the Thakurbari, who was subsequently removed and was succeeded by the present mohunt.

2. On the land in dispute the defendant has erected a pucca house. His defence to the action was that he was a permanent lessee and had paid Rs. 250 as salami for the land. The lower Appellate Court has found that there was a verbal agreement for a permanent lease and that Rs. 250 was paid by the defendant to the predecessor of the plaintiff as salami. The Courts below however have agreed in dismissing the suit on the ground that the lease being merely an oral one is unenforceable in law.

3. In second appeal by the defendant, it is contended that in equity the plaintiff should be restrained from ejecting the defendant; although it is admitted that apart from considerations of equity the defendant is not entitled to retain possession of the land for want of a properly registered lease. A similar argument was advanced in AIR 1931 79 (Privy Council) which was decided by the Judicial Committee of the Privy Council. That also was a case in which the owner of land sought to eject the defendant who claimed a permanent lease not evidenced by a document.

4. With regard to the contention that the defendant was entitled to retain possession on equitable principles their Lordships observed:

Whether an English equitable doctrine should, in any case, be applied so as to modify the effect of an Indian statute may well be doubted; but that an English equitable doctrine, affecting the provisions of an English statute relating to the right to sue upon a contract, should be applied by analogy, to such a statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statute says can only be created by means of a registered instrument, appears to their Lordships, in the absence of some binding authority to that effect, to be impossible.

5. It is contended however for the appellant that he is entitled to rely upon an equitable estoppel.

6. A similar contention was advanced in the case before their Lord, ships in the Privy Council and their Lordships dealt with it by observing:

This is no case of money being expended by the respondent in any mistaken belief as to his legal rights, or of the appellant knowing of the existence of any such mistaken belief, or encouraging the respondent by abstaining from asserting a right inconsistent with the acts of the respondent. Observe the true facts. In 1913, the respondent obtained a verbal agreement for the grant of a perpetual lease, under which agreement he could have sued for and obtained and registered an instrument creating his title to enjoy the property in perpetuity. That agreement continued to be enforceable against the appellant until the month of December 1921. The stsuctures were erected on the land many years before that date, and they were erected, not in any mistaken belief by the respondent of his rights in regard to the land, but in assertion of rights which he correctly believed to be his; not by reason of any encouragement or abstention on the part of the appellant, but by reason of the" agreement which he was then entitled to enforce against the appellant.

7. These observations apply exactly to the facts of this case. In 1928 there was a verbal agreement for the specific performance of which the defendant might have instituted a suit. The time for such a suit has expired with the result that the defendant has lost the remedy which was open to him. It is however contended that the representation by the lessor to the defendant estops the lessors successor from disputing the defendants right.

8. This aspect of the matter was also dealt with by the Judicial Committee in the case already referred to. With regard to it their Lordships said:

In truth, this case, when the true facts are appreciated, Is simple enough. The acts of the respondent are all referable to a verbal contract, which was enforceable against the appellant at the time when the respondents expenditure was incurred, and for long afterwards. Unfortunately, for the respondent, he allowed his right to enforce his contract to become barred with the result that he can only resist the appellants claim to possession by seeking to establish a title, the acquisition of which is forbidden by the statute. The statute disables him from contesting the appellants right to possession.

9. Here also, the act of the respondent in constructing the house is referable not to any representation by the lessor but to the verbal contract. The appellant however referred to the decision of the Judicial Committee in AIR 1925 146 (Privy Council) . That was a case in which there was a registered lease and a question with regard to the proper construction of this lease arose between the lessor and the lessee upon which the lessor wrote to the lessee that there was no objection to his building a permanent structure on the demised land and stating that the lease was a permanent one. It was held that this letter was a representation as to the nature of the lease which estopped the lessor from contending that the lease was other than permanent. The facts of that case and the decision in it have nothing to do with the facts of the present case.

10. Reliance was also placed upon a recent decision of this Court in Gurshai Mahton and Others Vs. Jugeshwari Prasad Singh and Others, . The facts of that case were that the defendants first party applied to the landlord for permission to complete the purchase of a residential house erected by the defendants second party who had been in occupation of the land for 40 years. The landlord gave his consent and received a salami from defendants first party. The consent was given in writing and the defendants first party took possession and paid the rent of the land to the landlord. It was held that although the document did not create any permanent tenancy it estopped the landlord from ejecting defendants first party. The facts of that case also are entirely different from the facts of the present case with which we are dealing.

11. In Gurshai Mahton and Others Vs. Jugeshwari Prasad Singh and Others, the act of the defendant first party in purchasing the house was not referable to any contract between him and the landlord but to the written permission which the landlord gave him. In my opinion, on the facts of this case, the defendant is not able to resist the plaintiffs suit in ejectment.

12. A further question arises however with regard to the building which has been erected by the defendant. On behalf of the respondent it is contended that the granting of a permanent lease being beyond the powers of a mohunt and the defendant, placing his case at its highest, having taken his lease from such a disqualified owner is not entitled to any compensation but only to remove the materials of the building. It has been found however by the learned District Judge that the settlement of this land by the mohunt was necessary in order to enable the Thakurbari to be carried on.

13. It must therefore be held that in the circumstances of the case, the settlement of the land was for the benefit of the Thakurbari as it is inconceivable of what use the Thakurbari would be if it ceased to function.

14. In these circumstances the question arises whether the defendant is entitled to compensation for the building. The learned advocate for the appellant referred to Section 51, T.P. Act and contended that on the analogy with that Section, which does not apply to a lease but only to a transfer of a proprietary right he should be awarded the costs of the house.

15. Reference was also made to Mohammed Ali Khan Vs. Kanailal Haldar and Others, . The facts of that case were that a Hindu widow executed a lease for 99 years in order to secure for herself an annuity of Rs. 100 as rent. The result of the transaction was to deprive the reversioners of the property for a long period in lieu of the rent and possibly also for a further term of 99 years. It was held that the transaction was not binding on the reversioners but that in equity the lessee was entitled to be compensated for improvements effected on the land which were inseparable from the land.

16. The appropriate order to be passed in such a case has been indicated in Badal Chandra Sadhukhan Vs. Debendra Nath Dey, . The order we pass in this case there, fore is that the appeal is allowed to this extent that the decree of the District Judge is set aside and the case sent back to his Court so that the cost of erecting the house constructed by the defendant be ascertained and, after the cost has been ascertained, a decree for ejectment will be made in favour of the plaintiff conditional on his paying the amount so ascertained within the time to be fixed by the Court.

17. In the circum. stances there will be no order for costs in this appeal. The Court below will, of course, be alert to check any attempt on the part of the defendant to exaggerate the cost of the structure in question and will take into consideration the financial condition of the Thakurbari in fixing a time to be allowed to the plaintiff in which to find the amount of cost when it has been ascertained.

Yarma, J.

I agree.