Whether it is duty of the court to give mandatory injunction in cases of trespass?

  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 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 Khan (1956) 69 LW (Andhra) 52 extracted in agreement in the decision by the learned Single Judge of High Court of Madras in the decision in Bodi Reddy v. Appu Goundan MANU/TN/0426/1970 : (1971) ILR 2 Madras 155, 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:

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. 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 legal right to the property.

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. 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 right of the Plaintiff to obtain the relief on his establishing his title.  {Para 20}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6182-6183 of 2009

Decided On: 02.02.2023

Baini Prasad (D) Thr. LRs. Vs. Durga Devi

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0088/2023.

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Whether the court can grant benefit of S 51 of Transfer of Property Act to encroacher of land?

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 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 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 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 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.

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. 

10. The original Appellant has failed to establish that he is a "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. 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 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 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. 

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6182-6183 of 2009

Decided On: 02.02.2023

Baini Prasad (D) Thr. LRs. Vs. Durga Devi

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0088/2023

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Whether bonafide purchaser can be granted compensation for improvement made by her in absence of pleading and proof?

Under provisions of Section 51 of the said Act, a person making improvements in the property should have acted believing in good faith that he is absolutely entitled to the property. What actions are taken believing in good faith would depend on the facts of each case and hence, the importance of necessary pleadings in that regard. A general belief that the party was a bona fide purchaser for valuable consideration without any further details would not suffice the requirements of making out a case for grant of compensation under Section 51 of the said Act. Hence, the absence of pleadings that the defendant No. 3 believed in good faith that she was absolutely entitled to the property is a big handicap in her effort to seek compensation under Section 51 of the said Act.

9. The evidence on record led by the defendant No. 3 who was the purchaser of the suit property indicates that before executing the sale deed in favour of the defendant No. 3, no public notice came to be issued. It was also admitted that neither he nor the defendant No. 3 were present when the sale deed was executed. He further admitted that after receiving the telegram at Exhibit-52 from the plaintiff, no attempt was made to contact the plaintiff nor was any enquiry made in the office of the Sub Registrar with regard to the plaintiff's sale deed.

10. In Bajrang @ Hanumant Tatyaba Kakade (supra), the test that has to be applied to find out if the purchaser acted bona fide and took reasonable care and caution in making enquiry into the title of the property has been referred to. In paras 5 and 6 of said decision, it has been observed thus:

"5............................................................ The oft quoted and well known passage is reiterated in Bailey v. Barnes, (1984) 1 Ch. 25, 35 which aptly describes the obligation of the vendee before the purchase and that reads thus :

"A purchaser of property is under no legal obligation to investigate his vendor's title. But in dealing with real property, as in other matters of business, regard is had to the usual course of business; and a purchaser who wilfully departs from it in order to avoid acquiring a knowledge of his vendor's title is not allowed to derive any advantage from his wilful ignorance or defect which would have come to his knowledge if he had transacted his business in the ordinary way."

6. The aforesaid is the test which has to be applied to find out whether the purchaser acted bona fide and took reasonable care and caution in making usual enquiry into the title. If he succeeds in showing that even if he had transacted the business in ordinary way he was not in a position together that there was none other owner than the vendors, then, such vendee could be described as bona fide purchaser. On the other hand, if while transacting the business in the ordinary way the vendee would have come to know that there were owners other than the vendor, it cannot be said that such vendee has acted bona fide".

If the evidence led by the defendant No. 3 is tested on the aforesaid touchstone, the same falls short for holding that the defendant No. 3 had acted believing in good faith and had taken reasonable care and caution before purchasing the property.

11. The plea as raised by the defendant No. 3 with regard to absence of mutation entries in the name of the plaintiff cannot further her case inasmuch as the mutation entries are taken for fiscal purposes and cannot be treated as documents of title. Merely on the ground that the plaintiff had not got any mutation entry made in her favour pursuant to purchasing the suit property would not dispense with the necessary enquiries that are required to be made by a purchaser who believes in good faith that he is absolutely entitled to the same. The expressions "believing in good faith" and "absolutely" entitled indicate the nature of enquiries required to be undertaken by a purchaser who seeks to rely upon the provisions of Section 51 of the said Act.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 317 of 2014

Decided On: 31.07.2017

Maya Namdeorao Kharodkar Vs. Bhagyashree Pramod Dave and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2018(1) MHLJ 150

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