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

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 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. [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 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]

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 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 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 A B C D E F G H BAINI PRASAD (D) THR. LRS. v. DURGA DEVI 285 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 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. 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 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. [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 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 A B C D E F G H 286 SUPREME COURT REPORTS [2023] 3 S.C.R. A B C D E F G H 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 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]

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 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 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 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. (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 : [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; 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 Reddy v. Appu Goundan (1971) ILR 2 Madras 155 – referred to. Case Law Reference [2011] 6 SCR 96 [2011] 6 SCR 757 [2011] 1 SCR 651 [1963] SCR 208 [1965] SCR 283 [2014] 2 SCR 656 referred to referred to referred to referred to referred to referred to [2002] 4 Suppl. SCR 601 referred to (2022) 2 SCC 301 referred to Para 3 Para 3 Para 3 Para 12 Para 12.1 Para 12.2 Para 12.3 Para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.6182- 6183 of 2009. A B C D E 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 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 G H 288 SUPREME COURT REPORTS [2023] 3 S.C.R. A B C D E F G H 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 (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 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 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. BAINI PRASAD (D) THR. LRS. v. DURGA DEVI [C. T. RAVIKUMAR, J.] 289

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 Janak Dulari Devi and Anr. v. Kapildeo Rai and Anr.1, Ram Prakash Sharma v. Babulal2 and 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 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 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