The bench of justice BR Gvai and CT Rvikumar of the Supreme Court held that an encroacher cannot be termed as a 'transferee' to seek the benefit of Section 51 of the Transfer of Property Act.

The Court held that "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 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 possession would tantamount to allowing a trespasser/encroacher to purchase another man’s property against that man’s will.

Discussing the doctrine of laches or acquiescence, the court held that it has no place to defeat the 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 his establishing his title over it.

Discussing section 51 of the Transfer of Property Act, the Court held that, "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 the election for one of the two alternatives provided under that Section would still rest with the person evicting. In other words, he may 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."

The Court framed the issue "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 ‘that acquiescence would not apply if lapse of time is of no importance or consequence’."

"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. 

Case Details:-

Civil Appeal No.6182-6183 of 2009
Baini Prasad (D) Thr. LRs.  …Appellants
Versus
Durga Devi  …Respondents

Advocates for the parties:-

For Appellant(s)

Ms. Kiran Suri, Sr. Adv.
Mr. S.J. Amith, Adv.
Ms. Aishwarya Kumar, Adv.
Mr. Krishna Kumar, Adv.
Dr. (mrs.) Vipin Gupta, AOR

For Respondent(s)
Mr. Rajesh Srivastava, AOR
Mr. Gaurav Verma, Adv.
Mr. Neeraj Dutt Gaur, Adv.