Baini Prasad (D) Thr. Lrs. vs Durga Devi

Civil Appeal No.6182-6183 of 2009

Baini Prasad (D) Thr. LRs. …Appellants Versus Durga Devi …Respondents

JUDGMENT

C.T. RAVIKUMAR, J.

1. The respondent in R.S.A. No.276 of 1996 who was

the defendant in Civil Suit No. 70 of 1988 on the file of

Subordinate Judge’s Court, Kullu in Himachal Pradesh, is

the original appellant in these appeals by special leave.

Subsequent to his death the legal heirs got themselves Signature Not Verified Digitally signed by Ashwani Kumar Date: 2023.02.02 17:20:37 IST Reason:

impleaded as appellants 1(a) to 1(g). The former appeal is

Page 1 of 26 directed against the judgment and final order in R.S.A.

No.276 of 1996 dated 27.12.2007 and the later appeal is

directed against the order dated 27.03.2008 in Civil

Review Petition No.4 of 2008, in the said Second Appeal,

passed by the High Court of Himachal Pradesh at Shimla.

The respondent herein (plaintiff) filed Civil Suit No.70 of

1988 for possession of land measuring 11 Biswancies

comprised in Khasra No. 994/1-A/1 as per Talima by

demolition of the structure put up thereon in Phati

Dhalpur, Kothi Maharaja, Tehsil and District Kullu and for

permanent prohibitory injunction restraining the

defendant (the appellant herein) from interfering on

disputed land and other land appurtenant to it, owned by

her. The suit was decreed and upon holding the

respondent herein/plaintiff as the owner of the

encroached land handing over the same after demolition

of the structures put up there was ordered. The original

appellant/defendant took up the matter in appeal. As per

the judgment in Civil Appeal No.9 of 1992, the findings on

ownership and the question of encroachment were

confirmed. Nonetheless, the First Appellate Court

Page 2 of 26 modified the judgment and decree holding that the

plaintiff/respondent herein is not entitled to recovery

possession of 11 Biswancies of land after demolition of

the structures put up thereon based on the principles of

acquiescence. Consequently, she was found entitled to a

decree of compensation at the market value prevalent at

the time of filing of the suit in lieu of that relief and the

compensation therefor was assessed at Rs.5500/-. Over

and above the said amount, the respondent herein (the

plaintiff) was held entitled to recover interest at the rate

of 12 % per annum from the date of filing of the suit till

realization. RSA No.276 of 1996 was filed challenging

the modification of the judgment and decree of the Trial

Court to above extent by the respondent herein. As per

the impugned judgment dated 27.12.2007, 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 judgment and decree of the Trial Court dated

18.01.1992 for demolition and handing over of the

possession of the encroached land was restored. The

Page 3 of 26 review petition being; Civil Review Petition No.4 of 2008

filed by the appellant herein in the said Second Appeal

was dismissed by the High Court as per order dated

27.03.2008. Hence, these appeals.

2. Heard, Ms. Kiran Suri, learned Senior Counsel for the

appellants and Mr. Rajesh Srivastava, learned counsel for

the respondent.

3. The succinct narration of facts as above would make

it abundantly clear that there are concurrent findings of

the Trial Court, the First Appellate Court as also the High

Court on the questions of ownership over the land in

question viz., land measuring 11 Biswancies, as described

above and its encroachment by the original appellant. In

the said circumstances, we find absolutely no reason to

revisit the factual findings on the questions of ownership

and encroachment based on the settled judicial principle

well-established by precedents that concurrent finding of

fact does not call for interference in an appeal under

Article 136 of the Constitution of India in the absence of

any valid ground for interference. (See the decisions in

Janak Dulari Devi and Anr. v. Kapildeo Rai and Anr. 1, 1 (2011) 6 SCC 555

Page 4 of 26 Ram Prakash Sharma v. Babulal2 and Ghisalal v.

Dhapubai3).

