Holding

The appellant is not a transferee within the meaning of Section 51 of the Transfer of Property Act and cannot rely on estoppel; therefore the High Court’s restoration of the trial court decree is affirmed.

Summary

The respondent, Durga Devi, owned an 11‑biswas land parcel in Kullu and sued the appellant, Baini Prasad, for possession and demolition of a verandah he had constructed on that land in 1986, claiming he believed it to be his own. The trial court ordered demolition and restoration of possession to the respondent; the First Appellate Court modified the decree, holding that the respondent was estopped by acquiescence and awarding only compensation. The High Court set aside that modification, restoring the trial court’s decree. The Supreme Court examined whether the appellant could invoke Section 51 of the Transfer of Property Act, 1882 and the doctrine of estoppel to avoid demolition. It held that the appellant was not a “transferee” under s. 51 because he lacked colour of title, adverse possession, and bona‑fide belief, and that the respondent’s timely objection and notice negated any claim of acquiescence or estoppel. Consequently, the High Court’s decision was affirmed and the appeals were dismissed.

Issues considered

The appellant’s entitlement to relief under Section 51 of the Transfer of Property Act, 1882.
Whether the doctrine of estoppel or acquiescence can bar the respondent’s claim for possession.
Whether the appellant qualifies as a ‘transferee’ for the purposes of Section 51.

Legislation cited

Subjects

Transfer of Property ActSection 51EstoppelAcquiescenceEncroachmentPossessionAdverse possessionEquityReal propertyCompensationDemolition

Judgment

282 [2023]
SUPREME COURT 3 S.C.R. 282
REPORTS [2023] 3 S.C.R.

A BAINI PRASAD (D) THR. LRS.
v.
DURGA DEVI
(Civil Appeal Nos. 6182-6183 of 2009)
B
FEBRUARY 02, 2023
[B. R. GAVAI AND C. T. RAVIKUMAR, JJ.]
Transfer of Property Act, 1882 : s. 51 – Protection under –
C Suit by the respondent for possession of the land by demolition of
the structure put on by the appellant and for permanent prohibitory
injunction restraining the appellant from interfering with the said
land – Appellant’s case that two years ago he had carried out
construction of the verandah in the land as part of his residential
house bonfidely believing it to be his own land – Suit decreed in
D favour of the respondent – However, the first appellate court held
that the respondent not entitled to the possession of the land after
demolition of the structure put up based on the principles of
acquiescence, however, entitled to compensation – High Court set
aside the order of the first appellate court and restored that of the
E trial court – Review application there against also dismissed – On
appeal, held: Appellant cannot be treated as a ‘transferee’ within
the meaning and for the purpose of s. 51 – To attract s. 51, the
occupant of the land must have held possession under the colour
of title, and his possession must have been adverse to the title of the
true owner – Concurrent findings of the courts below that the
F respondent is the owner of the land in question and the original
appellants had encroached upon it and ignoring the absence of
any title made structures thereon at his own risk – Thus, the
appellants not entitled to rely on the provision u/s. 51 to seek for
restoration of the modification made by the first appellate court
G with respect to demolition and possession – 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 had acquiesced in the infringement of his legal right
and still stood by and allowed the construction – Furthermore, in
the absence of any misrepresentation by an act or omission, the
H
282
BAINI PRASAD (D) THR. LRS. v. DURGA DEVI 283

mere fact that the respondent took some reasonable time to approach A
the court for recovery of possession cannot, be a reason to deny
him the relief – No flaw, legal error, perversity or patent illegality
found in the findings – Thus, the judgment of the first appellate
court set aside and that of the trial court restored – Principle of
acquiescence and estoppel – Evidence Act, 1872 – s. 115.
B
Dismissing the appeals, the Court
HELD: 1.1 The contention of the appellants founded on
Section 51 of the Transfer of Property Act, 1882 is totally misplaced
and misconceived. This position would be revealed if ground ‘b’
raised in these appeals is juxtaposed to ground ‘d’. Noticeably, C
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 D
51, TP Act and the principle of estoppel under Section 115 of the
Evidence Act, 1872 are converse and cannot co-exist. [Para
7][290-C-D]
1.2 The original appellant failed to establish that he is a
“transferee” within the meaning of the TP Act and for the purpose E
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. Section 51 gives only F
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 is the owner of the land in question and
the original appellants had encroached upon it and effected
construction. The appellants have failed to establish the above G
mentioned three things. The evidence on record would also go
to show that even the construction was effected in deviation of
the approved plan. [Para 10][292-C-E]
1.3 In the light of the concurrent findings on the questions
of ownership and encroachment, it can only be held that it was H
284 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 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, the appellants are not
entitled to rely on the provision under Section 51, TP Act to seek
B
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
C 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. [Para 11][292-F-H; 293-A]
1.4 To invoke the concept of estoppel the defendant has to
specifically plead each and every act or omission, as the case
D may be, that constitutes representation from the plaintiff. [Para
12][293-F]
1.5 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. [Para 14][295-G]
E
1.6 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 had not produced the completion
certificate of building including the construction on the land in
F question from the local body to establish the asserted fact. [Para
16][296-F-G]
1.7 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
G
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

