Research › Search › Judgment

Andhra High Court · body

2002 DIGILAW 497 (AP)

Syed Ale Mossa Raza v. Razia Begum

2002-04-03

L.NARASIMHA REDDY

body2002
L. NARASIMHA REDDY, J. ( 1 ) THE unsuccessful plaintiffs in O. S. No. 164/76 are the appellants in the appeal. During the pendency of the appeal, some of the plaintiffs as well as defendants in the suit died and their legal representatives are brought on record. For the sake of convenience, the parties are referred to as the plaintiff and defendants. ( 2 ) BRIEFLY stated, the facts are as under : the father of plaintiffs, late Syed Shah abdul Khader, was the pattedar and landlord of land in S. No. 129/55 (old), New Survey no. 165, situated at Kancha Tattikhana sivar, village Shaikpet, Hyderabad Urban taluq, admeasuring Ac. 3-65 guntas. The patta was transferred by Sarfekhas Mubarak on 25th Azur, 1340 Fasli. Syed Shah Abdul khader executed a registered settlement deed dated 10th Aban. 1347 Fasli in favour of his wife Fatima Sogra, the mother of the plaintiffs. The said Fatima Sogra has been in continuous and exclusive possession of the same till she died on 24/07/1973. On the death of the Fatima Sogra in 1973, the property devolved upon the plaintiffs who are her children. ( 3 ) THE 1st defendant occupied an extent of 2180 sq. yards out of Ac. 3-26 grants in the year 1964 and raised construction. Though the plaintiffs asked the 1st defendant not to proceed with the construction and demolish the same, their request was not complied with. Hence, the plaintiffs filed the suit for the relief of recovery of possession of the suit land. The suit was originally filed against the 1st defendant alone. ( 4 ) THE 1st defendant filed a written statement denying the contentions of the plaintiffs. The patta in favour of the father of the plaintiffs and the settlement deed in favour of their mother are denied for lack of knowledge. According to the 1st defendant, the suit land originally belonging to late Dr. Jaffer Hussain. He transferred the same to one Sajid Hasan through registered sale deed dated 20-1-1950. Sajid Hasan, in turn, sold the same to the 1st defendant through sale deed dated 2-7-1963. She claimed to be the bona fide purchaser. She also claims peaceful and uninterrupted possession ever since the date of purchase. It was further pleaded that she got issued a public notice before purchasing the property and since there were no objections she purchased the same for a consideration of Rs. She claimed to be the bona fide purchaser. She also claims peaceful and uninterrupted possession ever since the date of purchase. It was further pleaded that she got issued a public notice before purchasing the property and since there were no objections she purchased the same for a consideration of Rs. 6,000. 00. She also claimed that after purchase of the suit land, she started construction duly obtaining permission from the Municipality. She also raised loans from the Co-operative housing Society. ( 5 ) IN addition to denying the contents of the plaint, the 1st defendant has also taken a further plea that she transferred the suit schedule property in favour of her brother- in-law Lateeful Hasan Burney, through document dated 20-6-1973. According to her, the suit land was in S. No. 129/64 and not part of S. No. 129/55 (old ). Alternatively, it was also pleaded that even it is to be held that the suit land is in S. No. 129/55, she had perfected her title by adverse possession. ( 6 ) IN view of the averments in the written statement by the 1st defendant, the plaintiffs impleaded the said Lateeful Hasan burney as the 2nd defendant. ( 7 ) THE 2nd defendant filed a separate written statement. He almost reiterated the contentions of the 1st defendant. He has taken an additional plea that even if for any reason the suit against the 1 st defendant is to be found within time, the suit is hopelessly barred against him. According to the 2nd defendant, because he was impleaded only in the year 1982, the limitation should start against him from that date only. ( 8 ) ON the basis of the above pleadings, the trial Court framed the following issues:" 1. Whether the plaintiff is entitled to the possession of the land ? 2. Whether the defendant was in possession of the suit land under valid registered sale deed dated 20-6-1973 ? 3. Whether the plaintiff is entitled to the charges prayed for. If so, to what amount ? 4. Whether the suit is bad for non-join- der of Hasan Burney ? 5. Whether the claim of the plaintiff is barred by limitation ? 6. Whether the defendant perfected her title by adverse possession ? 7. To what relief ? the plaintiffs examined PWs. 1 and 2 and marked Exs. Al to A6. The defendants examined D. Ws. 4. Whether the suit is bad for non-join- der of Hasan Burney ? 5. Whether the claim of the plaintiff is barred by limitation ? 6. Whether the defendant perfected her title by adverse possession ? 