Punjab-Haryana High Court
Mohinder Pal Son Of Shri Nihal Chand Son ... vs Smt. Omwati Wife Of Shri Prem Singh on 15 November, 2013
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.2920 of 1984 (O&M)
Date of decision:15.11.2013
Mohinder Pal son of Shri Nihal Chand son of Shri Sat Ram Dass,
resident of Hissar Road, Rohtak.
...Appellant
versus
Smt. Omwati wife of Shri Prem Singh, resident of Adarsh Nagar,
Rohtak and another.
....Respondents
II. Regular Second Appeal No.2092 of 1985 (O&M)
Smt. Devki Bai wife of Vasdev son of Moti Ram, resident of 226,
Subhash Nagar, Rohtak.
...Appellant
versus
Mohinder Pal son of Shri Nihal Chand son of Shri Sat Ram Dass,
resident of Qilla Road, Rohtak and another.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Kabir Sarin, Advocate,
for the appellant in RSA No.2092 of 1985.
Mr. M.S. Rana, Advocate,
for Mr. Ashish Kapoor, Advocate,
for the appellant in RSA No.2920 of 1984
and for respondent No.1 in RSA No.2092 of 1985.
Mr. Raman Mahajan, Advocate,
for the respondents in RSA No.2920 of 1984.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ?Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
Kumar Sanjeev
2013.11.25 10:26
I attest to the accuracy and
integrity of this document
chandigarh
Regular Second Appeal No.2920 of 1984 (O&M) -2-
K.Kannan, J.
1. Relevant facts
1. Both the appeals arise out of two suits filed by the same plaintiff. The plaintiff's contention was that he was the owner of the suit property in revenue estate, Rohtak. The suit was dismissed by both the courts on a finding that the plaintiff had established his title to the property, but however a relief of mandatory injunction for demolition of the building that had been put up by the respective defendants in the two suits cannot be afforded to the plaintiff. At the appellate Court, in the appeal filed by Devki Bai and Vas Dev, the Court reversed the judgment holding that when the plaintiff had not himself committed any fraud or made any false representation allowing for construction to be put up, his suit for mandatory injunction cannot be declined. The appellate Court also took note of the fact that the defendants had themselves not secured any sanction from the Municipal Committee before putting up any construction and, therefore, they were bound to vacate the property. The extent of encroachment noticed by the trial Court was 162 square yards delineated by letters 'MNIO' in Khasra No.11012/8276. The appeal by the defendants is in RSA No.2092 of 1985.
2. In yet another appeal filed by the plaintiff against Omwati, the appeal was dismissed and the Court found that the defendant in that case had actually misunderstood that the suit Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) -3- property was her own property and after a demarcation done through officials, a municipal sanction had also been issued for putting up construction. The plaintiff had actually allowed for the construction to come up at all times without any objection and, therefore, the plaintiff was barred by estoppel and acquiescence.
3. The appeal by the plaintiff in RSA No.2920 of 1984 is taken up along with RSA No.2092 of 1985 filed at the instance of the defendants. I have formulated common questions of law as arising and I have taken a specific point for a focus of whether the Court could come to inconsistent findings and decrees although the case arose out of a common set of facts of the respective defendants putting up constructions on the suit property that belonged to the plaintiff under the belief that they were the owners through sale deeds who sourced their title to the same third party/vendor and who had believed that they were putting up constructions in the property that they belonged to them.
II. Alleged illegal construction-when estoppel could be raised against true owner
4. I take the issue of title as concluded by the concurrent judgments rendered by the trial Court and the appellate Court and examine only on the issue of whether the plaintiff's right to the property could be defeated and the prayer for mandatory injunction for demolition of construction could be denied by alleged Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) -4- acquiescence and estoppel. For the principle of estoppel to be applied, it is essential that all the ingredients of Section 115 of the Evidence Act are satisfied. In a particular situation where the plaintiff sues on title and it is sought to be defeated by a person that the plaintiff had allowed for construction to be made, then the most crucial aspect has to be that the person, who is sought to be barred by the principle of estoppel must be found guilty of having made a representation and the other party must have acted on such representation and altered the situation to his disadvantage. It is only if there was some representation that was expressed or implied by a person against whom the principle is to be invoked that a plaintiff can be defeated in his right by estoppel. There has been no attempt at the trial that the plaintiff had allowed or authorized the defendants to put up construction and he resiled from the same later. I have no doubt in my mind that the case simply does not answer the legal requirements of estoppel under Section 115 of the Evidence Act.
