Two questions- Whether the construction on an encroached land is protected under Section 51 of the Constitution of India? Whether silence of defendant at the time of construction would amount to estoppel of her right to claim her property in question?
The Supreme Court stated that to fall under the scope of Section 51 of the Transfer of Property Act, 1882 the claimant must prove that he is the transferee of the encroached land, and he must be in possession of the land. Improvement on property must be made by “transferee”, however, encroacher is not transferee. His possession must not have been by mere possession of another but adverse to the title of the true owner and he must be under the bone fide belief that he has secured good title to the property in question and is the owner of that property.
Further, the defendant not objecting at the time of construction has amounted appellate a heavy expense but that does not entitle him take mandatory injunction, he is only entitled for the compensation further, the defendant holds her right to demolish any construction built on her land.
[Baini Prasad v. Durga Devi, (2023) 6 SCC 708]
Case Comment: An encroacher must not be benefited under the provisions of Section 51 of TPA, 1882. Improvement on property must be made by “transferee”, however, encroacher is not transferee. Further, he is only entitled for the compensation for construction made on encroached land even if defendant was silent at the time of construction.
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