Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.6182-6183 of 2009
Baini Prasad (D) Thr. LRs.
…Appellants
Versus
Durga Devi
…Respondents
J U D G M E N T
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.
Signature Not Verified
Subsequent to his death the legal heirs got themselves
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
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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
1
Janak Dulari Devi and Anr. v. Kapildeo Rai and Anr. ,
1 (2011) 6 SCC 555
Page 4 of 26
2
Ram Prakash Sharma v. Babulal and Ghisalal v.
3
Dhapubai ).
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
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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
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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.
4
Sampati Subba Rao . 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.
5
Chandramma , 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
6
Mukherjee , 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.
7
Munnireddy , 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
8
James , 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
9
v. Upendra . 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
10
Khan extracted in agreement in the decision by the
learned Single Judge of High Court of Madras in the
11
decision in Bodi Reddy v. Appu Goundan , 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