IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 07.10.2010 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL S.A.No.409 of 1997 Vijayalakshmi ... Appellant/ Defendant Vs 1.Sulochana (deceased) 2.P.R.Ramakrishnan 3.R.Venkataraman 4.R.Raghu 5.R.Babu 6.R.Varalakshmi 7.R.Shyamala 8.R.Shanthi (Respondents 2 to 8 are brought on record as LRs of the deceased, sole respondent vide order of Court dated 23.08.2007 made in CMP No.1961 of 2007) ... Defendants/ Plaintiff PRAYER: Appeal is filed under Section 100 C.P.C as against the Judgment and Decree dated 23.08.1995 in A.S.No.6 of 1994 on the file of Subordinate Court, Poonamallee. (O.S.No.1583/83 dated 12.6.93 on the file of the court of the District Munsif, Poonamallee) For Appellant : Mr.N.Jayabalan For Defendants : Mr.Alladi Venkateshan for R2 to R8. JUDGMENT The Appellant/Respondent/Defendant has filed this Second Appeal as against the Judgment and Decree dated 23.08.1995 in A.S.No.6 of 1994 on the file of Subordinate Court, Poonamallee. 2.The First Appellate Court viz., the Learned Subordinate Judge, Poonamallee, while passing the Judgment in A.S.No.6 of 1994, dated 23.08.1995 has among other things observed that 'the Appellant/ Respondent/Defendant has to vacate the land in question and that the Respondent/Appellant/Plaintiff is entitled to the recovery of the possession since the https://hcservices.ecourts.gov.in/hcservices/ Appellant/Respondent/Defendant has made improvements by way of putting the superstructure on the land in question and that the Respondent/Appellant/Plaintiff has to pay the value of the house to the Appellant/Respondent/Defendant etc., and moreover, opined that the Respondent/Appellant/Plaintiff is entitled to the relief of declaration of the suit property and that she is entitled to the recovery of the possession and further directed the Respondent/ Appellant/Plaintiff to pay the compensation for the superstructure besides directing him to deposit into the Court below the value of the building as on date of filing of Execution Proceedings and take possession of the suit site as well as the building and thereby allowed the Appeal and dismissed the Cross Appeal.' 3.Before the trial Court, in the main suit 1 to 4 Issues have been framed for adjudication. 4.On the side of the Respondent/Appellant/Plaintiff witness PW1 has been examined and Ex.A.1 to Ex.A.5 have been marked. On the side of the Appellant/Respondent/Defendant witness DW1 has been examined and Ex.B.1 to Ex.B.22 have been marked. 5.The trial Court on an appreciation of oral and documentary evidence on record has come to the resultant conclusion that the Appellant/Defendant has to pay a sum of Rs.12,000/-being the suit vacant land value from the date of Plaint till date of passing of the Decree together with interest @24% per annum and accordingly decreed the suit without costs and has also granted two months time for payment of the amount. 6.Being dissatisfied with the Judgment and Decree passed by the First Appellate Court viz., the Learned Subordinate Judge, Poonamallee dated 23.08.1995 in A.S.No.6 of 1994, the Appellant/ Respondent/Defendant has preferred this Second Appeal before this Court. 7.At the time of the admission of the Second Appeal, this Court has framed the following substantial questions of law. "(1)Whether the Appellant being a transferee having effected improvements on the suit property in good faith is entitled to the choice of paying the land value to the respondent in terms of Section 51 of Transfer of Property Act?. (2)Whether the provisions of Section 51 of Transfer of Property Act is different from the plea of Equitable Estoppel?. https://hcservices.ecourts.gov.in/hcservices/ 8. The Contentions, Discussions and Findings on Point Nos.1 and 2: According to the Learned Counsel for the Appellant/Respondent/ Defendant, the First Appellate Court viz., the Learned Subordinate Judge, Poonamallee has failed to see that the Appellant/Defendant has investigated the title and that he has applied for Encumbrance Certificate for the period from 1965 to 1984 as per Ex.B.17 to Ex.B.20 and the earlier Encumbrance Certificate has not revealed any subsisting encumbrance and moreover, the evidentiary value of Ex.B.2 Sale Deed dated 28.01.1980 and Ex.B.3 Ratification Deed dated 09.04.1981 have not been appreciated by the First Appellate Court. 