H
BAINI PRASAD (D) THR. LRS. v. DURGA DEVI 285

the respondent herein had acquiesced in the infringement of his A
legal right and still stood by and allowed the construction. In that
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
B
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 C
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
D
instituting the suit, especially when it was filed well within the
period of limitation prescribed, should not have been held as
amounting to acquiescence. The respondent 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 E
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
F
establishing her title over the encroached land in a suit instituted
well within the prescribed period of limitation. [Para 17][296-G-
H; 297-A-F]
1.8 Estoppel is a principle founded on equity and its object
is only to prevent and secure justice between the parties. In the
proven circumstances that the original appellant was not having G
title over the property, that the respondent 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 against the construction she should not have
shut out by the rule of acquiescence or by the rule of estoppel for H
286 SUPREME COURT REPORTS [2023] 3 S.C.R.

A having made a representation to make the original appellant to
believe that she had consented for the construction. [Para
19][298-A-C]
1.9 The entire circumstances revealed from the evidence
on record unerringly point to the fact that the appellant had
B 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, would
be defeated if the said illegality is recognized and allowance is
granted therefor. [Para 20][298-C-D]
C 1.10 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
D to purchase another man’s property against that man’s will. 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
E to deny him the relief him of recovery of possession of the
encroached land on his establishing his title over it. [Para 21][299-
D-E, F-G]
1.11 No flaw, legal error, perversity or patent illegality is
found in the findings on the substantial questions of law by the
F High Court ultimately, in favour of the respondent and in setting
aside the judgment and decree of the first appellate court and
also in restoring the judgment and decree of the trial court. [Para
22][299-H; 300-A]
Janak Dulari Devi and Anr. v. Kapildeo Rai and Anr.
G (2011) 6 SCC 555 : [2011] 6 SCR 96; Ram Prakash
Sharma v. Babulal (2011) 6 SCC 449 : [2011] 6 SCR
757; Ghisalal v. Dhapubai (2011) 2 SCC 298 : [2011]
1 SCR 651; Nedunuri Kameswaramma v. Sampati Subba
Rao AIR 1963 SC 884 : [1963] SCR 208; R.S.
Madanappa v. Chandramma AIR 1965 SC 1812 :
H [1965] SCR 283; Pratima Chowdhury v. Kalpana
BAINI PRASAD (D) THR. LRS. v. DURGA DEVI 287

Mukherjee AIR 2014 SC 1304 : [2014] 2 SCR 656; A
B.L. Shreedhar v. K.M. Munnireddy AIR 2003 SC 578
: [2002] 4 Suppl. SCR 601; Chairman, State Bank of
India & Anr. v. M.J. James (2022) 2 SCC 301; Abdul
Kader v. Upendra 40 C.W.N 1370; N.C. Subbayya v.
Pattan Abdulla Khan (1956) 69 LW (Andhra) 52; Bodi
B
Reddy v. Appu Goundan (1971) ILR 2 Madras 155 –
referred to.
Case Law Reference
[2011] 6 SCR 96 referred to Para 3
C
[2011] 6 SCR 757 referred to Para 3
[2011] 1 SCR 651 referred to Para 3
[1963] SCR 208 referred to Para 12
[1965] SCR 283 referred to Para 12.1
D
[2014] 2 SCR 656 referred to Para 12.2
[2002] 4 Suppl. SCR 601 referred to Para 12.3
(2022) 2 SCC 301 referred to Para 13
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.6182-
E
6183 of 2009.
From the Judgment and Order dated 27.12.2007 and 27.03.2008
of the High Court of Himachal Pradesh at Shimla in RSA No.276 of
1996 and CRP No.4 of 2008 respectively.
Ms. Kiran Suri, Sr. Adv., S. J. Amith, Ms. Aishwarya Kumar, F
Krishna Kumar, Dr. (Mrs.) Vipin Gupta, Advs. for the Appellants.
Rajesh Srivastava, Gaurav Verma, Neeraj Dutt Gaur, Advs. for
the Respondent.
The Judgment of the Court was delivered by
G
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
H
288 SUPREME COURT REPORTS [2023] 3 S.C.R.

