IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 SA.No. 358 of 1995(A) --------------------- ( AS.51/1991 of SUB COURT, THIRUVALLA OS.211/1980 of MUNSIFF COURT, THIRUVALLA) .................... APPELLANT/RESPONDENT/DEFENDANT: ---------------------------------------------------------- THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM - 3. BY ADVS. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE SRI.P.GOPAL RESPONDENT/APPELLANT/PLAINTIFF: -------------------------------------------------------- K.P.MADHAAN PILLAI, AMBAKKATTU HOUSE, KARICHAL MUTRI, VEEYAPURAM VILLAGE. (DIED) ADDL. RESPONDENTS 2 TO 5 IMPLEADED --------------------------------------------------------------- ADDL.R2. RADHAKUMARI AMMA, W/O.DIVAKARAN PILLAI, RESIDING AT R.D BHAVAN, PALLATHU ROAD, NORTH KALAMASSERY, KALAMASSERY P.O., ERNAKULAM. “ R3. PRASANNAKUMARI AMMA, WIDOW OF LATE. MOHANAN PILLAI, RESIDING AT NAMPOORETH HOUSE, VELLAMKULANGARA, CHOORAKODE P.O., ADOOR, PATHANAMTHITTA DISTRICT. “ R4. M.UNNIKRISHNAN PILLAI, S/O.LATE MADHAVAN PILLAI, RESIDING AT AMBAKATTU HOUSE, KARICHAL, VEEYAPURAM P.O., (VIA) HARIPAD, ALAPPUZHA DISTRICT. “ R5. SREEKUMARI AMMA, W/O.RADHAKRISHNAN, RESIDING AT PUTHEN VEEDU, ELAMANOOR P.O., ADOOR, PATHANAMTHITTA DISTRICT. ARE IMPLEADED AS THE LHRS. OF DECEASED 1ST RESPONDENT AS PER THE ORDER DATED 06.9.2010 IN IA.47/2005. ADDL. R2 TO R4 BY ADV. SRI.P.S.KRISHNA PILLAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2010, THE COURT ON 22.12.2010 DELIVERED THE FOLLOWING: VK P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 358 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December, 2010. JUDGMENT Three decades of litigation proved too harsh for the plaintiff Sri.Madhavan Pillai, who left for the heavenly abode without waiting for the result of the litigation. His legal heirs have come on record as additional respondents 2 to 5. 2. It appears that late Madhavan Pillai, out of 3.54 acres of land obtained by him under Ext.A4 parted with 3.4 acres of land in favour of the defendant in the suit for the purpose of establishing a College. The balance 50 cents is claimed to have been retained by him. The allegation in the plaint was that the plaintiff in the suit noticed that the defendant has trespassed into a portion of his property and put up structures thereon. Inspite of demand to remove those structures and surrender vacant possession of the land trespassed upon, the defendant did not heed to the request, and the suit was laid by the plaintiff. S.A. 358/1995. 2 3. The defendants resisted the suit. They denied having trespassed into any portion of the property of the plaintiff and they are in possession of the property, which has been assigned to them by the plaintiff. If at all the defendant is found to be in possession of excess land, that would be treated as an unconditional surrender on the part of the plaintiff and he cannot seek recovery of the property. Apart from contending that the suit is barred by limitation, they also raised a plea that there is estoppel, which prohibits the plaintiff from seeking the relief. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendant had D.W. 1 examined. Exts.C1 and C2 are the commission plan and report. The trial court came to the conclusion that the plaintiff had miserably failed to establish his title to the suit property and dismissed the suit. On appeal by the plaintiff, the lower appellate court reversed the finding of the trial court and granted a decree in favour of the plaintiff. The defendant comes up in appeal. S.A. 358/1995. 3 5. The following questions of law have been raised in the memorandum of appeal: “I. Is the court below justified in holding that the plaintiff has title to the 11.968 cents which forms part of the site of substantial building merely on the Ext.A1 sale deed and on the basis of the extent of the property described therein? II. In the absence of any evidence in the case to substantiate the case of trespass to encroachment was not the court below bound to infer that the 11.968 cents was also delivered over to the defendant by the plaintiff as part of Ext.A1 property and that the defendant acquired title to the said portion also in extinguishment of the title of the plaintiff? III. Is not the plaintiff debarred from seeking recovery of possession on the basis of title, assuming he has title, he having stood by and encouraged the defendant in constructing permanent building in the 1.968 cents also? IV. Is not the plaintiff debarred from claiming recovery of possession dismantling the building by promissory as well as proprietory estoppel? V. Was not the court below bound to draw adverse inference against the case of the plaintiff from the long delay in filing the suit, in the facts and circumstances of the case? S.A. 358/1995. 4 VI. Is the court below justified in not adverting to the admission of the plaintiff that he had agreed for other land in lieu of the disputed 11.968 cents? Is the plaintiff under the circumstances claim for recovery of the 11.968 cents?” 