In C.A.No.6182-6183 of 2009-SC- Sec.51 of Transfer of Property Act applies to transferee who makes improvements in good faith on property believing himself to be its absolute owner: Supreme Court
Justices B.R. Gavai & C.T. Ravikumar [02-02-2023]

READ JUDGMENT: BAINI PRASAD (D) THR. LRS V. DURGA DEVI

Mansimran Kaur

New Delhi, February 3, 2023: While reaffirming that concurrent finding of fact does not call for interference in an appeal under Article 136 of the Constitution in the absence of any valid ground for interference, the Supreme Court has held that the appellant was not entitled to rely on the provision under Section 51 of the Transfer of Property Act, 1882 to seek for restoration of the modification made by the First Appellate Court with respect to demolition and possession as he couldnot be treated as a transferee within the meaning of the Act.

The Division Bench of Justice B.R. Gavai and Justice C.T. Ravikumar dismissed the instant appeals by observing, “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.”

The respondent had filed a Civil Suit for possession of land 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/ appellant from interfering on disputed land and other land appurtenant to it, owned by her.

The suit was decreed and upon holding the respondent/ 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. 

Nonetheless, the First Appellate Court modified the judgment and decree holding that the plaintiff/respondent was not entitled to recover possession of the said  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.

Subsequently, Regular Second Appealwas filed challenging the modification of the judgment and decree of the Trial Court by the respondent. As per the impugned judgment, the High Court allowed the Second Appeal and set aside the judgment for compensation while restoring the decree of the Trial Court for demolition and handing over of the possession of the encroached land.

The review petition filed by the appellant in the said Second Appeal was dismissed by the High Court.Hence, the present appeals were instituted. 

After considering the submissions from both the sides, the Court found  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.

Reference was made to the judgments in Janak Dulari Devi and Anr. v. Kapildeo Rai & Ghisalal v. Dhapubai. It was further noted that scope of consideration in these appeals was to be confined to the question as to whether the reversal by the High Court of the modification effected by the First Appellate Court warranted interference in exercise of power under Article 136 of the Constitution.

In view of the same, the Court noted that according to the appellants, the respondent  did not object and resort to civil remedy against the construction effected on the land in dispute within a reasonable time and, therefore, she was  estopped from claiming recovery of the land in question after demolition of the structure raised thereon. 

The Bench noticed 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 was protected under Section 51 of the Transfer of Property Act, 1882.

“Section 51 of the Transfer of Property Act, 1882 applies in terms to a transferee who makes improvements in good faith on a property believing himself to be its absolute owner, the Bench said while  holding that the appellants were  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 next issue that was required to be addressed was whether the appellant herein/defendant had pleaded and proved his plea of estoppel. To deal with the same, reliance was placed on the judgment in R.S. Madanappa v. Chandramma .

“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”, the Court stated. 

The entire circumstances revealed from the evidence on record unerringly pointed to the fact that the appellant had encroached upon land belonging to the respondent and without bona fides effected constructions, the Court  further noted. 

Considering such circumstances, the Court failed to find any flaw in the findings on the substantial questions of law by the High Court and dismissed the appeals.