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PATNA HIGH COURT
V.Ramaswami and Raj Kishore Prasad JJ.
Dr.Abdul Khair
Versus
Sheilla Myrtla James
Letter Patent Appeal No. 18 of 1954 ;
Decided On : JANUARY 09, 1957
ACQUIESCENCE - ENCROACHMENT - ESTOPPEL - COMPENSATION - OWNERSHIP RIGHTS - BUILDING EQUITY - LEGAL PRINCIPLES - CASE ANALYSIS - FACTUAL FINDINGS - FINAL DECISION: 1. Acquiescence or waiver cannot be established when both parties are unaware of their rights in the disputed property and are laboring under a mistake about their respective rights. 2. Building equity does not arise in favor of a party who encroaches on another's land if the encroacher was aware of the true ownership and the owner was unaware of the encroachment. 3. Estoppel by conduct does not apply when the person making the representation or engaging in the conduct did so under a mistake or error. 4. A decree for compensation in lieu of ejectment cannot be awarded against the will of the owner of the encroached land, as it amounts to allowing a trespasser to purchase another's property against their will. 5. The owner of the encroached land is entitled to recover possession of the land and is not estopped from claiming possession due to acquiescence, waiver, or estoppel by conduct. FACT OF THE CASE: - The plaintiff brought a suit for removal of an encroachment on his land and for an injunction restraining the defendants from opening windows, service doors, and discharging drain water on his property. - The first court decreed the plaintiff's suit partially, awarding compensation for the encroachment instead of ordering its removal. - The first court of appeal affirmed the lower court's decision, finding that both parties were mistaken about their respective rights in the encroached portion of the land. FINDING OF THE COURT: - The court found that the first court of appeal's finding of acquiescence was erroneous in law since both parties were unaware of their rights in the encroached land. - The court held that no building equity arose in favor of the defendants since they were aware of the true ownership and the plaintiff was unaware of the encroachment. - The court further held that estoppel by conduct did not apply because the plaintiff did not make any representation or engage in conduct that induced the defendants to act in a particular way. - The court concluded that the decree for compensation in lieu of ejectment was contrary to law and that the plaintiff was entitled to recover possession of the encroached land. ISSUES: 1. Whether the finding of acquiescence by the first court of appeal was correct in law. 2. Whether the defendants acquired building equity in the encroached land. 3. Whether the plaintiff was estopped from claiming possession of the encroached land. 4. Whether the decree for compensation in lieu of ejectment was lawful. RATIO DECIDENDI: - Acquiescence or waiver cannot be established when both parties are unaware of their rights in the disputed property and are laboring under a mistake about their respective rights. - Building equity does not arise in favor of a party who encroaches on another's land if the encroacher was aware of the true ownership and the owner was unaware of the encroachment. - Estoppel by conduct does not apply when the person making the representation or engaging in the conduct did so under a mistake or error. - A decree for compensation in lieu of ejectment cannot be awarded against the will of the owner of the encroached land, as it amounts to allowing a trespasser to purchase another's property against their will. FINAL DECISION: - The court reversed the decision of the first court of appeal and restored the judgment of the first court, decreeing the plaintiff's suit for possession of the encroached land. - The defendants were allowed to remove the structure standing on the encroached land and restore it to its original condition within six months, failing which the plaintiff would be entitled to get possession by removal of the encroachment through court at the defendants' cost. MAIN LEGAL POINT: - The owner of the encroached land is entitled to recover possession of the land and is not estopped from claiming possession due to acquiescence, waiver, or estoppel by conduct. CATEGORY: Property Law SUB-CATEGORY: Land Encroachment and Trespass
Raj Kishore Prasad, J.
1. This Letters Patent Appeal arises on a certificate granted by Misra J., against his judgment dated the 21st April 1954, in Second Appeal No. 1928 of 1949, affirming the judgment and decree of the first court of appeal allowing the plaintiff-appellant compensation amounting to Rs. 700.00 in lieu of the encroachment made on his land by the defendants-respondents.
2. The only question, which has been argued by Mr. Lal Narayan Sinha, Government Advocate, appearing for the plaintiff appellant is that on the finding of the court of appeal below that:
"Both the parties were labouring under some sort of mistake about their respective rights in regard to the encroached portion of the land. Somehow, a boundary dispute cropped up long after the appellants (that is, the defendants) construction which progressed for several months without any protest, and then it was found out that there had been an encroachment."
no question of acquiescence or waiver in law can possibly arise, and, as such, the finding on the question of acquiescence is erroneous in law; rather, it is negatived by the above finding of the court of appeal below itself. As a corollary to his contention, Mr. Sinha has further argued that if his contention is accepted to be correct, then there is no question of awarding compensation in lieu of the encroachment, as such a procedure is not warranted by law.
3. * * *
4. In order to appreciate the argument of the learned Government Advocate, it is necessary to know briefly the relevant facts bearing on this question.
5. The plaintiff-appellant brought a suit for removal of an encroachment on survey plot 80, under Khata 15, situate in Sepahilane, in the Gaya town. He also asked for a permanent injunction restraining the defendants from opening windows, service doors of the latrine and drain, and also from discharging the drain eves water. Contiguous north of the plaintiffs plot 80 lies survey plot 83, which is in possession of defendant No. 1 by virtue of purchase.
The plaintiff began to construct compound walls towards the north and east of his plot 80, and, when the construction had reached only 40 feet in length and 6 1/2 feet in height, defendant 1 started a row, whereupon the construction was stopped. The plaintiff, thereafter, got his land measured, and, then, he came to know that the defendants had encroached upon his land, plot 80, to the extent of 9 feet in breadth from north to south and 90 feet in length from east to west. The defendants began construction of their house on plot No. 83 four or five months before the institution of the present suit, and, in doing so, they made the encroachment in question and also opened window, drain, service-door of latrine etc. The defendants were asked to remove the encroachment, but they did not do so, and, therefore the suit was brought by the plaintiff for the reliefs stated above.
6. The first court decreed the plaintiffs suit to the extent of 90 x 5 only, but, on appeal by the defendants, the decree of the first court was modified to this extent only that the plaintiff was awarded compensation amounting to Rs. 700.00 in lieu of the encroachment made on his land, because the learned Subordinate Judge, who heard the appeal, took the view that the plaintiff could not be allowed to demolish the building at this late stage and get vacant possession of the land.
7. The plaintiff, therefore, preferred a second appeal to this court, which was heard by Mr. Justice Misra, before whom the only question canvassed was about the correctness of the decree awarding compensation in lieu of encroachment, Mr. Justice Misra observed that
"according to the finding of the learned Subordinate Judge the plaintiff being ignorant of his right, the question of acquiescence cannot properly speaking arise ; but his Lordship found himself unable to accept the appellants contention that, in these circumstances, "it must necessarily follow that the person, who has suffered as
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