4. RSA No.276 of 1996 was filed by the respondent

herein/plaintiff, rightly, against the setting aside of the

judgment and decree of the trial Court for demolition and

handing over the possession of land measuring 11

Biswancies in Khasra No.994/1-A/1 and holding and

decreeing that in lieu of the same she is entitled to a

decree of compensation at the market value prevalent at

the time of filing of the suit and interest at the rate of 12

% per annum on the assessed amount of Rs.5500/- from

the date of filing of the suit till its realization. In this

context, it is pertinent to note that as against the

judgment of the First Appellate Court confirming the

findings on ownership and encroachment against him and

further ordering payment of compensation after rejecting

his denial of encroachment, the original appellant had

neither filed an independent appeal nor a cross appeal.

5. In short, for the foregoing reasons, the scope of

consideration in these appeals is to be confined to the

2 (2011) 6 SCC 449 3 (2011) 2 SCC 298

Page 5 of 26 question 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.

6. According to the appellants, the respondent herein

did not object and resort to civil remedy against the

construction effected on the land in dispute within a

reasonable time and, therefore, she is estopped from

claiming recovery of the land in question after demolition

of the structure raised thereon. True, that the original

appellant had also 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 (hereinafter, ‘the TP Act’). This was pressed into

service by the appellants.

7. At the very outset we may say that we are of the

considered view that the contention of the appellants

founded on Section 51 of the TP Act is totally misplaced

and misconceived. This position would be revealed if

Page 6 of 26 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 Indian Evidence Act, 1872 are converse and cannot

co-exist. Section 51 of the TP Act reads thus: -

“51. Improvements made by bona fide holders under defective titles.—When the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted there from by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted

Page 7 of 26 or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.”

8. A perusal of Section 51, TP Act would reveal that

even after the pre-requisites for the enforceability of

equity enacted in it are satisfied, the right to election for

one of the two alternatives provided under that Section

would still rest with the person evicting. In other words,

he may elect either to pay the value of improvements

made by the defendant who satisfies a description of

“transferee” for the purpose of this Section and take the

land or sell out his interests in the land to the transferee

at the market value of the property, irrespective of the

value of such improvements.

9. Section 51, TP Act is a general provision dealing with

improvements effected by a transferee to the transferred

property in the manner specifically provided thereunder.

Thus, a bare perusal of Section 51, TP Act would reveal

that in order 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

Page 8 of 26 the said section. In short, Section 51 applies in terms to a

transferee who makes improvements in good faith on a

property believing himself to be its absolute owner. In

this context, the seemingly, paradoxical statements in

grounds ‘b’ and ‘d’ raised in the appeals are worthy to

refer and they read thus:-

Grounds ‘b’ and ‘d’ in the appeals read as under:-

‘b’. "That the Hon’ble High Court has committed a serious error in holding that estoppel, waiver is averments in written statement specifically state all the facts leading to estoppel. The petitioner has specifically pleaded in his written statement as under: -

“The defendant constructed the house on the land along with land in dispute with verandah and completed it in the month of September, 1986. At the time, neither the plaintiff nor her husband who was living at Raghunathpur adjoining the land of the defendant raised any objection."

That plea of estoppel is clearly made out from the pleadings of the parties, their conduct, oral as well as documentary evidence. The said plea has been raised to put to trial and therefore, the plea of estoppel being the issue of law cannot be raised at any time.

‘d’. That the petitioner was under bona fide belief that he has constructed on its own land and the

Page 9 of 26 construction raised by the petitioner is protected by virtue of Section 51 of TP Act. The petitioner has acted under the bona fide defective title and therefore has been fighting the litigation since last 20 years on the belief that he has constructed on his own land but ultimately after holding several demarcations, one of the witnesses found the trespass to an extent of 9 biswasies whereas the other found it 11 biswasies. However, admittedly the area involved is very small and the encroachment is not intentional and therefore, Section 51 of TP Act will apply to the facts and circumstances of the case.”

10. The original 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. 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. In short, 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 herein

is the owner of the land in question and the original

Page 10 of 26 appellants had encroached upon it and effected

construction. The appellants herein 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.

11. In the light of the concurrent findings on the

questions of ownership and encroachment, as noted

above, 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, we

have no hesitation to hold that 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

Page 11 of 26 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.

12. Now, what remains to be considered is whether the

appellant herein/defendant has pleaded and proved his

plea of estoppel. The appellants would contend 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. To

buttress the contention, the appellants rely on the

decision of this Court in Nedunuri Kameswaramma v.