7. To what relief ? the plaintiffs examined PWs. 1 and 2 and marked Exs. Al to A6. The defendants examined D. Ws. 1 to 3 and marked Exs. Bl to b20. The trial Court appointed the Surveyor commissioner and he filed Exs. C l and C2, which are report and plan filed by him. On appreciation of oral and documentary evidence, the trial Court dismissed the suit through its Judgment dated 19-9-1985. Hence this appeal. ( 9 ) SRI Vilas V. Afzulpurkar, learned counsel for the plaintiffs, submits that the plaintiffs have clear and valid title in respect of the suit land, which is evident from the various documents filed by them. Once it is evident from the pleadings as well as the evidence that the defendants were claiming right only in respect of the land in S. No. 129/64, but the house is constructed on s. No. 129/55, which belongs to the plaintiffs, the suit for possession ought to have been decreed. He further submits that the plea of adverse possession raised by the defendants is not at all maintainable either on facts or in law. ( 10 ) SRI R. Venugopal Reddy, learned Senior Counsel for the 2nd defendant, on the other hand, submits that the plaintiffs have failed to establish their title and the suit land is different from the one under the possession of the defendants. It is his contention that the 1st defendant has absolute title over the suit land, which she purchased under a registered sale deed in the year 1963. The suit, which is filed in the year 1976, is barred by limitation and the findings of the trial Court do not call for any interference. ( 11 ) SRI C. Balagopal. appeared for the 1st defendant. He has adopted the arguments of the learned Senior Counsel and also made certain independent submissions. ( 12 ) THE Court felt that certain legal aspects needed to be clarified. In that view of the matter, Sri V. L. N. G. K. Murthy, Advocate, was requested to assist the Court as Amicus curiae. Sri Murthy obliged the request of the Court and assisted in a dispassionate and effective manner. ( 12 ) THE Court felt that certain legal aspects needed to be clarified. In that view of the matter, Sri V. L. N. G. K. Murthy, Advocate, was requested to assist the Court as Amicus curiae. Sri Murthy obliged the request of the Court and assisted in a dispassionate and effective manner. ( 13 ) IN view of the contentions of the respective counsel, the questions that arise for consideration in this appeal are : (a) Whether the suit land is in S. No. 129/ 55 as claimed by the plaintiffs or in S. No. 129/64 as claimed by the defendants ? (b) Whether the defendants have perfected their title in respect of the suit land by adverse possession ? (c) What is the relief that the plaintiffs are entitled to ? the plaintiffs claimed that the suit land is in S. No. 129/55. According to them, the property was transferred to their father under Ex. Al, which is a patta certificate issued by the sarfekhas. This document is dated 25th Azur 1340 Fasli, which roughly corresponds to 1930. They also pleaded that their father executed a settlement deed dated 10th Abban 1357 Fasli, setting the property in favour of their mother. Ex. A2 is the certified copy of the settlement deed. Ex. A3 is khasra Pahani (1954-55) in respect of Sy. No. 129/55 admeasuring Ac. 3-26 guntas. The name of Syed Shah Abdul Khadir, the father of the plaintiff is noted in Column Nos. 13 and 18, relating to the possession. Ex. A4 is the certified copy of the Setwar, wherein the father of the plaintiff is shown as the owner of the land. Ex. A5 (1349 Fasli) is the certified copy of Vasul Baqui for the said land. The validity or veracity of these documents has not been seriously put in challenge by the defendants. By the date of suit, Ex. Al was more than 30 years old and it is a public document. The remaining documents are also fairly old and nothing is alleged or pleaded to doubt their veracity. In the cross-examination of PW-1, nothing substantial could be elicited to doubt the correctness of these documents. In fact the claim of the defendants has been that the land is in S. No. 129/64 and not S. No. 129/55. The remaining documents are also fairly old and nothing is alleged or pleaded to doubt their veracity. In the cross-examination of PW-1, nothing substantial could be elicited to doubt the correctness of these documents. In fact the claim of the defendants has been that the land is in S. No. 129/64 and not S. No. 129/55. The defendants also did not put forward any claim in respect of the land In S. No. 129/55. It is for this reason that the question as to whether the suit land is in S. No. 129/55 or S. No. 129/64 becomes significant. ( 14 ) THE trial Court through its order in la. No. 549/83, appointed PW-2, the Deputy inspector of Survey and Land Records, hyderabad, as the Commissioner, to measure and localise the suit land. He submitted his report (Ex. C l) as well as the plan (Ex. C2 ). In his chief-examination, he stated that the measurements of the suit land relate to s. No. 129/55 and corresponds to new S. No. 165. According to him, since the area became part of the city, town survey was conducted in 1964 and the suit land corresponds to T. S. No. 57. In the cross-examination, it was elicited through him that old plans and tippons for the village shaikpet are not available and that he surveyed without the help of old records. PW-2, however, stated that the land can be correlated on the basis of the town survey. During his cross-examination, he stated that S. No. 129/55 corresponds to the town survey numbers and the area is covered by construction. ( 15 ) PW-1, categorically stated in his chief examination that the land is in S. No. 129/55. It is not even suggested by the defendants to pw-1 that the suit land is in Sy. No. 129/64. ( 16 ) THE 1st defendant examined herself as DW-2. She stated that the property purchased by her under Ex. Bl was in S. No. 129/64 and that she did not see any document except the sale deed of her vendor, marked as Ex. B6. She has also stated that she does not know the entire boundary of s. No. 129/64. It was suggested to her that the suit land is part of S. No. 129/55. ( 17 ) THE 2nd defendant examined himself as DW-1. B6. She has also stated that she does not know the entire boundary of s. No. 129/64. It was suggested to her that the suit land is part of S. No. 129/55. ( 17 ) THE 2nd defendant examined himself as DW-1. In his chief examination, DW-1 stated that the land is in S. No. 129/64and not in S. No. 129/55 as claimed by the plaintiffs. He has also stated that the Patwari of the village assured D-l at the time of purchase by her that the land purchased by her is part S. No. 129/64. It was elicited through him in the cross-examination that he did not verify any revenue records before the purchase of land. He has also stated that he did not see the plan of the entire S. No. 129/64, which is Ac. 7-26 gts. He deposed that he does not know the boundaries of s. No. 129/64. The relevant portion of the evidence is as under :"i did not verify the revenue records viz. the Pahani patra, Khasra pahani and chofasla at the time of purchase, I have not asked the vendor to produce the above documents for my perusal. I did not see the plan of entire S. No. 129/64, the total S. No. 129/ 64 is 7 acres 26 guntas. On northern side of the S. No. 129/64 the suit plot located. Again says, I cannot say unless I verify. I do not know the boundaries of S. No. 129/64. I cannot say from which point to other point s. No. 129/64 starts and ends. "he has also admitted that the public notice calling for objections was issued in respect of land in S. No. 129/64. It was suggested to him that the suit land is part of S. No. 129/55 and the sale deed Ex. Bl under which the 1st defendant purchased the property relates to land in S. No. 129/64. DW-1 categorically stated that he is not concerned with S. No. 129/55. ( 18 ) AS observed earlier, the total extent of land in S. No. 129/55 is Ac. 3-26 guntas. The suit claim is as regards 2180 sq. yards. One important aspect of the matter is that part of S. No. 129/55 was occupied by one sardar Prahlad Singh. This fact was elicited from PW-1 by the defendants themselves in the cross-examination. The plaintiffs filed os. 3-26 guntas. The suit claim is as regards 2180 sq. yards. One important aspect of the matter is that part of S. No. 129/55 was occupied by one sardar Prahlad Singh. This fact was elicited from PW-1 by the defendants themselves in the cross-examination. The plaintiffs filed os. No. 331/80 (old 54/78) in the Court of the Additional Chief Judge, City Civil Courts, hyderabad, against the said Prahlad Singh, to recover possession. The suit was decreed by the trial Court on 15-1-1983. Mr. Prahlad singh filed CCCA No. 70/1983. A learned single Judge of this Court dismissed the ccca through judgment dated 27-2-1997 reported in Sardar Prahlad Singh v. Syed ali Musa Raza ( 1997 (3) ALD 741 ). It is stated a LPA is pending against the same. It was found by the trial Court as well as this Court in the said proceedings that the land occupied by Mr. Prahlad Singh was part of s. No. 129/55. ( 19 ) THE suit land is bounded by road on east, North and South. While it is the case of the plaintiffs that the Western boundary is their land, it is the case of the defendants that on the Western side also, there is road. It is the case of the defendants that the total extent of land in S. No. 129/64 is Ac. 7- 26 guntas. The proximity or otherwise of the house of Prahlad Singh (which is found to be in S. No. 129/55) to the suit land certainly be a factor to help the Court in arriving at a conclusion as to whether the suit land is in S. No. 129/55 or S. No. 129/64. It is in this context, that this Court, with the consent of both the parties, appointed an Advocate Commissioner through order dated 5-2-2002 to ascertain the location of the suit land as well as the house of Sardar Prahlad Singh, prepare a combined sketch showing both the properties and submit his report. He was also directed to take the assistance of the Surveyor, if necessary. ( 20 ) THE Advocate Commissioner conducted the inspection on 9-2-2002. He took the assistance of a Surveyor. After taking the measurements, he submitted his report as well as the sketch showing that between the suit land and the house of Prahlad Singh, there are structures, lane, etc. ( 20 ) THE Advocate Commissioner conducted the inspection on 9-2-2002. He took the assistance of a Surveyor. After taking the measurements, he submitted his report as well as the sketch showing that between the suit land and the house of Prahlad Singh, there are structures, lane, etc. and the distance between the suit land and the house of Prahlad Singh is 141 feet. It means that the suit land and the house of Prahlad Singh is separated by a piece of land of width of 141 feet (ignoring minor deviations as to shape) . It is also relevant to note that the dimension of the suit land from East to West is 194 feet. The fact that the house of Prahlad singh is in S. No. 129/55 was not seriously in dispute. While the suit land is bounded by three