the construction was made in the site of the plaintiffs and that exhibit B1, the copy of the gift deed being relied upon by the defendant, on a perusal, would show that the property gifted is a vacant site in front of a house and that as rightly held by the court of appeal the description of the property in the said gift deed does not correspond to the property in dispute. The Court below had recorded a factual finding that the house constructed with mud is a temporary construction and that no door number was also given to the said temporary construction and that there is no evidence on record to prove that such construction was made twelve years prior to the filing of the suit and had therefore, recorded a further finding that the plea of adverse possession is not established. It is also apt to note that no issue was framed by the trial Court on this material proposition of fact/law concerning acquiescence as no such plea was obviously raised before the trial court and the only pleas raised are claim by way of a gift and adverse possession. However, both the said contentions were negatived. No point for determination was also framed on this distinct aspect by the court of first appeal for the same reasons. Therefore, it is not open to the 2nd defendant to raise a new issue in the second appeal. Further, the plea of acquiescence is an equitable principle and the party relying upon equitable principles cannot approbate and reprobate and must be with clean hands as the law is well settled that he who seeks equity must do equity. Even otherwise, this Court had examined the issue of acquiescence, in detail. On such examination, this Court finds that the 2nd defendant/appellant has no case on the said issue, for the reasons already assigned, supra.
