TaxTMI 
TaxTMI 
2023 (2) TMI 1450
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....aintiff) 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 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 ....
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....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 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 cont....
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....ct 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 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....
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.... 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 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 consid....
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....rjee [AIR 2014 SC 1304], 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. 12.3 In the decision in B.L. Shreedhar v. K.M. Munnireddy [AIR 2003 SC 578], 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 thu....
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....e 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. 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 ....
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....icate 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 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 appe....
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....on "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 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. N....