roads on North, South and East and within a distance of about 141 feet from the Western boundary, the house of Prahlad singh is there, it is absolutely impossible that the suit land is part of S. No. 129/64, which admittedly comprises of Ac. 7-26 guntas. The various aspects discussed above would clearly establish that the suit land is part of S. No. 129/55 and not S. No. 129/ 64. The question is accordingly answered in favour of the plaintiffs. ( 21 ) IT is the plea of the learned counsel for the defendants that the plaintiffs have failed to establish the title and they are not entitled to seek recovery of possession. Alternative they submitted that even if it is to be assumed that the plaintiffs have the title to the suit land, the defendants have perfected their title by adverse possession. Since it has already been observed that the various documents filed by the plaintiffs established their title to the suit land, the plea of adverse possession raised by the defendants needs to be examined. ( 22 ) IT is not disputed by the learned counsel for the defendants that on the question of adverse possession, the burden lies upon the defendants. Therefore, it has to be seen whether the defendants have discharged the same. ( 23 ) BEFORE the purchase of the property by the 1st defendant, through Ex. Bl dated 22-7-1963, the property was vacant. Under art. 65 of the Limitation Act. Therefore, it has to be seen whether the defendants have discharged the same. ( 23 ) BEFORE the purchase of the property by the 1st defendant, through Ex. Bl dated 22-7-1963, the property was vacant. Under art. 65 of the Limitation Act. 1963 where the possession of the suit land is sought to be recovered on the basis of title, the limitation prescribed is twelve years. The starting point for computing the period of limitation is the date from which the possession of the defendants becomes adverse to the plaintiff. The parameters of adjudication on the plea of adverse possession have undergone substantial and radical changes with the enactment of the Limitation Act, 1963. Under the Limitation Act, 1908, it was obligatory on the part of the plaintiff to show that he was in possession of the suit property within 12 years anterior to the date of filing of the suit. Under 1963 Act, the defendant who takes the plea of adverse possession has to establish that the possession over the suit property, which was adverse to the plaintiff, commenced 12 years anterior to the filing of the suit. Therefore, what the defendants have to plead and establish before the Court is not mere possession alone. Such possession should be adverse to the plaintiffs with all its ingredients viz. , nec vie, nec clan and nec precario. it is only on establishing the possession with these characteristics, spared over a period exceeding 12 years that the defendants can succeed in non-suiting the plaintiff, ( 24 ) BEFORE undertaking the discussion of evidence on record touching on the question of adverse possession, one aspect of the matter needs to be dealt with. The learned counsel for the defendants submits that the suit land was purchased by the 1st defendant on 27-7-1963, the 1st defendant commenced construction after the purchase of the property, the suit was filed On 5-12-1975, and therefore, the suit was barred by limitation. They have also stated that even if for any reason the possession of the 1st defendant, adverse to the plaintiff, is found to be short of 12 years by the date of filing of the suit, the fact that the 2nd defendant was impleaded only on 4-11-1982 clearly render the suit barred by limitation. They have also stated that even if for any reason the possession of the 1st defendant, adverse to the plaintiff, is found to be short of 12 years by the date of filing of the suit, the fact that the 2nd defendant was impleaded only on 4-11-1982 clearly render the suit barred by limitation. According to them, the possession of the 1st defendant has to be tacked to that of the 2nd defendant and since the suit against the 2nd defendant can be said to have been filed only on the date on which he was impleaded i. e. 4-11-1982, the plea of adverse possession has to be accepted. ( 25 ) ARTICLE 65 of the Limitation Act, 1963 refers to the possession of the "defendant" as starting point of limitation, when it becomes adverse to the plaintiff. The word "defendant" is defined under Section 2{e) of that act as under : "defendant" includes (i) any person from or through whom a defendant derives his liability to be sued; (ii) any person whose estate is represented by the defendant as executor, administrator or other representative. " the 1st defendant stated in her written statement that she has transferred the suit land to the 2nd defendant as long back as on 20-6-1973. Ex. B8 is the document under which the 1st defendant claims to have transferred the suit land to the 2nd defendant. The plea of the 1st defendant in her written statement is as under :"she had no connection with the suit property whatsoever as stated above as she had already transferred it as long back as on 20-6-1973. "it was in this context that the 2nd defendant was impleaded. The 2nd defendant in his written statement stated as under :"it is further submitted that the 1st defendant was the actual owner of the property and was in possession and enjoyment