Transfer Of Property Act - Encroacher Cannot Claim Benefit Of Section 51 : Supreme Court

The Supreme Court observed that an encroacher cannot be termed as a 'transferee' to seek benefit of Section 51 of the Transfer of Property Act.

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, the bench of Justices B R Gavai and C T Ravikumar said.

The plaintiff filed suit for possession of land by demolition of the structure put up thereon and for permanent prohibitory injunction restraining the defendant from interfering on disputed land and other land appurtenant to it, owned by her. The suit was decreed holding the plaintiff as the owner of the encroached land. The defendant took up the matter in appeal. The first appellate court confirmed the findings on ownership and the question of encroachment were confirmed. It modified the judgment and decree holding that the plaintiff is not entitled to recovery possession 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/-.  The Plaintiff filed second appeal challenging this modification of the judgment and decree of the Trial Court. The High Court allowed the Second Appeal and set aside the judgment and decree of the First Appellate Court  and restored the Trial Court decree and jugment. Thus, the defendant approached the Apex Court.

Before the Apex Court bench, the appellant- defendant raised these two contentions (1) The defendant 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. (2) Plaintiff 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.

Regarding the first contention, the bench observed:

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 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.

While dismissing the appeal, the bench also rejected the second contention and observed as follows:

"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 recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man’s property against that man’s will."

Case details

Baini Prasad (D) vs Durga Devi | 2023 LiveLaw (SC) 78 | CA 6182-6183 of 2009 | 2 Feb 2023 | Justices C T Ravikumar 

For Appellant(s) Mr. S.J. Amith, Adv. Ms. Vidushi Garg, Adv. Mr. Aniruddha Purushotham, Adv. Dr. (Mrs. ) Vipin Gupta, AOR; For Respondent(s) Mr. Rajesh Srivastava, AOR Mr. Gaurav Verma, Adv

Headnotes

Transfer of Property Act, 1882 ; Section 51 - t, 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 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 I it was after encroaching upon the land in question and ignoring the absence of any title that the defendant made structures thereon at his own risk -Once it is so found, the defendant cannot be treated as a ‘transferee’ within the meaning of the TP Act and for the purpose of Section 51, TP Act. (Para 7-11)

Civil Suit - Suit for recovery of possession - 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. (Para 21)

Estoppel and Acquiescence - 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 - 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 18-21)

Equity - 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)

Constitution of India, 1950 ; Article 136 - 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. (Para 3)

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