6. Learned counsel appearing for the appellant pointed out that the lower appellate court was unjustified in upsetting the well considered and reasoned judgment of the trial court and has erred both on facts and in law. Being a suit based on title, it was incumbent on the part of the plaintiff to prove his title to the suit property and having not done so, a decree ought not to have been granted in his favour. Learned counsel relying on Exts.A1 and A4 pointed out that in fact if one carefully scrutinizes these two documents, it can be found that after assigning the property to the defendant, the plaintiff had no property left with him. There was no proper identification of the suit property inspite of a specific direction to that effect by the lower court in a remand order in an earlier round and that is sufficient for allowing this appeal and to send back the matter again to the trial court. It was finally contended that the evidence in the case clearly shows that when constructions were made in the disputed property, the plaintiff stood by and watched and S.A. 358/1995. 5 it was nearly 12 years thereafter the suit had been brought. Any right whatsoever with the plaintiff, even assuming there was any, was lost by waiver, estoppel and acquiescence. In support of his plea, the learned counsel relied on the decisions reported in Canadian Pacific Railway Company v. The King (AIR 1932 Privy Council 108), Delhi University v. Ashok Kumar (AIR 1968 Delhi 131), Bhagat Rajinder Kumar v. State of J. & K. (AIR 1960 J & K 50), Mool Raj v. Janeshwar Lal (AIR 1939 Lahore 502), Union of India v. K.P. Mandal (AIR 1958 Calcutta 415) and B.L. Sreedhar v. K.M. Munnireddy (AIR 2003 SC 578). 7. In reply, learned counsel appearing for the respondents contended that none of the contentions now raised by the learned counsel for the appellant has any merits. As regards the question of title, attention was drawn to the fact that there is no specific denial of the title to the property of the plaintiff in the written statement filed by the defendants. In the light of the said fact, it was not necessary for the plaintiff to adduce evidence to prove his title. It was also pointed out that when the constructions were put up in 1968, the plaintiff in the suit had taken objection to the same and had infact sent a notice. He was persuaded to believe certain S.A. 358/1995. 6 recommendations said to have been made by the Committee who took all necessary steps for establishing the College and therefore he did not immediately go in for a litigation. Later he found that he was betrayed, therefore he has no choice but to approach the court. In the light of these aspects, according to learned counsel, none of the contentions based on estoppel, waiver etc. have no force in law. 8. It may not be quite proper to say that the defendants had not disputed the title of the plaintiff. True, there was no specific plea as such in the written statement disputing the title of the plaintiff. But a reading of the judgment in A.S. 25 of 1985, which was an appeal against the initial order decreeing the suit by the trial court, it can be seen that the remand is made with the specific direction to ascertain the property obtained by the plaintiff under Ext.A4 and also the property said to have been assigned to the defendant as per Ext. A1. Exts.C1 and C2 are the commission plan and report. In Ext.C2 report it is stated that the property assigned to the defendant as per Ext.A1 document for the purpose of establishing the College was identified and that is marked as EFBCD in the plan. The report shows that there is no definite boundary separating the property possessed by the College and the property owned and possessed by S.A. 358/1995. 7 the plaintiff. They still lie as contiguous plots. The boundary of the two properties was determined as EF line. The property in dispute is shown as AFE and the commission report says that the constructions of the College extend to this portion of the property. The property, as having been trespassed upon, is identified as 11.96 cents. 9. Severe criticism was levelled by the learned counsel for the appellant against the commission report. Drawing attention to Ext.A1, which is the document of title of the defendant, it was pointed out that the properties assigned to the defendant are comprised in Sy.Nos. 76/13A, 76/13A-2, 76/13B-1, 76/13B-2, 76/13B-3, 76/13B-4, 76/12, 58/3-5-10, 58/3-6, 58/1A-6 and 58/1B-4. A perusal of the commission report shows that the properties identified by the commissioner as belonging to the College, which was assigned by the plaintiff are seen comprised in Sy. No.76/13 AB and 76/12. The commission report does not disclose anything about the other survey number and therefore it is contended that the identification is not proper. 10. Though the argument may look attractive at the first blush, it may not have much substance. It is true that the commissioner has reported that the properties assigned to the S.A. 358/1995. 8 defendant as per Ext.A1 is seen comprised in Sy. No.76/13AB and 76/12. The commission report has categorically stated that the property has been identified with the assistance of the Taluk Surveyor with the help of service sketch. It also appears that specific objection was taken to the commission report by the defendant. There was no attempt from the side of the defendant to show that the commission report is erroneous. In fact, the cross examination by the defendant of the commissioner, who was examined as P.W.2 was only formal. There is no reason to disbelieve the commission report. The contention based on the erroneous nature of the commission report is therefore only to be repelled. 