of it from 22-7-1963 till it was transferred to this defendant, her-brother-in law, on 20- 6-1973, as her nominee, according to the rules of the Housing Society. "ex. B8 is the document under which the 1 st defendant is said to have transferred the property in favour of the 2nd defendant. Ex. B8 is in Urdu. The learned counsel for the defendants made available the translation of the same. The learned counsel for the parties did not dispute the accuracy of the translation. Ex. "ex. B8 is the document under which the 1 st defendant is said to have transferred the property in favour of the 2nd defendant. Ex. B8 is in Urdu. The learned counsel for the defendants made available the translation of the same. The learned counsel for the parties did not dispute the accuracy of the translation. Ex. B8 is a Deed of Redemption of Mortgage from "anjuman Imdade Bahami tameer Amkana, Mallepally II Ltd. (Cooperative House Building Society ). The Deed is executed by one Mohd- Abdul Wahed, secretary of the Society, to the effect that the mortgage is redeemed in favour of the 1st defendant. It does not contain any signature of the 1st defendant or any of her representative. The deed reads as under :"i, Mohammad Abdul Wahed, Son of Mohammed Moosa, Aged 40 years, R/o yaqootpura, Hyderabad, Secretary, Anjuman tameere Amcana Mallepally II Ltd. , No. 4296, Hyderabad, Previous Plot No. 129/64, present H. No. . . . . . . . . . . do hereby write and execute this Deed, to the effect that the Loan no. 1765 of 1963, dated 19th Oct. 1963 hypothecation amount Rs. 20. 000. 00 (Rupees Twenty Thousand Only) of Indian currency, with interest entire amount received from Razia Begum D/o Syed Akbar Hussain by the Anjuman Imdade Bahami Tameer amkana, Mallepally II Ltd. . therefore, as per this document. Plot Survey No. 129/64 admeasuring 2180 sq. yards and the house constructed No. 8-2-319 situated at Road no. 14 Banjara Hills. Hyderabad, as per plan enclosed is redeemed in favour of Razia begum D/o Syed Akbar Hussain which was hypothecated. Now since Razia Begum has transferred her house as above, in favour of his relative -Mr. Lateeful Hasan Barney under Clause 29 Clause (1) Regulations of this anjuman old or under clause (10) of the rules of the Anjuman New amended. Therefore, Mr. Lateeful Hasan son of Faizul Hasan is the sole and absolute owner of the said plot and house. Therefore, the Document dated 19th Oct. 1963 hereby revoked. "from a reading of this document, it is evident that this document by itself does not transfer or confer any title or interest in favour of the 2nd defendant. No other deed or transaction is referred to in support of the plea that the 2nd defendant is the transferee from the 1st defendant. 1963 hereby revoked. "from a reading of this document, it is evident that this document by itself does not transfer or confer any title or interest in favour of the 2nd defendant. No other deed or transaction is referred to in support of the plea that the 2nd defendant is the transferee from the 1st defendant. In that view of the matter, it cannot be said that the 2nd defendant answers the description of the "defendant" occurring in Art. 65 and as defined in Section 2 (e) of the Limitation Act, 1963. ( 26 ) THE learned counsel for the defendants relied upon the judgment of the Patna high Court in Jatu Das v. Mt. Sulochana mundian, AIR 1957 Patna 37. In that case, there was no dispute as to the conveyance or passing of the property from one defend- ant to the other and, as such, the possession by one enured to the benefit of the other and the principle of tacking was applied. Another decision relied upon by them was the one in Samar Roy v. Dinanath, AIR 1953 assam 19. The Assam High Court held as under :"in view of the definition of the word "defendant" in S. 2 (4), the adverse possession of the defendant in the suit can be tacked on to the adverse possession of the person from or through whom he derives his liability to be sued. "in the case on hand, the 2nd defendant did not derive any title from the 1st defendant. The 1st defendant continued to be the legal owner. The property continues to be in the name of the 1st defendant. In the absence of any valid and legal conveyance, the 2nd defendant cannot be said to have derived any title from the 1st defendant. ( 27 ) IF tacking is permitted in respect of the person who does not derive any legal title from the person in whose hands the adverse possession commenced, any and every suit for recovery of possession based on title can be defeated by pleading that it is not the defendant in the suit and somebody else who is in possession. By creating such a chain of persons claiming to be in possession, it can ultimately be pleaded that the suit is barred by limitation. By creating such a chain of persons claiming to be in possession, it can ultimately be pleaded that the suit is barred by limitation. It is in this context that the Hon ble Supreme Court in gurbinder Singh v. Lal Singh, AIR 1965 SC 1553 held as under : therefore, where a defendant in possession of property is sued by a. person who has title to it but is out of possession what he has to show in defence is that he or any one through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession. " a person who does not derive title from the defendant impleaded in a suit