Sampati Subba Rao4. The relevant recital in the

paragraph 5 of the said decision reads thus:-

“5. …No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this 4 AIR 1963 SC 884

Page 12 of 26 narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion.”

The position of law revealed from the afore-extracted

recital from the said decision cannot be disputed. In fact,

for the very same reason despite the non-framing of the

issue of estoppel we are inclined to consider the

contentions founded on the principle of estoppel. We may

hasten to add that indubitably the position is that 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. Before delving into the said question it is only

appropriate to refer to the enunciation of the settled

position in respect of the concept of estoppel.

12.1 In the decision in R.S. Madanappa v.

Chandramma5, this court considered the object of

estoppel. It was held that its object is to prevent fraud

and secure justice between the parties by promotion of

honesty and good faith. It was therefore, further held that

when one party makes a representation to the other

5 AIR 1965 SC 1812

Page 13 of 26 about a fact he would not be shut out by the rule of

estoppel if that other person knew the true state of facts

and must consequently not have been misled by the

misrepresentation.

12.2 In the decision in Pratima Chowdhury v. Kalpana

Mukherjee6, while considering Section 115 of the

Evidence Act, this Court held that four salient conditions

are to be satisfied before invoking the rule of estoppel.

Firstly, one party should make a factual representation to

the other party. Secondly, the other party should accept

and rely upon the aforesaid factual representation.

Thirdly, having relied on the aforesaid factual

representation, the second party should alter his position.

Fourthly, the instant altering a position, should be such,

that it would be iniquitous to require him to revert back to

the original position. After holding so, it was further 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.

6 AIR 2014 SC 1304

Page 14 of 26 12.3 In the decision in B.L. Shreedhar v. K.M.

Munnireddy7, this Court 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 appellant relies on this

decision, more particularly paragraph 30 of the said

decision and it reads thus :-

“30. If a man either by words or by conduct has intimated that he consents to an act which has been done and that he will not offer any opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that which they otherwise might have abstained from, he cannot question the legality of the act he had sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.”

It is to be noted that in the said decision this Court

clarified that a legal status expressly denied by a statute

could not be conferred on the basis of estoppel.

13. The appellant has also relied on the decision of this

Court in Chairman, State Bank of India & Anr. v. M.J.

7 AIR 2003 SC 578

Page 15 of 26 James8, more particularly, paragraph 39 which read

thus:-

“39. Before proceeding further, it is important to clarify distinction between “acquiescence” and “delay and laches”. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. However, acquiescence will not apply if lapse of time is of no importance or consequence.”

The position expounded as above certainly request

consideration with reference to the facts of this case. In

that regard we will have to consider whether there was

acquiescence on part of the respondent and if so, whether

8 (2022) 2 SCC 301

Page 16 of 26 lapse of time, if any, is of no importance or consequence,

with reference to the factual position, in view of the

exposition thereunder ‘that acquiescence would not apply

if lapse of time is of no importance or consequence’.

14. What is crystal clear from the enunciation of law in

catena of cases is that 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.

15. Besides, bearing in mind, the enunciation of law on

the principle of estoppel we will have to take note of

certain crucial aspects borne out of the records in the

case. The case of the original appellant is that he had

carried out the construction of the varandah in the land in

dispute as part of his residential house in the year 1986

bona fidely believing it to be his own land before the

acquirement of land in question by the respondent. This

contention is incoherent with that of acquiescence viz.,

the contention claims to be embedded in ground ‘b’ that

the respondent remained silent and thereby, made a

representation persuading him to alter his position and to

go ahead with the construction in the land in question.

