Summary
A Kullu landowner sued in 1988 for possession of eleven biswansi on which her neighbour had built a verandah; the trial court decreed demolition and possession, the first appellate court substituted compensation of Rs. 5,500 on the ground of acquiescence, and the Himachal Pradesh High Court restored the decree. The Supreme Court dismissed the encroacher's heirs' appeals: Section 51 of the Transfer of Property Act protects only a transferee holding under colour of title in good faith, not an encroacher; the plaintiff objected by telegram and complaint within months and sued within limitation, so silence or delay cannot found acquiescence; and denying recovery to a proven owner would let a trespasser buy another's land against her will.
Issues
- Whether an encroacher who builds on another's land can invoke Section 51 of the Transfer of Property Act, 1882 or the plea of acquiescence to resist a decree for demolition and recovery of possession and confine the owner to compensation.
Provisions considered
- Section 51, Transfer of Property Act, 1882The right to require payment for improvements or sale of the land arises only for a transferee who held possession under colour of title, adverse to the true owner, in the bona fide belief of good title; an encroacher with no title who builds at his own risk is not such a transferee, and in any event the election between the alternatives rests with the evicting owner. (¶¶ 7, 8, 9, 10, 11)
- Section 115, Indian Evidence Act, 1872Following Pratima Chowdhury, estoppel requires a factual representation, reliance, alteration of position and inequity in reversion; following Abdul Kader v. Upendra, mere silence is a representation only where there is a duty to speak, and a plaintiff who objected by telegram and complaint and sued within limitation made no representation of consent. (¶¶ 12, 12.1, 12.2, 12.3, 15, 17, 18, 19)
Held
- Concurrent findings on ownership and encroachment are not reopened under Article 136; the defendant's own plea that he completed the verandah in 1986, before the plaintiff bought the land in 1987, is incoherent with acquiescence by her, he produced no completion certificate, and the plaintiff sent a telegraphic notice on 22.09.1987, complained to the Deputy Commissioner on 10.12.1987, obtained a demarcation report and sued on 11.05.1988. (¶¶ 3, 15, 16, 17)
- In a suit for possession filed within limitation, laches or acquiescence has no place to defeat the owner's right on proof of title; to confine the owner to compensation would sanction appropriation of her property and allow a trespasser to purchase another's land against her will, as held in N.C. Subbayya and Bodi Reddy, and no misrepresentation by act or omission was shown. (¶¶ 20, 21, 22)
Result
Appeals dismissed without costs; Himachal Pradesh High Court judgment dated 27.12.2007 in RSA No. 276 of 1996 restoring the trial court's decree for demolition and recovery of possession, and order dated 27.03.2008 dismissing the review, upheld.