9.Advancing his arguments, the Learned Counsel for the Appellant/defendant submits that Ex.B.2, Ex.B.13 and Ex.B.17 to Ex.B.20 has led to the Advocate offering an opinion certifying the title of the vendor of the Appellant to the suit property in Ex.B.21 and this aspect of the matter has not been adverted to the First Appellate Court in a proper perspective and in reality it should have held that the Appellant/Defendant has purchased the property in good faith and that apart, the Appellant/Defendant has put up constructions and made improvements on the suit property and incurred huge debts to effect such improvements, but, this aspect has not been looked into by the First Appellate Court in a real perspective. 10.The contention of the Learned Counsel for the Appellant/Defendant is that the Appellant/Defendant will incur an irreparable loss if she is required to sell the improvements made by her in the property because of the fact she has incurred heavy expenses and on the other hand, no prejudice will be caused to the Respondent/Appellant/Plaintiff if the cost of the land is to pay to her. 11.Proceeding further, it is the contention of the Learned Counsel for the Appellant/Defendant that the First Appellate Court has considered the claim of the Appellant/Defendant in terms of Equitable Estoppel and not as per the Section 51 of the Transfer of Property Act and in regard to the choice and value of the land in any event, the First Appellate Court ought to have applied the ingredients of Section 51 of the Transfer of Property Act and sustained the Judgement and Decree of the trial Court passed in the main suit. 12.In short, the Learned Counsel for the Appellant/Respondent/ Defendant projects the plea that the First Appellate Court has not taken into the relevant attendant facts and circumstances of the case in a realistic way and therefore prays for allowing the Appeal in the interest of justice. https://hcservices.ecourts.gov.in/hcservices/ 13.Per contra, the Learned Counsel for the Respondents 2 to 8 (LRs of the deceased Plaintiff) submits that the First Appellate Court has considered the oral and documentary evidence available on record and on an appreciation of the entire gamut of the matter in a cumulative manner has come to a Fair, Just and Equitable conclusion in allowing the Appeal filed by the Respondent/Plaintiff/Appellant and the same need not be interfered with by this Court at this stage of the Second Appeal. 14.In the Plaint filed by the Respondent/Appellant/Plaintiff, at Paragraphs 3 and 4, it is averred as follows: "3.The plaintiff herein is the owner of a plot more particularly described in the schedule hereunder. The plaintiff has purchased the suit mentioned plot for a valuable consideration from one K.B.Padmanabhan, sole proprietor of M/s.Vijayalakshmi and Company under the registered sale deed dated 10.08.1966. Ever since the date of purchase the plaintiff had been in possession and enjoyment of the property in her own right. 4.The plaintiff is a resident of Pattabhiram Village, which is about 10 miles away from the suit property. Taking advantage of the same, defendant herein had trespassed into the suit mentioned site probably during the month of January 1983 and began to raise constructions over the same." 15.Further, it is the case of the Respondent/Plaintiff that her husband during the month of April 1983 has come to know about the trespass when he has inspected the site and objected to the raising of constructions. But, the Appellant/Defendant's husband has promised to make arrangements but has been evading and that he has informed the Respondent/Plaintiff that he has purchased the same plot from one Murugan as per Sale Deed dated 28.01.1980 and as a matter of fact, the Appellant/Defendant's Vendor has no right, title or interest to convey the property to the Appellant and that the said Sale Deed is a fraudulent one. 16.The core contention of the Respondent/Plaintiff is that she has purchased the suit site as early as in the year 1966 and no one can convey the same to the Appellant/Defendant and further that, any amount of loan obtained by the Appellant/Defendant for construction will not justify the raising of constructions on the suit property by trespassing on it. 17.The Respondent/Plaintiff in the main suit has prayed for the relief of a declaration of her title to the suit property and for vacant possession of the suit plot from the Appellant/Defendant. https://hcservices.ecourts.gov.in/hcservices/ 18.The stand of the Appellant/Defendant is that she has purchased the suit property by means of Ex.B.2 Sale Deed dated 28.01.1980 and that she has been in possession and enjoyment of the same without interruption from any one and that she has been employed with the Corporation of Madras and she applied for housing loan and has submitted a flawless legal opinion from the Government Pleader and that she has submitted Encumbrance