III. Title cannot be lost by acquiescence; nature of frame of suit, relevant
5. Another principle which was invoked while allowing the appeal filed by the plaintiff which is the subject of appeal in RSA No.2920 of 1984 is that the plaintiff was guilty of acquiescence. The principle of acquiescence is invoked in cases where a relief of Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) -5- mandatory injunction is sought against a defendant to do an act in his (defendant's) own property which invades the plaintiff's right. A typical illustration could be of a construction made by the defendant in his own property and over which, the plaintiff has right of way. If the plaintiff fetters his own exercise of right by allowing the defendant to do an act, he would be barred by acquiescence in such a case. The case has been dealt with by the Supreme Court in Krothapalli Satyanarayana Versus Koganti Ramaiah and others- 1984(2) SCC 439 which examines the issue of acquiescence of a party, who had allowed her own right of way to be trampled by the defendant's construction. The situation would be different where a right to immovable property of the plaintiff is sought to be invaded by the defendant trespassing into the property and putting up construction. If the suit is filed for recovery of possession and claims as an ancillary relief, a mandatory injunction for removal, then acquiescence cannot come in the way. The plaintiff shall be entitled to recover possession of the whole property. The situation, however, would be different if the suit is not for recovery of possession, but the suit is only for mandatory injunction. Mandatory injunction by itself is in the genre of equitable relief which is discretionary. The Court may exercise its discretion not to grant the said relief and merely grant a relief of compensation. This distinction is brought out in Nelson's law of Injunction, 7th edition, Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) -6- Volume-I, pages 220 to 223. The text paraphrases two judgments, one in Evin Shauk Wa Versus U. Pa Nyun-ILR 5 Rang. 404 and another in the judgment of this Court in Municipal Committee, Nakodar Versus Sadhu Ram-ILR 1957 Punjab 638. If in a case where the plaintiff does not ask for possession, but ask only for mandatory injunction directing the defendant to demolish the construction, the Court may well take into account the factor that so long as the plaintiff does not ask for possession of his property, he may lose his right by acquiescence. Where an encroacher puts up construction on another's land not being entitled to the superstructure, the plaintiff can be given the full relief by a simple decree for possession which would mean directing a demolition of the building, even without a prayer for any mandatory injunction against the defendant. If there is also a relief of mandatory injunction in such a suit for possession, it is merely for the purpose of giving an opportunity to the trespasser to remove the superstructure put up by him and to avail himself an opportunity to mitigate his own loss. In the decision of this Court in Municipal Committee, Nakodar (supra), the suit was for declaration of title in which a prayer for injunction had been sought as auxiliary to the relief of declaration. The Court said that it was not a suit to which Section 54 of the old Specific Relief Act will apply. This corresponds to Section 38 of the Specific Relief Act, 1963. The Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) -7- learned Judge pointed out that such was not a case in which the Court is free to uphold the title and yet in the exercise of its discretion refuse to grant the relief of injunction and the relief of injunction cannot be claimed as a substantive relief independently of the declaration sought.
6. Nelson's Law of Injunction, at page 220, para 30, sets out the law thus:
"...........The fact that the property involved is of small value or is of no practical use to the plaintiff is wholly irrelevant to the grant of the relief to the plaintiff. Equally irrelevant is any consideration as to whether the defendant would be inconvenienced or subjected to any hardship by the grant of a decree in ejectment against him. It is a simple case of trespass or encroachment on the plaintiff's property and the defendant is entitled to no consideration, while granting relief to the plaintiff with reference to the wrong committed by the defendant. In such a case, if the defendant instead of simply occupying the land after his encroachment and trespass puts upon a construction, can his position be in any way better? If it is to be held that simply because the defendant, in addition to committing trespass or encroachment, has put up a construction on the land and because of such Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) -8- construction, there is a discretion left in the Court either to grant a decree for possession after directing the defendant to demolish the construction or to award damages instead of directing such demolition, that will be placing such a person in a better position for having aggravated his wrong by putting up a construction. In such a situation there can be no equitable consideration in favour of the defendant and as a matter of fact all notions of equity and justice will be opposed to any such contention. ........."
IV. Relief of recovery cannot be denied, if title established but relief of mandatory injunction is always discretionary.
7. In the first category of suit, where the plaintiff's suit for possession was complaining of trespass committed by the defendant, it can never be stated that the plaintiff could be adequately compensated by only relief of damages in the second category of cases where merely the relief of mandatory injunction is asked, the discretion is available for the Court to grant such a relief or not. In the former case, acquiescence is not relevant to deny the relief of recovery of possession. It may be applied only for providing for compensation for a defendant, who has suffered damage of putting up construction. In the latter case, acquiescence will disable a person from securing equitable relief. In such an event, the Court Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) -9- will be competent to substitute the relief for damages against the defendant in favour of the plaintiff as a compensation for the right lost.
