Pratt, J

[1] The plaintiffs in this suit granted to the defendant a lease of a part of a bungalow and compound in the Nesbit Road, Mazgaon, for the period of one year from April 1, 1918. The lease terminated by efflux of time on March 31, 1919. But the defendant held over. There had been a dispute as to alleged encroachments by the defendant and the plaintiffs now aver that they require the premises included in the original lease as well as those encroached upon for their own use and occupation, and gave notice on December 30, 1922, terminating the tenancy as from February 1, 1923.

[2] It is admitted that the defendant required the premises to the knowledge of the plaintiffs for manufacturing purposes and that he has so used them. The defendant accordingly pleads that he is entitled to six months notice Under Section 105 of the Transfer of Property Act, and that the notice given on the supposition that the tenancy was monthly is ineffectual to terminate the lease. An against this plaintiffs contend that the defendant is estopped from setting up an yearly tenancy by his letter in reply to the notice to quit. That letter is Exh. G dated January 16, 1923, of which the concluding paragraph is as follows:

Your clients lease wish their superior landlord has expired long since and their possession is also that of a monthly tenant.

[3] I have no doubt the word "also" means that you are like me a monthly tenant. This is an admission by the defendant that he is a monthly tenant but he would be entitled to show that this admission is wrong unless it operates as an estoppel. But I feel dear that there is no estoppel and for the following reasons:

In the first place the facts affecting the tenancy were within the knowledge of both the parties, and when that is so, there is no scope for the doctrine of estoppel: Honapa v. Narsapa (1898) I.L.R. 23 Bom. 406, 408.

[4] Again, the plaintiffs, before receipt of the letter, believed the defendant to be a monthly tenant, so that, the belief was not induced by the letter of January 16, 1923. But, I think, it mutt be conceded that the language of Section 115 of the Indian Evidence Act extends to the encouragement of an erroneous belief as in Ramaden v. Dyson (1866) L.R. 1 H.L. 129. But even so can it be said that plaintiffs have acted on such belief in consequence of the letter I think not. The phrase "act upon such belief " means that the plaintiffs must have altered their position with reference to the subject-matter of the representation. What have the plaintiffs done but the filing of the suit Mere filing the suit does not alter their position, It is only a process of enforcement of the position taken up before the misrepresentation.

[5] Again, even if the filing does fulfill the words of the section-"acts upon such belief"-is it certain that the plaintiffs would not have filed the suit if the letter had not been written As to this the remarks of Jenkins C.J. in Narsingdas v. Rahimanbai (1904) I.L.R. 28 Bom. 440, s.c. 6 Bom. L.R. 440 are very pertinent (p. 446):

The law of estoppel is defined by Section 115 of the Evidence Act, and all the Judge is able to say is time it may well be doubted whether the plaintiff would have acted in the way he did but for the way in which the defendants had acted. That is not sufficient, It must be found as a fact that the plaintiff would not have acted as be did.

[6] So here I have no doubt that the plaintiffs would have filed this suit even if the defendant had made no reply to the notice to quit.

[7] I accordingly find on the issue, namely : Whether the defendant is estopped by his letter of January 16, 1923, from asserting that he is an yearly tenant -in the negative.