Certificate from the year 1965 to 1979 to the Corporation of Madras which do not disclose any encumbrance over the suit property and further, she has applied for permission before the Ambattur Municipal Township for construction of a building and the same has been sanctioned in B.P.G.No.223 of 81, dated 28.04.1981 which has been confirmed by the Madras Metropolitan Development Authority and the Corporation has sanctioned the loan to her for the construction of the building and that the building has been completed in the year 1992 which is assessed to property tax. 19.Continuing further, the plea put forward on the side of the Appellant/Defendant is that she being a bonafide purchaser of the suit property having obtained from the loan etc., has constructed the building with the full knowledge of the Respondent/Plaintiff and as such she is not entitled to get the relief of declaration as prayed for in the Plaint. 20.In the Additional Written statement filed by the Appellant/Defendant before the trial Court, the Appellant has pleaded that as per Section 51 of the Transfer of Property Act, the Respondent/Plaintiff can be compensated only as the Appellant/Defendant has put up construction by spending an amount of Rs.1,50,000/- and as on date the market value would be easily about Rs.3,00,000/- and the Appellant/Defendant's superstructure cannot be demolished. But, the Respondent/Plaintiff is entitled to the compensation only in respect of the land as on date of Plaint, which has been valued at Rs.12,600/- and that the Ameen of the trial Court has noted the building in the suit property. 21.The Evidence of PW1 (husband of Respondent/plaintiff) is to the effect that his wife has purchased the suit plot from one K.B.Padmanabhan and that they have taken possession of the property and has been enjoying the same by putting fence and he has put gate on one side and around the property he has raised a wire fence and in four corners of the property he has kept a white stone at the height of six feet and the distance between the suit property and his residence from Pattabhiram is at 15 KM and he used to personally inspect the property once in two or three months and during the early year of 1983, he has seen someone has encroached upon the suit property and has come to https://hcservices.ecourts.gov.in/hcservices/ know that the Appellant/Defendant has encroached upon the same and when he has seen the suit property, at the time, a foundation has been raised, for which he has raised his objection and that the Appellant/Defendant's husband informed him that you will stop the construction and further informed him one Padmanabhan and Murugan has sold the property to him in the year 1980. 22.It is the only evidence of PW1 that Murugan has no right to sell the property and for a week the Appellant/Defendant's husband has stopped the construction though he has informed him to remove the material, but he has not removed the same. 23.It is the evidence of PW1 (in cross examination) that the Appellant/Defendant has finished the construction of the building only after his wife has filed the case and that his wife has purchased the property in the year 1966. 24.The Appellant/Defendant as DW1 in an evidence has deposed that Ex.B1 is the Agreement of the Sale dated 16.12.1979 and at the time of entering into agreement, the place remained vacant and in the year 1980, she has purchased the property as per Ex.B.2 Sale Deed dated 28.01.1980, Ex.B.3 Ratification Deed dated 09.04.1981 and Ex.B.4 Panchayat permission order dated 28.04.1981 and she has finished the construction in the suit property, during the year 1982. 25.Further, DW1 in her cross examination has stated that she has presently to know about the purchase of the suit property by the Respondent/Plaintiff as per Ex.A1 Sale Deed dated 10.08.1966 and she has purchased the property by paying a sale consideration of Rs.4,000/- and at the time, she has not enquired about the encumbrance in respect of the property and Murugan has sold the property to her, who is the owner as a legal heir. 26.It is the contention of the Learned Counsel for the Appellant/Defendant that the Respondent/Plaintiff for 6 or 7 months has not objected to the putting up of construction after issuance of notice and further has allowed the Appellant/Defendant to proceed with the construction and upto the raising of foundation, the husband of the Respondent/Defendant PW1 has seen the same and as such the Appellant/Defendant is entitled to the 'plea of Estoppel'. 