Supreme Court: In an appeal against the judgment and order of Himachal Pradesh High Court, wherein the Court dismissed the review petition filed by the appellant, B.R. Gavai and C.T. Ravikumar*, JJ did not find any flaw, legal error, perversity or patent illegality in the findings on the substantial questions of law by the High Court in favour of the respondent, and in setting aside the judgment and decree of the first Appellate Court and in restoring the judgment and decree of the Trial Court.

In the case at hand, the respondent (original plaintiff) filed a suit for possession of land and for permanent prohibitory injunction restraining the appellant (original defendant) from interfering on disputed land and other land appurtenant to it, owned by her.

The suit was decreed upon holding the respondent as the owner of the encroached land. Thereafter, the first Appellate Court modified the judgment and decree holding that the respondent is not entitled to recover possession of the land after demolition of the structures put up thereon, based on the principles of acquiescence.

Further, the High Court allowed the second appeal and set aside the judgment and decree of the first Appellate Court for compensation to the respondent in lieu of recovery of possession, and the decree of the Trial Court for demolition and handing over of the possession of the encroached land was restored. The appellant filed the review petition in the said second appeal, which was dismissed by the High Court. Hence, he filed the present appeal.

The issues in this case were:

Whether the reversal by the High Court of the modification effected by the first Appellate Court warrants interference in exercise of power under Article 136 of the Constitution of India?

The appellant had raised a contention that he had effected the construction on the bona fide belief that he was effecting construction on his own land and therefore, the construction raised by him on the land in question is protected under Section 51 of the Transfer of Property Act, 1882 (‘TP Act’).

The Court viewed that that the contention of the appellants founded on Section 51 of the TP Act is totally misplaced and misconceived, as the underlying principles in Section 51, TP Act and the principle of estoppel under Section 115 of the Indian Evidence Act, 1872 are converse and cannot co-exist.

The Court, after examining Section 51, TP Act, said that to acquire the ‘right to require’ in the manner provided thereunder one should be a ‘transferee’ within the meaning of the TP Act and for the purpose of the said section. In short, Section 51 applies in terms of a transferee who makes improvements in good faith on a property believing himself to be its absolute owner. The appellant has failed to establish that he is a “transferee” within the meaning of the TP Act and for the purpose of Section 51, TP Act.

It said that to attract the Section 51, three things are required:

  • The occupant of the land must have held possession under colour of title.

  • His possession must not have been a mere possession of another, but adverse to the title of the true owner.

  • He must be under the bone fide belief that he has secured a good title to the property in question and is the owner thereof.

The Court said that the appellant has failed to establish the above-mentioned three things. Thus, it 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. Thus, the 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 Court held that the appellants are not entitled to rely on the provision under Section 51, TP Act to seek restoration of the modification made by the first Appellate Court with respect to demolition and possession. Further, 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.

Whether the appellant has pleaded and proved his plea of estoppel?

The appellants contended that non-framing of the question of estoppel as an issue is not fatal in the facts and circumstances as also in view of the evidence available on record, in the case on hand.

• Principle of Estoppel

The Court reiterated that to invoke the concept of estoppel the appellant/defendant must specifically plead each and every act or omission that constitutes representation from the respondent/plaintiff.

The Court took note of Pratima Chowdhury v. Kalpana Mukherjee, (2014) 4 SCC 196, wherein it was held that “the doctrine of estoppel would apply only when, based on a representation by the first party, the second party alters his position, in such manner, that it would be unfair to restore the initial position”, and on B.L. Sreedhar v. K.M. Munireddy, (2003) 2 SCC 355, wherein it was held that “when rights are invoked estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights.” The Court noted that in the said decision it was clarified that a legal status expressly denied by a statute could not be conferred based on estoppel.

• Principle of Acquiescence

The Court said that being the party propounding the application of the principle of acquiescence it was the burden of the 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.

The Court referred to Abdul Kader v. Upendra, 40 CWN 1370, wherein it was held that in the case of acquiescence the representations are to be inferred from silence, but mere silence, mere inaction could not be construed to be a representation and to be a representation, it must be inaction or silence in circumstances which require a duty to speak and therefore, amounting to fraud or deception

Pacing reliance on R.S. Maddanappa v. Chandramma, (1965) 3 SCR 283, the Court said that the appellant had encroached upon land belonging to the respondent and without bona fides effected constructions. The object of estoppel, as held in Madanappa’s case (supra), would be defeated if the said illegality is recognised and allowance is granted.

Further, it said that 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.

Taking note of Bodi Reddy v. Appu Goundan, 1970 SCC OnLine Mad 101, the Court said that in the absence of any misrepresentation by an act or omission, the mere fact that 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 of recovery of possession of the encroached land on his establishing his title over it.

Thus, the Court upheld the High Court’s Judgment and order.

[Baini Prasad v. Durga Devi, 2023 SCC OnLine SC 101, decided on 02-02-2023]

*Judgment by: Justice C.T. Ravikumar.

Know Thy Judge | Justice Chudalayil Thevan Ravikumar

*Apoorva Goel, Editorial Assistant has reported this brief.

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