8. The principle which I have elicited has statutory basis as well. In a suit for recovery of possession based on title, Article 65 of the Limitation Act provides for a period of 12 years from the time when the defendant's possession become adverse. If the defendant's construction has come about by way of trespass, a suit for declaration and for recovery of vacant possession cannot be defeated by the theory of acquiescence. The defendant shall not be without remedy. Section 51 of the Transfer of Property Act allows for a compensation to be claimed by a person, who puts up construction bona fide believing the property belonged to him. The suit for recovery of possession that is decreed can apply Section 51 and secure to a defendant against whom possession is sought to compensate the defendant for the construction put up by him. However, in a mere suit for mandatory injunction, there is no provision for limitation but it shall be granted only in the manner contemplated under Section 39 of the Specific Relief Act, if such a relief were to be on stand alone basis. This qualification becomes essential, for, this is not a mere suit for mandatory injunction. The plaintiff has sought for recovery of possession through court as an alternative prayer in both suits. Section 39 of the Specific Relief Act Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) - 10 - reads thus:-
"39. Mandatory injunctions.- When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
9. Two contingencies are contemplated in this provision:
(i) that the relief of mandatory injunction shall be to prevent the breach of an obligation; and (ii) it shall be in respect of certain acts which the Court is capable of enforcing. If both conditions exist, the third supervening condition applies, viz., that the Court may in its discretion grant the relief to prevent the breach and to compel the performance of the requisite acts. If the decree is obtained, the limitation under Article 135 of the Limitation Act is that it shall be within 3 years, while the execution of any other decree is 12 years under Article 136. The idea is that a person seeking for mandatory injunction shall exercise the relief with utmost diligence. Since both the suits are not only for mandatory injunction but prayer for recovery of possession has been sought as an alternative relief, but the suits have been filed when the respective constructions of the defendants had come up nearly fully and only flooring had to be completed, it would be grossly improper to allow for construction Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) - 11 -
for one party only because he had obtained municipal sanctions and deny the same to another person, who had not secured such sanction. Sanction after all was not taken from the plaintiff in either case. If the plaintiff had allowed for the construction to come in her presence and to her knowledge, it surely did not present an occasion for the plaintiff to compel the construction to be demolished without adequate reparation to defendants who have put up construction. V. If mandatory injunction is not justified, the remedy shall be damages or direction for sale.
10. The Court has, while dismissing the suit which is the subject matter of appeal against Omwati in RSA No.2920 of 1984 has observed that since the plaintiff was not prepared to accept compensation, she was being denied the same. I find that the plaint has actually been amended also for compensation even at the trial Court. In RSA No.2920 of 1984, the contention was that there had been an encroachment to the extent of 211 square yards. In RSA No.2092 of 1985, the Court itself has found that the extent of encroachment is 162 square yards.
11. The way out shall be the application of the principle under Section 51 of the Transfer of Property Act. The Section reads as under:-
"51. Improvements made by bona fide holders under defective titles.- When the transferee of immovable Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) - 12 -
property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom 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 interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. (emphasis supplied) 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."
VI. Examination of options: Direction for sale, appropriate relief.
12. The options are: either compensate the defendants, who as transferees of immovable property have put up construction by direction to the plaintiff to pay for the value of improvements or direct the plaintiff to sell his interest in the property. A decision of Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) - 13 - the Madras High Court in R.S. Muthuswami Gounder Versus A. Annamalai and others-AIR 1981 Mad 220 directed compensation to the plaintiff from the defendant who had encroached the property. I respectfully disagree with such a view since it is against the manner of exercise of anyone of the statutory alternatives. If a case is not made for demolition of the building, the direction could be only for sale of the property encroached at the market value, without reference to the value of the improvement by the defendant. In the alternative, it shall be the obligation on the plaintiff to pay for value of the construction to the respective defendants in recognition of right of compensation to defendant. It is not the other way about, as laid down in R.S. Muthuswami Gounder (supra). Since the constructions are residential houses, I shall allow for retention of the building by the defendants and direct the sale of the encroached portions to be respective defendants. The plaintiff shall be granted the relief of value of the property, as on date of when the decree is now passed. A preliminary decree is granted therefor in the interest of justice.
VII. Disposition
13. Both the second appeals are, therefore, partly allowed. The appeal filed by Devki Bai in RSA No.2092 of 1985 is allowed setting aside the decree for mandatory injunction for removal of construction. The defendant-appellant is, however, liable for the Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) - 14 - present market value of the property. RSA No.2920 of 1984 filed by the plaintiff is partly allowed, declining the prayer for mandatory injunction and the relief for the value of the extent of 211 square yards. The value to be determined shall be current market rate. There shall be sales by the plaintiff to the defendants in the manner indicated below.
14. Since the direction in the respective suits is for sale deeds to be executed by the plaintiff and secure to the plaintiff value thereof from the defendants, I adopt the procedure for decree for specific performance, with reversal of roles for the plaintiff and the respective defendants. The trial Court shall carry through this decree for passing of a final decree by appointing an advocate Commissioner to determine valuation of the respective portions found as encroached. The parties may let in evidence therefor. The trial Court shall finalize the consideration which shall be a measure of damages for the property compulsorily ordered to be sold and for the consequential loss of the property and direct the amounts to be deposited within a period which the trial Court shall specify. It shall follow all the trappings for decree for specific performance and also the consequence of default and rescission of decree as provided under Section 28 of the Specific Relief Act. In the event of rescission, the plaintiff will also be delivered possession of the property with direction to demolish the constructions. The further Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2920 of 1984 (O&M) - 15 - process to be carried through shall be on court on its own motion, as soon as the records are received. The parties shall also be at liberty to apply for final decree and set in motion the process indicated above.
15. Both the appeals are disposed of on the above terms. There shall be no direction as to costs.
(K.KANNAN) JUDGE 15.11.2013 sanjeev Kumar Sanjeev 2013.11.25 10:26 I attest to the accuracy and integrity of this document chandigarh