{"id":284396,"date":"2023-02-18T11:30:28","date_gmt":"2023-02-18T06:00:28","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=284396"},"modified":"2023-02-18T10:51:45","modified_gmt":"2023-02-18T05:21:45","slug":"section-51-tp-act-applies-on-transferee-who-makes-improvements-in-good-faith-on-a-property-believing-himself-to-be-its-absolute-owner-supreme-court-legal-research-legal-news-upd","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/02\/18\/section-51-tp-act-applies-on-transferee-who-makes-improvements-in-good-faith-on-a-property-believing-himself-to-be-its-absolute-owner-supreme-court-legal-research-legal-news-upd\/","title":{"rendered":"Section 51 of the Transfer of Property Act applies on transferee who makes improvements in good faith on a property, believing himself to be its absolute owner: Supreme Court"},"content":{"rendered":"
\n

Supreme Court:<\/b> 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*<\/b>, 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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

The issues in this case were:<\/p>\n

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<\/a> of the Constitution of India<\/a>?<\/b><\/p>\n

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<\/a> of the Transfer of Property Act, 1882<\/a> (‘TP Act’).<\/p>\n

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

The Court, after examining Section 51<\/a>, TP Act<\/a>, 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<\/a>, TP Act<\/a>.<\/p>\n

It said that to attract the Section 51, three things are required:<\/p>\n