JUDGMENT
1. In special appeal it has not been objected that the circumstances from which the appellant's knowledge is inferred were insufficient to warrant that inference, and, therefore, we need not consider this point; the case has been argued on the hypothesis that the erection of the building commenced with the appellant's knowledge a year or two before the institution of this suit. The pleas recorded in the memorandum of special appeal are inaccurately drawn, but the contention of the appellant at the hearing' was that her consent ought not to he inferred merely from her inaction, and that, inasmuch as she has brought her claim into Court within the term allowed by law for the institution of such claims, she is entitled to a decree. The rulings of the Sudder Court as to the effect of delay in the assertion of a right have been considerably modified or explained by more recent decisions of this Court, which have, however, we believe, escaped the observation of the reporter. We propose, therefore, in disposing of this case, to examine at somewhat greater length than we should have otherwise thought it necessary to do the principle on which the rule of estoppel in pain appears to rest, and the circumstances to which it should he applied. This rule has been stated generally in the following terms:-- If a man by words or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induced others to do that from which they might otherwise have abstained, he cannot question the legality of the act he had so sanctioned to the prejudice of those who have so given credit to his words, or to the fair inference to be drawn from his conduct." And again:--"If a party has an interest to prevent an act being done and acquiesces 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 it been done by his previous license."--Cairncross v. Lorimer 3 Macq. H.L. Cas. 829 : 7 Jur. N.S. 149.
2. Mr. Justice Story points out the principle on which the rule rests, and it is most important that the principle should be borne in mind in applying the rule:
This doctrine of estoppels in pais, or equitable estoppels, is based upon a fraudulent purpose, and a fraudulent result. If, therefore, the element of fraud is wanting, there is no estoppel. As if both parties were equally cognisant of the facts, and the declaration, or silence, of the one party produced no change in the conduct of the other, he acting solely on his own judgment. There must be deception, and change of conduct in consequence, to estop the party from showing the truth."--(Story's Equity Jurisprudence, vol. ii, Section 1543). Of course, by fraud the author must be understood to mean whatever amounts in law to fraud.
3. In Ramsden v. Dyson L.R. I.H.L. 129; 21 Jur. N.S. 506 : 14 W.R. 926 Lord Chancellor Cranworth and Lord Wensleydale declared that if a stranger builds on the land of another supposing it to be his own, and the owner does not interfere, but leaves him to go on, equity considers it dishonest in the owner to remain passive and afterwards to interfere and take the profit. But if a stranger builds on the land of another knowingly, there is no principle of equity which prevents the owner from insisting on having back his land, with all the additional value which the occupier has imprudently added to it; and Lord Wensleydale added that, if a tenant does the same thing, he cannot insist on refusing to give up the estate at the end of his term. It was his own folly to build.
4. These dicta of the highest authority illustrate the application of the general rule. There must be something more than a mere delay in instituting proceedings to deprive a man of his legal remedies. We are not, indeed, prepared to adopt without qualification an opinion thrown out by the High Court of Madras, "that the equitable doctrine of laches and acquiescence is not applicable to suits in the Mofussil for which a period of limitation is provided by the Limitation Act"--Rama Rau v. Raja Rau 2 Mad. H.C.R., at p. 116.
5. The rule as expounded by the authorities we have quoted is obviously founded on a highly equitable principle, and we see no reason why on fitting occasions it should not be applied in this country. No doubt, a distinction must be made between those cases in which a suitor seeks some relief which, if he proves his case, the Court is bound to grant him, and the cases in which he seeks relief which the Court has discretion to grant or refuse. When a suitor has & right to demand relief, no doubt a stronger case must be made out against him than such mere tardiness in seeking a remedy which might justify a Court in refusing relief when it has a discretion to grant or refuse it. With this qualification we assent to the dictum of the Madras High Court in a case decided subsequently to Rama Rau v. Raja Rau 2 Mad. H.C.R., 114, to the effect that "on the whole, it may be taken as the law both of Courts of law and equity that mere laches, short of the period prescribed by the statute of limitation, is no bar whatever to the enforcement of a right absolutely vested in the plaintiffs at the period of suit"--Peddamuthulaty v. N. Timma Reddy 2 Mad. H.C.R. at p. 273; but where there is more than mere laches, where there is conduct or language inducing a reasonable belief that a right is foregone, the party who acts upon the belief so induced, and whose position is altered by this belief, is entitled in this country, as in other countries, to plead acquiescence, and the plea if sufficiently proved ought to be held a good answer to an action, although the plaintiff may have brought suit within the period prescribed by the law of limitation. In the case before us it has been found that the appellant, knowing that the respondent was building on her lands abstained from commencing proceedings for one or two years. The respondents have set up a title to the land which has been held to be manifestly false. They must have known they had no claim to it, and they could hardly have doubted it belonged to the zamindar. Had they thought it probable the zamindar would consent to their usurpation, they might have assured themselves on the point by applying to her before they expended a rupee on the land. Under the circumstances, we cannot hold that the delay in the institution of the suit is sufficient to deprive the appellant of her right to relief.
6. The appeal is decreed with costs, and so much of the decrees of the Courts below as dismissed the claim to the plot in question in this appeal are reversed, and the claim is decreed.