11. It is difficult to believe the case put forward by the plaintiff that even though he had noticed that the College authorities had trespassed into a portion of the property and put up constructions therein, he kept quite because of certain assurances given to him by the committee members. Here, one has to notice that there is no case for the plaintiff that the Devaswom Board, who owns the College had given any such assurance. It is also interesting to note that the plaintiff was a member of the Committee which was formed for the purpose of obtaining land for establishing a S.A. 358/1995. 9 College. In his evidence, he says that when he initially saw the constructions, he did not object since he felt that that may prevent the establishment of the College. He therefore stood by and watched. He would depose in his evidence that the College authorities had promised him that they were reclaiming certain portions of land and after reclamation a portion of the property would be handed over to him. He believed them and kept quite. It is too difficult to accept this claim made by the plaintiff. First of all, one fails to understand how the College authorities had any power to enter into such an agreement with the plaintiff and one also fails to understand how the plaintiff believed them. It was the Devaswom Board who was establishing the College and who owned the property and the committee formed was only for the purpose of obtaining necessary extent of land for establishing the College. At the risk of repetition, one may notice that while the constructions were being put up in the disputed property, the plaintiff did not raise his little finger. He stood by and let the constructions go on. 12. Learned counsel appearing for the appellant brought to the notice of this court that the plaintiff had filed another suit O.S. 331 of 1984 with regard to a way which was running through his S.A. 358/1995. 10 property and seeking relief against the defendant herein. That suit had been dismissed and the judgment and decree have become final. In the light of the said fact, according to learned counsel, this suit is only to be dismissed. 13. May be that the dismissal of O.S.331 of 1984 might cause injury to the plaintiff. But to say that merely based on that fact that the present suit is to be dismissed cannot be countenanced. The present suit is one based on title and the plaintiff has been able to show through the commission report that the defendant has put up constructions in a portion of his property, which was really owned by him. One aspect of the case is that even as on date, there is no demarcating boundary between the property possessed and owned by the plaintiff and the property owned by the defendant. This is clear from the commission report and the commissioner has simply determined EF as the boundary line. It is also significant to note that going by the commission report, it is found that the defendant is in possession of 3.5 acres, that is one cent more than what they had obtained under Ext.A1. S.A. 358/1995. 11 14. Having come to the above conclusion, the question now remains is what is the relief to be granted to the parties. It cannot be disputed that the plaintiff stood by and watched when the defendant put up constructions encroaching into a portion of his property. The plaintiff has no case that he had no idea then that the property, over which the constructions were being made, is his property. He let the constructions go on and let them remain. Learned counsel appearing for the appellant would be justified in his submission that the rights of the plaintiff is affected by the principle of proprietary estoppel. 15. In the decision reported in Canadian Pacific Railway Company's case (supra) it was held as follows: “The foundation upon which reposes the right of equity to intervene is either contract or the existence of some fact which the legal owner is estopped from denying. Thus if B's conduct is such that from it may be inferred a contract by B not to disturb A in the possession of he land, or it may amount to a statement by B that the land is A's, upon the faith of which A has acted and built, then B is estopped from claiming to disturb the possession of A.” S.A. 358/1995. 12 16. In the decision reported in Mool Raj's case (supra) it was held as follows: “Where a person knowing that another person had encroached upon his land by erecting a costly building keeps silent and raises no objection to the encroachment he is estopped from bringing a suit for possession of land encroached upon by that person.” 17. In the decision reported in Union of India's case (supra) it was held as follows: “A representation in order to attract the rule of estoppel need not always be a representation of a physical fact, but may as well be the representation of an attitude or a state of mind, inasmuch as, the state of a man's mind is as such a matter of fact as the state of his digestion. If a man, either by words or by conduct has intimated that he consents to an act which had been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so 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. S.A. 358/1995. 