Transfer of Property Act, 1882 : s. 51 – Protection under – Suit by the respondent for possession of the land by demolition of the structure put on by the appellant and for permanent prohibitory injunction restraining the appellant from interfering with the said land – Appellant’s case that two years ago he had carried out construction of the verandah in the land as part of his residential house bonfidely believing it to be his own land – Suit decreed in favour of the respondent – However, the first appellate court held that the respondent not entitled to the possession of the land after demolition of the structure put up based on the principles of acquiescence, however, entitled to compensation – High Court set aside the order of the first appellate court and restored that of the trial court – Review application there against also dismissed – On appeal, held: Appellant cannot be treated as a ‘transferee’ within the meaning and for the purpose of s. 51 – To attract s. 51, the occupant of the land must have held possession under the colour of title, and his possession must have been adverse to the title of the true owner – Concurrent findings of the courts below that the respondent is the owner of the land in question and the original appellants had encroached upon it and ignoring the absence of any title made structures thereon at his own risk – Thus, the appellants not entitled to rely on the provision u/s. 51 to seek for restoration of the modification made by the first appellate court with respect to demolition and possession – Being the party propounding the application of the principle of acquiescence it was the burden of the original appellant to establish the fact that the respondent had acquiesced in the infringement of his legal right and still stood by and allowed the construction – Furthermore, in the absence of any misrepresentation by an act or omission, the mere fact that the respondent took some reasonable time to approach the court for recovery of possession cannot, be a reason to deny him the relief – No flaw, legal error, perversity or patent illegality found in the findings – Thus, the judgment of the first appellate court set aside and that of the trial court restored – Principle of acquiescence and estoppel – Evidence Act, 1872 – s. 115.
Dismissing the appeals, the Court
HELD: 1.1 The contention of the appellants founded on Section 51 of the Transfer of Property Act, 1882 is totally misplaced and misconceived. This position would be revealed if ground ‘b’ raised in these appeals is juxtaposed to ground ‘d’. Noticeably, the appellants assail the reversal of the modification of the judgment and decree passed by the First Appellate Court and attempting to sustain the modification based on contentions founded on the principle of estoppel and relying upon Section 51 of the TP Act. Conceptually, the underlying principles in Section 51, TP Act and the principle of estoppel under Section 115 of the Evidence Act, 1872 are converse and cannot co-exist. [Para 7][290-C-D]
1.2 The original appellant failed to establish that he is a “transferee” within the meaning of the TP Act and for the purpose of Section 51, TP Act. In order to attract the Section the occupant of the land must have held possession under colour of title, his possession must not have been by mere possession of another but adverse to the title of the true owner and he must be under the bone fide belief that he has secured good title to the property in question and is the owner thereof. Section 51 gives only statutory recognition to the above three things. At the same time, in the case on hand, the concurrent findings of the courts below is that the respondent is the owner of the land in question and the original appellants had encroached upon it and effected construction. The appellants have failed to establish the above mentioned three things. The evidence on record would also go to show that even the construction was effected in deviation of the approved plan. [Para 10][292-C-E]
1.3 In the light of the concurrent findings on the questions of ownership and encroachment, it can only be held that it was after encroaching upon the land in question and ignoring the absence of any title that he made structures thereon at his own risk. Once it is so found, the original appellant cannot be treated as a ‘transferee’ within the meaning of the TP Act and for the purpose of Section 51, TP Act. Therefore, the appellants are not entitled to rely on the provision under Section 51, TP Act to seek for restoration of the modification made by the First Appellate Court with respect to demolition and possession. The appellants, rightly, did not take up the plea of adverse possession and in the circumstances, being not a transferee for the purpose of Section
51 TP Act, he cannot legally require the respondent either to pay the value of improvements and take back the land or to sell out the land to him at the market value of the property, irrespective of the value of the improvements. [Para 11][292-F-H; 293-A]
1.4 To invoke the concept of estoppel the defendant has to specifically plead each and every act or omission, as the case may be, that constitutes representation from the plaintiff. [Para 12][293-F]
1.5 The equity will follow the law and it would tilt in favour of law and further that to claim equity the party must explain previous conduct. [Para 14][295-G]