cannot have the benefit of the duration of adverse possession of that defendant. The plea of adverse possession, if proved, will defeat the remedy of a lawful owner. Principle of tacking would supply a span to the defendant, but for which he cannot cross the bridge of 12 years. In a way it provides a missing link. Whether it is the span of a bridge or link of a chain, the parts which are sought to be added should be as strong as the ones to which they are sought to be added. The 2nd defendant is bound to have derived no title from the 1st defendant. If the 1st defendant fell short of any length of time to constitute adverse possession of 12 years, the 2nd defendant cannot supply or fill the same. Therefore, the plea of the defendants deserves to be rejected. ( 28 ) NOW it remains to be seen as to whether the defendants have pleaded and proved their plea of adverse possession. It is a settled principle of law that plea of adverse possession has to be specifically pleaded and established on the basis of acceptable evidence. Therefore, the plea of the defendants deserves to be rejected. ( 28 ) NOW it remains to be seen as to whether the defendants have pleaded and proved their plea of adverse possession. It is a settled principle of law that plea of adverse possession has to be specifically pleaded and established on the basis of acceptable evidence. The 1st defendant in her written statement pleaded as under :"it submitted in the alternative, that even if the suit land was a part of S. No. 129/55 (old) and 165 (new), the predecessors-in-title to and this defendant were in possession and uninterrupted possession to the exclusion of one and all in their own right and this perfected their title by prescription and the claim of the plaintiffs is barred by limitation. "the 2nd defendant in his written statement pleaded as under :"the 1st defendant and her vendor had perfected their titles and were full owners. Even tagging this defendants possession from 20/06/1973 to 4-11-1982 when impleaded, with that on the 1st defendant the suit is time-barred. "so far as the acts of possession are concerned, the 1st defendant pleaded that after purchase, she started digging the foundation, undertook the construction up to basement level, obtained permission from the Hyderabad Municipal Corporation and construction was completed thereafter. In the written statement, neither the date of commencement of the construction nor any other particulars are furnished. The 2nd defendant in his written statement stated to the same effect. Ex. B4 is the permission accorded by the Municipal Corporation of hyderabad to the 1st defendant. The application by permission was made on 10-1- 1964. The permission was accorded through ex. B4, which is dated 20-2-1964, Ex. B5 is the plan. ( 29 ) THE defendants made an attempt to show that the construction commenced even before the permission under Ex. B4 was accorded. The 1st defendant, in her evidence as DW-2, stated as under" 1 obtained permission for construction of house from MCH. After Nov. 1963, my brother started construction over the plot. "this statement of the 1st defendant clearly establishes that it is only her brother who started the construction and she has no knowledge about it. The brother of DW-2 was not examined. After Nov. 1963, my brother started construction over the plot. "this statement of the 1st defendant clearly establishes that it is only her brother who started the construction and she has no knowledge about it. The brother of DW-2 was not examined. The 2nd defendant, who is her brother-in-law, in his evidence as dw- 1, stated :"after the purchase of the site, the disputed property, D-l started digging foundation and constructed basement within a week days. The basement was completed within a month from the date of registration. "this show that the 2nd defendant has gone farther than the 1st defendant. When the 1st defendant in categorical terms stated that it was after Nov. 1963 that her brother commenced construction, the 2nd defendant says that the 1st defendant commenced construction within one week from the date of purchase, which is 22-7-1963. ( 30 ) THE open acts of possession that too treating the property to be one in S. No. 194/ 64 can be said to have been commenced in feb. 1964. The evidence on record does not show that the 1st defendant was aware that the property on which she was constructing was in S. No. 129/55. It is only then that her acts of possession can be said to be adverse to that of the plaintiffs. Even if such acts to be taken as adverse to the plaintiff, it needs to be seen that the suit was filed in dec. 1975 i. e. within 12 years from the date of commencement of construction. There fore, it can be taken that the 1st defendant commenced the construction in Feb. 1964. No other material is placed before the Court to show that the acts of the defendants constituted adverse possession spread over a period exceeding 12 years. The defendants have failed to establish their plea as to adverse possession. ( 31 ) COMING to the question of relief, the court as confronted with a situation where the plaintiffs have their title to the suit land, but the defendants have made construction on the same in a bona fide belief that they had a valid title under the document Ex. B1. Decree for delivery of vacant