A by special leave. Subsequent to his death the legal heirs got themselves
impleaded as appellants 1(a) to 1(g). The former appeal is 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
B
(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
C 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
D
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
E 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
F
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
G and handing over of the possession of the encroached land was restored.
The 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
H and Mr. Rajesh Srivastava, learned counsel for the respondent.
BAINI PRASAD (D) THR. LRS. v. DURGA DEVI 289
[C. T. RAVIKUMAR, J.]

3. The succinct narration of facts as above would make it A
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
B
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 Janak Dulari Devi and Anr. v.
Kapildeo Rai and Anr.1, Ram Prakash Sharma v. Babulal2 and C
Ghisalal v. Dhapubai3).
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 D
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 E
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 F
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 G
and resort to civil remedy against the construction effected on the land
in dispute within a reasonable time and, therefore, she is estopped from
1
(2011) 6 SCC 555
2
(2011) 6 SCC 449
3
(2011) 2 SCC 298
H
290 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 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
B
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
C revealed if 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
D 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
E 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
F 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 or sown
on the property crops which are growing when he is evicted
G 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
H
BAINI PRASAD (D) THR. LRS. v. DURGA DEVI 291
[C. T. RAVIKUMAR, J.]

Section would still rest with the person evicting. In other words, he may A
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.
B
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’ C
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:- D

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 E
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 F
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
G
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 construction raised
by the petitioner is protected by virtue of Section 51 of TP
H
292 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 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
B
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
C “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.
D 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
E 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
F 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
G 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
H
BAINI PRASAD (D) THR. LRS. v. DURGA DEVI 293
[C. T. RAVIKUMAR, J.]

the land or to sell out the land to him at the market value of the property, A
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 B
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. Sampati Subba Rao4. 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 C
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 D
that mistrial which vitiates proceedings. We are, therefore, of
opinion that the suit could not be dismissed on this 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.”
E
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, F
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. Chandramma5, this
G
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
4
AIR 1963 SC 884
5
AIR 1965 SC 1812
H
294 SUPREME COURT REPORTS [2023] 3 S.C.R.

A party makes a representation to the other 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.
12.2In the decision in Pratima Chowdhury v. Kalpana
B Mukherjee6, 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
C 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
D position.
12.3 In the decision in B.L. Shreedhar v. K.M. Munnireddy7,
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
E 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
F 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.”
G
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.
6
AIR 2014 SC 1304
7
AIR 2003 SC 578
H
BAINI PRASAD (D) THR. LRS. v. DURGA DEVI 295
[C. T. RAVIKUMAR, J.]

13. The appellant has also relied on the decision of this Court in A
Chairman, State Bank of India & Anr. v. M.J. James 8, 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 B
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 C
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 D
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.” E
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 lapse of time, if any, is of no importance or consequence,
with reference to the factual position, in view of the exposition thereunder F
‘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 G
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
8
(2022) 2 SCC 301
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296 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 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
B
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
C 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
D 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
E 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 12.01.1988. The suit was instituted thereafter on 11.05.1988.

F 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.
G
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
H
BAINI PRASAD (D) THR. LRS. v. DURGA DEVI 297
[C. T. RAVIKUMAR, J.]

propounding the application of the principle of acquiescence it was the A
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 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
B
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 C
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
D
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. E
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
F
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 v. Upendra9. 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 G
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
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298 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 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
B
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.
C
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 be defeated
D 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 Khan10
extracted in agreement in the decision by the learned Single Judge of
High Court of Madras in the decision in Bodi Reddy v. Appu Goundan11,
E 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:-

F “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
G 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
10
(1956) 69 LW (Andhra) 52
11
(1971) ILR 2 Madras 155
H
BAINI PRASAD (D) THR. LRS. v. DURGA DEVI 299
[C. T. RAVIKUMAR, J.]

encouraged to do a wrongful act or commit a trespass relying A
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 B
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 C
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 D
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 E
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 F
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 G
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
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300 SUPREME COURT REPORTS [2023] 3 S.C.R.

A the respondent herein and in setting aside the judgment and 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.
B
24. There is no order as to cost.

Nidhi Jain Appeals dismissed.
(Assisted by : Pareekshit Bishnoi and Shashwat Jain, LCRAs)

C

D

E

F

G

H