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Benefit Of Section 51 Of Transfer Of Property Act Cannot Be Extended To An Encroacher: Supreme Court

Aditi Rai ,
  07 February 2023       Share Bookmark

Court :
Supreme Court
Brief :

Citation :
Civil Appeal No. 6182-6183 of 2009


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


2 February 2023


Justice BR Gavai

Justice CT Ravikumar


The learned Apex Court, in the present case, held that since an encroacher can not be termed as a transferee for the purpose of section 51 of the Transfer of Property Act he can not claim the benefit extended under the section.


Section 51- deals with improvements made by bonafide holders though they are holding a defective title- When the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he 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.


  • The original plaintiff (respondent in the present appeal) filed a suit for recovery of possession and to permanently restrain the original respondents (appellants in the present appeal)  from interfering on the disputed land and lands appurtenant to it that are all owned by her.
  • The suit was decreed in her favour by holding the respondent herein/plaintiff as the owner of the encroached land handing over the same after demolition of the structures put up there was ordered.
  • The First Appellate Court then reversed the original decree.
  • On an appeal against the same, the High Court upheld the original decision of the Trial  Court.
  • Aggrieved by it, the appellants have preferred the present appeal before the Apex Court.


  • It was contended by the learned counsel for the appellant that the respondent did not take recourse to the civil remedy available against the construction effected on her land within a reasonable time so she is estopped from claiming recovery of the land in question after demolition of the structure raised thereon.
  • That the appellant has effected the constructions on the bona fide belief that he himself was the owner of the land.


  • Whether the benefit of section 51 of the TP Act available to an encroacher?


  • The learned Court noted that section 51 of TP Act and principe of estoppel u/s 115 of Evidence Act are conceptually converse and thus can not co-exist.
  • The Court observed that in order to attract section 51 of TP act, three things must be established by the one claiming its benefit 
  • The occupant must have held possession under color of title
  • his possession must not have been by mere possession of another but adverse to the title of the true owner
  • he must be under the bone fide belief that he has secured good title to the property in question and is the owner thereof.
  • The Court further noted that as it has been rightly observed by the courts below that the respondent is the true owner of the land and the appellant had encroached upon it, the appellant can not be said to be entitled to the benefit of section 51.
  • The Court also observed that when in a suit for recovery of possession by the owner of a land, he establishes his title, then merely because some structures are erected by the encroacher ignoring the objection, that too without any bona fide belief, such owner can not be denied the relief sought as it would tantamount to allowing a trespasser/encroacher to purchase another man’s property against that man’s will.


In light of the above observations made, the Court concluded that there exists no legal error, or illegality in the findings on the substantial question of law by the High Court. Thus the Court while ruling in the favour of the appellants, dismissed the appeal. 

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