possession after removal of the residential house which was in existence since last so many years would be no doubt cause hardship to the defendants. B1. Decree for delivery of vacant possession after removal of the residential house which was in existence since last so many years would be no doubt cause hardship to the defendants. At the same time, the plaintiffs cannot be denied the relief on that count. The Specific Relief Act empowers the Court to grant reliefs in addition to or in the place of the relief of specific performance or injunction. Such a relief can be moulded in the form of adequate monetary compensation. However, the relief under Section 5 of the Specific Relief Act has A total different characteristic. While the relief, of. specific performance and injunction are equitable in nature, the relief of recovery of possession under Section 5 does not squarely fall into that category. That appears to be the reason why the alternative modes of reliefs as under Section 22 (specific performance) and Section 40 (injunctions) are not provided for in respect of relief of possession. It is in this context that the learned Amicus Curiae and the learned counsel for the plaintiffs and the defendants were asked to make submissions. ( 32 ) SRI V. L. N. G. K. Murthy, the learned advocate who assisted the Court as Amicus curiae submits that where the defendant is found to have made constructions on a land tn respect of which the plaintiff has title, three situations may arise, viz. (a) The defendant so making the construction may be treated as trespasser, if hjs possession over the property is short of statutory period and he has no semblance of title over it; in such an event, the plaintiff is entitled for recovery of possession under Section 5 of the Specific Relief Act; (b) The defendant acquires the property as a transferee from a 3rd person, makes the construction, believing that he has title over it, but it emerges that the plaintiff has a better title over the same. In this type of cases. Section 51 of the transfer of Properly Act steps in and the defendant will be entitled to require the plaintiff to elect to pay the value of the construction or to sell the land independent of the value of the, construction: and (c) The plaintiff by his acts and omission acquiesces in the acts of constructions or improvements by the defendant and permits the defendant to undertake the same over the plaintiffs property. In such cases, the concept of estoppel by conduct under Section 115 of the Evidence act has to be invoked and the plaintiff has to be non-suited. He has also referred to certain authorities in the matter. ( 33 ) THE learned counsel for the plaintiffs Sri Vilas V. Afzulpurkar does not seriously dispute the analysis presented by the amicus Curiae. It is, however, his case that the defendants in this case are to be treated as trespassers. ( 34 ) WHILE Sri Balagopal, the learned counsel for the 1st defendant submits that section 51 of the Transfer of Property Act {hereinafter referred to as the TP Act ) gets attracted to the facts and circumstances of the case, Sri Venugopal Reddy, the learned senior Counsel for the 2nd defendant, submits that Section 51 of the TP Act has no application. ( 35 ) THE three situations referred to above appear to be the result of objective analysis of the relevant provisions. Among them, the 1st one does not get attracted to the facts of the case. The reason is that the defendants made the construction on the suit land bona fide believing it to be the one in S. No. 129/64. It ultimately emerged that it is in s. No. 129/55. Therefore, the defendants cannot be treated as trespassers. ( 36 ) NOW it needs to be seen as to whether the provisions of Section 51 of the T. P. Act or Section 115 of the Evidence Act are to be applied to the facts of this case. ( 37 ) SECTION 51 of the T. P. Act reads as under:"51. Improvement made by bona fide holders under defective titles, - When the transferee of Immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted there-from by any person having a better title, the transferee has 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 his interest in the property to the transferee at the then market value thereof irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them. "the ingredients for application of this section are that the defendant has purchased or otherwise acquired the property from a source other than the plaintiff and answers the description of "transferee," he faces eviction from the plaintiff who is found to have "better title to the property" and the defendant made improvements or construction on the said property under a bona fide belief that he has title to the property. Once these facts are established, the defendants get right to require the plaintiff to elect either to have the value of the construction or improvement fixed and paid or secured; or to offer to sell the land to the defendants, at the then market value, irrespective of the value of construction. There is some difference of opinion as to the nature of right under S. 51. While some treated it as equitable, others branded as legal. Yet others found it to be a combination of both. The difference, however, appears to be rather doctrinal, than practical. ( 38 ) SECTION 51 of the T. P. Act operates only as long