1.6 The trial court took note of the factual position that despite raising the specific contention that he had affected the construction of his residential house along with varandah in the year 1986, the appellant had not produced the completion certificate of building including the construction on the land in question from the local body to establish the asserted fact. [Para 16][296-F-G]
1.7 When the First Appellate Court also took note of the issuance of Ext. PW- 18/A dated 22.09.1987 and also the submission of Ext. PW-12/A dated 10.12.1987 it should have taken into account the following facts which are explicit from the records and duly considered by the trial court. Firstly, being the party propounding the application of the principle of acquiescence it was the burden of the original appellant to establish the fact that the respondent herein had acquiesced in the infringement of his legal right and still stood by and allowed the construction. In that regard, it should have taken into account the fact that despite asserting that the construction on the land in question was carried out while carrying out the construction of the residential building on his own land in the year 1986 as per the approved plan he had failed to establish the same by producing the completion certificate from the local authority. Secondly, if that contention is taken as true, he could not have taken up the contention of acquiescence on the respondent as it was also his case that the respondent had purchased the land in question only in the year 1987. Thirdly, the oral evidence and the documentary evidence on behalf of the respondent would reveal the factum of raising objection on “carrying out the construction, in the absence of any title over the same, at least a defective title, the original appellant could not have claimed bona fides on his action in carrying on the construction. In the said circumstances, the mere delay in instituting the suit, especially when it was filed well within the period of limitation prescribed, should not have been held as amounting to acquiescence. The respondent after sending telegraphic message on 22.09.1987 approached the Deputy Commissioner and ultimately obtained report revealing encroachment on the part of the original appellant on 10.12.1987 and then, brought the suit on 11.05.1988. How can it be said, in the circumstances, that the respondent has not immediately taken proceedings against the original appellant and therefore, she should ever be debarred from asserting her right for recovery of possession of her land from the encroacher even after establishing her title over the encroached land in a suit instituted well within the prescribed period of limitation. [Para 17][296-GH; 297-A-F]
1.8 Estoppel is a principle founded on equity and its object is only to prevent and secure justice between the parties. In the proven circumstances that the original appellant was not having title over the property, that the respondent is the owner of the land in question, that the concurrent finding is that the original appellant was the encroacher and further that objection was raised by the respondent against the construction she should not have shut out by the rule of acquiescence or by the rule of estoppel for having made a representation to make the original appellant to believe that she had consented for the construction. [Para 19][298-A-C]
1.9 The entire circumstances revealed from the evidence on record unerringly point to the fact that the appellant had encroached upon land belonging to the respondent and without bona fides effected constructions which is verandah which is extension of residential building. The object of estoppel, would be defeated if the said illegality is recognized and allowance is granted therefor. [Para 20][298-C-D]
1.10 In a case where the owner of the land filed suit for recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man’s property against that man’s will. In such a situation in the absence of any misrepresentation by an act or omission, the mere fact after making objection the plaintiff took some reasonable time to approach the Court for recovery of possession cannot, at any stretch of imagination, be a reason to deny him the relief him of recovery of possession of the encroached land on his establishing his title over it. [Para 21][299D-E, F-G]
1.11 No flaw, legal error, perversity or patent illegality is found in the findings on the substantial questions of law by the High Court ultimately, in favour of the respondent and in setting aside the judgment and decree of the first appellate court and also in restoring the judgment and decree of the trial court. [Para 22][299-H; 300-A]
Janak Dulari Devi and Anr. v. Kapildeo Rai and Anr. (2011) 6 SCC 555 : [2011] 6 SCR 96; Ram Prakash Sharma v. Babulal (2011) 6 SCC 449 : [2011] 6 SCR 757; Ghisalal v. Dhapubai (2011) 2 SCC 298 : [2011]
1 SCR 651; Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884 : [1963] SCR 208; R.S.
Madanappa v. Chandramma AIR 1965 SC 1812 :
[1965] SCR 283; Pratima Chowdhury v. Kalpana
Mukherjee AIR 2014 SC 1304 : [2014] 2 SCR 656; B.L. Shreedhar v. K.M. Munnireddy AIR 2003 SC 578 : [2002] 4 Suppl. SCR 601; Chairman, State Bank of India & Anr. v. M.J. James (2022) 2 SCC 301; Abdul Kader v. Upendra 40 C.W.N 1370; N.C. Subbayya v. Pattan Abdulla Khan (1956) 69 LW (Andhra) 52; Bodi Reddy v. Appu Goundan (1971) ILR 2 Madras 155 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.