Encroacher can raise plea of estoppel or acquiescence?

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

R.S.A. No. 4172 of 2013
Dated: 1st March, 2017.

Bishamber Singh and others
V
Rajinder Singh

Coram :The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Citation: AIR 2017 HP61

The defendants are the appellants and have come up in appeal against concurrent findings recorded against them by the learned Courts below.

2. The facts as necessary for the adjudication of the case are that the respondent/plaintiff (hereinafter referred to as the ‘plaintiff’) filed a suit for vacant possession of the land to the effect that he is owner of the land comprised in Khata No. 27 min, Khatauni No. 53, Khasra No. 1006, measuring 0-07-932 HM, situated in Mohal Bhapoo, Tehsil Indora, District Kangra, H.P. to the extent of ½ share and as such, the plaintiff asserts himself to be co-sharer to the extent of ½ share in the suit land. As per the plaintiff, the defendants are strangers having no right, title or interest in the suit land, but the defendants out of high handedness encroached upon the suit land by raising construction. It was averred that in October, 2007 when the defendants started covering the area by fencing, he applied for demarcation of his land i.e. Khasra No.1006 and upon demarcation conducted by Kanungo on 25.10.2007, it was found that the defendants had encroached upon the land of the plaintiff to the extent of 0-01-16 HM i.e. the suit land. Thus, on the basis of demarcation conducted by the Kanungo and confirmed by A.C. IInd Grade on 13.11.2007, the plaintiff as co-owner seeks possession of the suit land from the defendants.

3. The suit was opposed by the defendants by filing written statement. It was averred that they have constructed their house in Khasra No. 1016. It was alleged that the said demarcation was wrong and the correction application has been filed by the defendants. However, the defendants did not claim any title or adverse interest to the ownership of the plaintiff, but denied the correctness of the demarcation report and prayed for dismissal of the suit.

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4. From the pleadings of the parties, the learned trial Court on 21.03.2009 framed the following issues:

1. Whether plaintiff alongwith other cosharers are owners of the suit land, as alleged? OPP.

2. Whether the defendants have encroached upon the part of the suit land despite being strangers to the same, as alleged? OPP.

3. Whether the plaintiff is entitled to the relief of possession qua the suit land against the defendants by way of demolition, as alleged? OPP.

5. Whether the plaintiff has no cause of action or locus-standi, as alleged? OPD.

6. Whether the plaintiff is guilty of suppression of facts OPD

7. Whether the suit is not properly valued for the purpose of Court fees and jurisdiction, as alleged? OPD.

8. Relief.

5. The learned trial Court vide judgment and decree dated 28.03.2011 decreed the suit of the plaintiff. The appeal filed by the defendants against the judgment and decree dated 28.03.2011 of the learned trial Court, resulted in dismissal and this is how the defendants are before this Court by way of the present regular second appeal.

6. On 27.3.2014, this Court admitted the appeal on the following substantial questions of law:

“1. Whether the Courts below have failed to decide the
issues No.4 and 5 in their legal and proper sense as inspite
of the specific allegation by the plaintiff that encroachment
has been done on a particular date but since the plaintiff has
failed to prove this part of the pleadings as such the suit of
the plaintiff was required to be dismissed being not
maintainable and without any cause of action in favour of the
plaintiff?

2. Whether the Courts below have failed to take into
consideration the principle of acquiescence and equity while
passing the decree of possession whereas, the plaintiff could
have been compensated in the terms of money qua the area
found being encroached by the defendants and the
demolition order of the house where the defendants are
residing could have been avoided?”

I have heard learned counsel for the parties and gone through the records of the case carefully.

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Substantial question of law No.1.

7. The issues No.4 and 5, read thus:

“4. Whether the suit is not maintainable, as alleged? OPD.
5. Whether the plaintiff has no cause of action or locusstandi,
as alleged? OPD.”

8. As would be evident from the aforesaid issues, the onus to prove the same was upon the defendants/appellants and not upon the plaintiff/respondent. The issues No.4 and 5 have been answered by the learned trial Court in the following manner:

“ISSUE NO.4:

“12. The onus to prove this issue was upon the defendants.
There is no specific evidence on this issue. It is not stated as
to how the suit is not maintainable. Further, this issue was
not pressed at the time of arguments. Accordingly, my
findings on this issue are in the negative and against the
defendants.

ISSUE NO.5:

13. The onus to prove this issue was upon the defendants.
There is no specific evidence on this issue. It is not stated as
to how the plaintiff has no cause of action or locus-standi to
file the present suit. Further this issue was not pressed at the
time of arguments. Accordingly, my findings on this issue are
in the negative and against the defendants.”

9. Even before this Court, though strenuous efforts has been made by learned Senior Counsel to contend that it was for the plaintiff/respondent to prove the encroachment, particularly, when he had made specific averments to that effect. But, I find that the said contention has virtually nothing to do with the findings recorded on issues No.4 and 5.

10. As regards the encroachment, it would be noticed that the suit land was demarcated by PW-2 Chain Singh on 25.10.2007 and after conducting the demarcation, he prepared his report Ext.PW-2/B. This report was submitted on the basis of the application Ext. PW-2/A and importantly, the said report has attained finality and was not assailed. In the demarcation so conducted the land measuring 0-01-16 HM was found in wrongful possession of the appellants. Importantly, it is mentioned in the report that the defendants/appellants were satisfied with the demarcation, but had sought 15 day’s time for effecting a compromise. This is clearly borne out from the note appended with the demarcation report as also in the statement of defendant/appellant Bishamber Singh recorded at the time of demarcation. Once, there is no objection to the demarcation report, the same has concededly been accepted. Thus, I see no illegality much less perversity in the concurrent findings regarding the defendants being encroacher as recorded by the learned trial Court. Substantial question of law No.2:

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11. It is more than settled that the pleas of estoppel, acquiescence etc. have to be specifically pleaded and proved. It would be noticed that no specific plea to this effect has been raised by the appellants/defendants before the trial Court nor has any such plea been taken even before the first Appellate Court and thus the appellants are precluded from raising this plea for the first time in the instant appeal.

12. As regards equity, it is more than settled that a trespasser or encroacher has no equity in his favour and even the principles of estoppel by conduct or principle of standby or principle of waiver or acquiescence is not applicable in such cases. Equity cannot be extended to a party who has committed deliberate acts and such acts are not bona fide either as encroacher or as a mere trespasser. Equity principle cannot be stretched too far and at any rate cannot be made applicable to the facts of the present case. Both the substantial questions of law are answered accordingly.

13. There is no impropriety, illegality or irregularity much less perversity in the findings recorded by the learned Courts below and the same are based on proper appreciation of the pleadings as also the evidence and the law on the subject.

Having said so, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. The pending application(s) if any, stands disposed of.

1st March, 2017.

( Tarlok Singh Chauhan )

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