Page 17 of 26 Actually, the original appellant took up the contention

thereunder that neither the plaintiff (respondent herein)

nor her husband who were living at Raghunathpur

adjoining his land raised any objection during the

construction. Obviously, this contention was taken up

jesuitically as what is stated in the preceding sentence is

that he constructed house on the land along with land in

dispute with verandah and completed it in the month of

September, 1986; whereas, admittedly, the respondent

herein purchased the land only in the year 1987. But the

evidence on record, dealt with by the Courts below, would

reveal that the respondent herein had objected to the

carrying out of the construction by the original appellant

in the land in question. It is evident from the record that

the respondent sent telegraphic notice Ex. PW-18/A dated

22.09.1987 to the original appellant for stopping

construction thereon. It is also on record that she made a

complaint before the Deputy Commissioner through her

husband under Ex. PW-12/A on 10.12.1987 which

ultimately resulted in a report pursuant to an inspection

by PW-12, the then Tehsildar, Kullu of the suit land on

Page 18 of 26 12.01.1988. The suit was instituted thereafter on

11.05.1988.

16. Contextually, it is relevant to note that 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 herein 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.

17. We are of the considered view that 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

Page 19 of 26 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. As noticed hereinbefore, the

Page 20 of 26 respondent herein 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.

18. In the situation and circumstances expatiated above

it is only apposite to refer to the decision in Abdul Kader

v. Upendra9. It was held therein 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 in order 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. 9 40 C.W.N 1370 Page 21 of 26

19. There can be no doubt with respect to the position

that estoppel is a principle founded on equity and as held

by the court in Madanappa’s case (supra) 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

herein 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 herein 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.

20. 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, as held in Madanappa’s case, would

Page 22 of 26 be defeated if the said illegality is recognized and

allowance is granted therefor. In the contextual situation,

a decision of a learned Single Judge of High Court of

Andhra Pradesh in N.C. Subbayya v. Pattan Abdulla

Khan10 extracted in agreement in the decision by the

learned Single Judge of High Court of Madras in the

decision in Bodi Reddy v. Appu Goundan11, is worthy to

be looked into. In the decision the learned Single Judge of

the High Court of Andhra Pradesh after posing a question

“has the court an absolute discretion to award damages

instead of a mandatory injunction where there is a

trespass by the defendant on the plaintiff’s land?” held

thus:-

“To say the building erected in such circumstances should not be directed to be removed and only damages could be awarded would, in my opinion, be ineffective, to sanction a condemnation of the plaintiff’s property and an appropriation of it for the defendant’s use…. To confine the relief to compensation in such a case is tantamount to allowing a trespasser to purchase another man’s property against that man’s will. No man should be compelled to sell his property against his will at a valuation and no person should be encouraged to do

10 (1956) 69 LW (Andhra) 52 11 (1971) ILR 2 Madras 155

Page 23 of 26 a wrongful act or commit a trespass relying on the length of his purse and his ability to pay damages for it.

To say that a small strip of building site could thus be appropriated by a trespasser would be to admit a rule of law which can be applied limitlessly. In cases of trespass, the Court should ordinarily grant an injunction directing the defendant to remove the encroachment and restore possession of the vacant site to the plaintiff. Neither serious inconvenience to the defendant—trespasser nor the absence of serious injury to the plaintiff is a ground for depriving the latter for his legal right to the property.”

21. True that the learned Single Judge further held that if

the plaintiff is guilty of laches amounting to acquiescence

or has knowingly permitted the defendant to make the

construction and made him to incur heavy expenditure

without protest or objection, mandatory injunction could

be declined and damages could be given. As held by the

learned Single Judge we are of the considered view 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

Page 24 of 26 recovery of possession would tantamount to allowing a

trespasser/encroacher to purchase another man’s

property against that man’s will. In Bodi Reddy’s

decision (supra) the learned Judge held that in a suit for

recovery of possession filed within the period of limitation

provided under Limitation Act, the doctrine of laches or

acquiescence has no place to defeat the right of the

plaintiff to obtain the relief on his establishing his title. We

may hold that 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.

22. Considering all the aforesaid circumstances, we do

not find any flaw, legal error, perversity or patent

illegality in the findings on the substantial questions of

law by the High Court ultimately, in favour of the

respondent herein and in setting aside the judgment and

Page 25 of 26 decree of the First Appellate Court and also in restoring

the judgment and decree of the Trial Court.

23. Resultantly the appellants are bound to fail and the

appeals are accordingly dismissed.

24. There is no order as to cost.

……………………, J.

(B.R. Gavai)

……………………, J.

(C.T. Ravikumar) New Delhi;

February 02, 2023.

Page 26 of 26