27.Also, the Learned counsel for the Appellant/Defendant submits that if the Appellant/Defendant is not entitled to claim the relief under Section 115 of the Evidence Act, then, she is to get the benefits under Section 51 of the Transfer of Property Act, which is an equitable remedy pertaining to compensation for the improvement so made. https://hcservices.ecourts.gov.in/hcservices/ 28.According to the Learned Counsel for the Appellant/Defendant, the Respondent/Plaintiff is no more and her legal heirs have been impleaded as R2 to R8 in the Second Appeal and further, the Appellant is 75 years old and she has been in occupation of the property for more than 27 years and at this stage, requiring to accept the value of the superstructure in a great injustice. 29.Countering the submissions of the Learned Counsel for the Appellant, it is the contention of the Learned Counsel for the Respondents 2 to 8 (LRs of the deceased First Respondent/Plaintiff) that PW1 being the husband of the deceased plaintiff, is a competent witness to adduce evidence before the trial Court as per Section 120 of the Indian Evidence Act and Ex.B.3 is the Ratification Deed and the Appellant/Defendant being a subsequent purchaser, who has purchased the plot and put up a construction in a small portion on a larger area is not entitled to take away the entire land and that Estoppel is the theory of equity and the large extent of land is 3600 sq.ft in Plot No.72 and the corner of a plot and the construction has been made to a small portion of 600 sq.ft in the corner of a plot and the Appellant/Defendant cannot claim equity, ignoring the case and the title of the first Respondent/Plaintiff (since deceased) and a Court of Law cannot give the clean chit to the Appellant/Defendant being a second purchaser and indeed, Section 51 of the Transfer of Property Act will alone apply and not Section 115 of the Indian Evidence Act. 30.Added further, it is the submission of the Learned Counsel for the Respondents that the First Respondent/Plaintiff (since deceased) being a prior purchaser has a better title and the right of subsequent purchaser is to have a value of improvement estimated and paid by the earlier purchaser and the preference has to be given only to the purchase made by the First Respondent/Plaintiff (since deceased) and not the second purchaser viz., Appellant/Defendant and that the Appellant/Defendant's address is different from the address of the suit at Ambattur and therefore, the Appellant could not be contacted and because of the different address more silence on the part of the First Respondent/Plaintiff (since deceased) is not Equitable Estoppel. 31.The pith and substance of the contention of the Learned Counsel for the Respondents 2 to 8 is that the Appellant/Defendant wants to take away the entire land and the Appellant/Second purchaser who has no title to the suit property is in the possession of the trespasser and only if the Appellant/Defendant has applied for an encumbrance in the entire lay out, then only the encumbrance will reflect the true state of https://hcservices.ecourts.gov.in/hcservices/ affairs and in the instant case, the Appellant/Defendant has not applied for Encumbrance Certificate in respect of the entire lay out and the owner of the land has to pay a compensation to the owner of the building for improvement made and compensation to be paid by the Respondents/Plaintiffs will have to be determined at the time of eviction proceedings and the value of building has not yet been decided. 32.At this stage, the Learned Counsel for the Appellant cites the decision of the Honourable Supreme Court B.L.Sreedhar and Others v. K.M.Munireddy (dead) and Others, (2003) 2 Supreme Court Cases 355, at Page 356 and 357, wherein it is laid down as follows: "Estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Evidence act, 1872 which lays down that when one person has by his declaration, act or omission cause or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that things. On the whole, an estoppel seems to be when, in consequence of some previous act or statement to which he is either party or privy, a person is precluded from showing the existence of a particular state of facts. Estoppel is based on the maxim allegans contraria non est audiendus (a party is not to be heard to allege the contrary) and is that species of presumption juries et de jure (absolute or conclusive or irrebuttable presumption), where the fact presumed is taken to be true, not as against all the world, but against a particular party, and that only by reason of some act done, it is in truth a kind of argumentum ad hominem. Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority. Estoppel, then, may itself be the foundation of a right as against the person estopped, otherwise the principle of estoppel would not afford any protection to the person by whom it may be invoked nor would it create any disability in the person against whom it operates in cases affecting rights. Where rights are involved, estoppel may with equal justification be https://hcservices.ecourts.gov.in/hcservices/ described both as a rule of evidence and as a rule creating or defeating rights. An estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it. 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 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." 33.He also relies on the decision M.A.Raju v. Annaiah and Others, AIR 2003 Karnataka 497, wherein it is held that 'Merely because party has not specifically coined phrase 'Doctrine of estoppel' as defence, it would be wrong to overlook true legal effect of defence etc.' 34.However, the Learned Counsel for the Respondents cites the decision of this Court M.Ramalingam v. N.Thangavelu 1997-2- L.W. 35, wherein it is held that 'Mere silence by itself will not amount to representation unless a duty is cast on plaintiff to speak about the limits, and if so, plaintiff must be made aware of the limits of the property.' 35.He seeks in aid of the decision of this Court K.S.Chidambaram v. Gomathi Ammal and Others 1996 (II) MLJ 59, wherein it is held thus: "Acquiescence imports not only full knowledge of facts, which will enable the parties to the factual and actual action, but also wilful shutting of his eyes and the positive inaction tantamounting to an implied consent. It would not be that laches alone, even if proved to exist could be raised to the level of acquiescence, inasmuch as the acquiescence imports active assent in contrast to laches which can be passive or indifference. Acquiescence is often construed and held to be an instance of law of estoppel by words or conduct." https://hcservices.ecourts.gov.in/hcservices/ 36.Yet another decision of this Court is relied on the side of the Respondents Rama Aiyar and others v. Narayanasami Aiyar and others AIR 1926 Madras 609, wherein it is observed as follows: "Bona fides is not incompatible with ignorance of law, nor is it incompatible with a certain degree of negligence. The degree of negligence is, of course, a matter to be determined according to the circumstances of each case." 37.The Learned Counsel for the Respondents invites the attention of this Court to the decision Periakaruppan alias Palani, minor through his cousin sister and guardian Karuppayee and Others v. Madura Kajimartheru Pallivasal through its Managing Trustee and another 1937 The Madras Weekly Notes 533, wherein it is held as follows: "If land is waste land then is not necessary for its owner to do anything more than to prove that the land belongs to him and it is not necessary to support his case by evidence of overt acts of possession, which would really be inconsistent with the nature of the land. He need only prove such possession as the property is capable of; and that done, in the absence of any proof as to entry by some other person on the land beyond the twelve years period, the owner in entitled to succeed. (ii)that the defendants being trespassers were not entitled to compensation under Section 51 of the Transfer of Property Act." 38.Apart from the above, the Learned Counsel for the Respondents cites the following decisions: (a)In the decision of Honourable Supreme Court J.Narayana Rao v. Y.G.Basavarayappa and others 1956 Supreme Court 727, wherein it is held hereunder: "Section 51 merely lays down an equitable principle and enables a Court to determine the equities between the parties. A decree in the form in which it had been passed in this case, which was a suit for redemption and possession could have been passed. However, having regard to the provisions of Section 51 if the evidence enables a Court to do so, it should assess the valuation of the improvement as at a date as near as possible to the date of actual eviction rather than the dater of election as had been done in this case." https://hcservices.ecourts.gov.in/hcservices/ (b)In Daya Ram and Others v. Shyam Sundari and others AIR 1965 Supreme Court 1049, at Page 1051 and 1052 in Paragraphs 7 and 8, it is inter-alia observed as follows: 7.The ground upon which the learned trial Judge considered that the defendants were entitled to this equity was that Mata Din had made the constructions on the land, being obliged to do so by reason of the agreement with the Trust and that he effected these improvements as a Co-owner and not as trespaser and that in entering into an agreement