13 Generally speaking, if a party has an interest to prevent an act being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license.” 18. In the decision reported in Bhagat Rajinder Kumar's case (supra) it was held as follows: “The question of estoppel or acquiescence is essentially a question of fact which has to be decided on proper materials before the Court and not in a writ proceeding.” 19. In the decision reported in University of Delhi's case (supra) it was held as follows: “It is not merely a positive or active declaration that can be the basis for a plea of estoppel, but also an act or omission can constitute such basis. An estoppel may arise from silence as well as words. However, to constitute an “estoppel by silence” or “acquiescence” it must appear the party to be estopped must be bound in equity and good conscience to speak and that party S.A. 358/1995. 14 claiming estoppel relied upon such silence or acquiescence and was misled thereby to change his position to his prejudice.” 20. In the decision reported in B.L. Sreedhar's case (supra) it was held as follows: “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, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. Of course, 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 S.A. 358/1995. 15 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.” 21. Spencer Bower and Turner had in Estoppel By Representation 3rd Edition at page 27 notes as follows: “Finally, proprietary estoppel is now recognized as an accepted term in the field to which it has been customary to refer as Acquiescence or Encouragement. There is, in the submission of the writer, no justification for the confusion of this form of estoppel with the doctrine of promissory estoppel, and this proposition is advanced in more detail in a later passage in the text. It is because of the tendency in some recent judgments to such a confusion of thought that the words “proprietary estoppel” are not further used in this treatise.” It is observed that encouragement or acquiescence may provide a foundation for estoppels in a variety of circumstances. The general principle is stated thus: “Where A has a right or title which B is in fact infringing under a mistaken belief that his acts are not acts of infringement at all, and A is aware of his own title or right, and also aware of B's invasion of that title or right, and of his erroneous belief that he is not encroaching thereon, but is lawfully exercising rights of S.A. 358/1995. 16 his own, and yet, with that knowledge, A so conducts himself, or so abstains from objection, protest, warning, or action, as to foster and maintain the delusion under which he knows that B is labouring, and induce B to act to his prejudice on the faith of the acknowledgment to be implied from such conduct or inaction, A is not permitted afterwards to assert his own rights against B, or contest B's rights against himself. The acts and conduct, or the silence and inaction, or both, which lead to these legal consequences, have been, in some of the authorities, described as “encouragement”; whilst in others, where passivity, “lying by”, and the purely negative aspect of the party's attitude is more conspicuous than positive action, “acquiescence” has been the term preferred. But whether it be called by either of these names, or is described eo nomine, as “estoppel”, without using either of them, or the term “estoppel” is used in conjunction with, and as the equivalent of, “encouragement”, or “acquiescence”, the rule in question, as will be more exactly demonstrated presently, rests upon the doctrine of estoppel by representation, of which it is a form, instance, or application.” 22. Snell's Equity 31st Edition at page 275 it is seen stated as follows: S.A. 358/1995. 17 “The Rule. In Taylor Fashions Ltd v. Liverpool Victoria Trustee Co. Ltd., Oliver J. provided the following statement of the elements of the doctrine: “If A, under an expectation created or encouraged by B that A shall have a certain interest in land thereafter, on the faith of such expectation and with the knowledge of B and without objection from him, acts to his detriment in connection with such land, a Court of Equity will compel B to give effect to such expectation.” 23. In the case on hand, the pleadings and the evidence would clearly reveal that the plaintiff was fully aware of the fact that the defendants were putting up constructions in his property, which was owned and possessed by him and not solely in the property assigned to the defendant by him. He raised no objection at that point of time. Though he claims that he had issued a notice to the defendant, there is no evidence in that regard. The subsequent notice is said to have been issued in 1980. In order to establish the issuance of notice, all that has been done is to produce two postal receipts. But for reasons best known to him, he has not produced the copy of the notice said to have been issued to the defendant. The suit is in the year 1980, i.e., 12 years after the constructions were made. The reason given for the delay is difficult to accept for S.A. 358/1995. 18 reasons already made mention of. Further, those constructions are integral parts of the College and have been there for the last 30 years. 24. It