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1. This appeal arises out of a suit for a declaration of the plaintiff's right to a pathway, and for a mandatory injunction for the removal of an over-bridge, which the defendants had constructed over the pathway, on the allegation that the pathway was a private pathway belonging to the plaintiff, and that the defendants had no right to construct the overbridge.

2. The defendants, among other things, denied the plaintiff's right, and also pleaded that the plaintiff was precluded, by reason of acquiescence in the construction of the overbridge, from having it demolished.

3. The Court of first instance declared the title of the plaintiff to the disputed pathway, but refused the mandatory injunction to demolish the overbridge, and gave the plaintiff a decree for Rs. 100 as damages.

4. On appeal by the plaintiff, the learned District Judge directed the removal of the overbridge.

5. The defendants have appealed to this Court.

6. The first contention raised is that a certain letter by which the defendants had asked for the permission of the plaintiff for the erection of the overbridge was no evidence of the title of the plaintiff, and that the question of title should have been decided upon other evidence.

7. There is no doubt, however, that the letter contained a clear admission of the plaintiff's title, and both the Courts below have found that the plaintiff's title was proved. The main contention, however, is that the Court below ought to have held that there was acquiescence on the part of the plaintiff and. that the Court, therefore, was not justified in directing the removal of the overbridge.

8. It appears that the defendants, on the 20fch November, 1918, wrote the letter referred to above, asking for permission to erect the overbridge. No orders appear to have been passed on this letter, and the defendants, without waiting for any order, built the overbridge. The plaintiff's local agents were residing very near the place and they did not raise any objection. It is accordingly contended that this amounted to acquiescence on the part of the plaintiff which precluded him from having a mandatory injunction. The cases of Noyna Misser v. Rupikin [1883] 9 Cal. 669 and Benode Coomaree Dossee v. Soudaminey Dossee [1889] 16 Cal. 252 have been relied upon on behalf of the appellants.

17. There may be cases where the acquiescence of the agent is binding on the principal. In the present case, however, the letter was admittedly written to the Raja himself and not to his local agents. The defendants constructed the overbridge without waiting for the plaintiff's permission, and, if they constructed it in the expectation that permission would be granted, they must be taken to have done so at their own risk.

18. Under these circumstances, I do not see how the mere fact that the plaintiff's local agents did not raise an objection to the construction of the overbridge could be held to be acquiescence on the part of the plaintiff. The permission, as stated above, was asked for not from them but from their master, the plaintiff himself : and there is nothing to show that the plaintiff was aware of the construction of the over-bridge or that his local agents had any authority to sanction the construction of the overbridge. As to the fact of one of the agents having passed over the over-bridge when invited to the defendant's house, that must have been after its construction as he could not have passed over it unless the construction was completed or nearly so. There was some criminal proceeding in connection with the overbridge and it does not appear that there was much delay in instituting it and shortly after this suit wad instituted.