as it is evident that the plaintiff did not do anything to encourage or give an impression to the defendant that he (plaintiff) has no objection for the improvement or construction by the defendant. Once such a representation, to a standardised degree emanates from the plaintiff, the provisions of this section cease to operate and S. 115 of the Evidence Act steps in wherein the plaintiff would be estopped. ( 39 ) TO invoke the plea of estoppel, it is not necessary that the defendant should have any title, defective or otherwise. If it is established that the plaintiff represented to the defendant that the latter can treat the property as his own or use it as of right and the defendant acting upon such representation takes steps or changes his position, the plaintiff cannot be permitted to turn round at a later stage. If it is established that the plaintiff represented to the defendant that the latter can treat the property as his own or use it as of right and the defendant acting upon such representation takes steps or changes his position, the plaintiff cannot be permitted to turn round at a later stage. The representation that emanates from the plaintiff can be express, such as, when he permits or encourages the defendant to use and occupy the property. The representation can also be by necessary implication, resulting from mostly omissions, and rarely acts. Maintenance of silence by the plaintiff when he was under obligation and necessity to speak is one circumstance, which may give rise to such an implication. ( 40 ) THE main distinguishing feature of these two concepts, however, is that to invoke the concept of estoppel, the defendant has to specifically plead each and every act or omission, as the case may be, that constitutes the representation from the plaintiff and the consequential acts by the defendant; and prove them to the satisfaction of the Court. It is then, and only then, that the principle of estoppel can be applied by the Court. Once the defendant establishes the plea of estoppel, the Court recognises the acquiescence on the part of the plaintiff in the situation brought about by the defendant and pins him (plaintiff) to that situation and does not permit him to retreat or turn round. ( 41 ) INVOCATION of S. 51 of thet. P. Act, on the other hand, does not depend on the pleadings and proof pointing out to the principle underlying in it. Once the facts necessary for invocation of the same emerge in a case, the Court can invoke it. Section 51 of the T. P. Act, in a way, operates in default, in that, when the defendant who is found to have made improvements on the property is neither a trespasser, nor has he pleaded and established estoppel. ( 42 ) IN the present case, the 1st defendant purchased the property under Ex. Bl. She was under the bona fide impression that what is purchased under Ex. Bl Is the suit land. Accordingly, she made construction upon it. From the evidence on record, it emerged that the plaintiff has better title to the suit land. ( 42 ) IN the present case, the 1st defendant purchased the property under Ex. Bl. She was under the bona fide impression that what is purchased under Ex. Bl Is the suit land. Accordingly, she made construction upon it. From the evidence on record, it emerged that the plaintiff has better title to the suit land. Therefore, the 1st defendant answers the description of "a transferee" and the plaintiff, the description of "a person having better title," occurring in S. 51. Admittedly the suit is filed for eviction and it is an undisputed fact that the 1st defendant made construction on the suit land. The application of Section 51 would have been avoided by the defendants if they had pleaded the necessary ingredients of estoppel. They have neither pleaded nor established the necessary ingredients of estoppel. Therefore, S. 51 of the T. P. Act gets squarely attracted to the facts of the case and it is a fit case for invoking the principle contained therein. ( 43 ) ACCORDINGLY, the defendants shall have a right to require the plaintiffs to elect to have the value of the improvements estimated, then paid or secured to them; or to require the plaintiffs to sell their interest in the property to the defendants. The choice to choose either of the two will be that of the plaintiff. Section 51 itself stipulates that the amount to be paid or secured in respect of the improvements shall be the estimated value at the time of eviction. As regards the value of the property at which the plaintiff can offer to sell as an alternative, the expression used in the section is "the then market value. " A bare reading of the same would give rise to a doubt as to whether "the then market value" refers to the date on which the defendants acquired the property or the date on which the eviction is ordered. In Ramaji v. Manohar, AIR 1961 Bom 169 , the Bombay High Court held that the value should be as on the date of eviction. To the. same effect is the decision of the Calcutta high Court in Fink v. Secretary of State (1907)ILR 34 Cal599. In Ramaji v. Manohar, AIR 1961 Bom 169 , the Bombay High Court held that the value should be as on the date of eviction. To the. same effect is the decision of the Calcutta high Court in Fink v. Secretary of State (1907)ILR 34 Cal599. ( 44 ) WHAT emerges from the above discussion is that: (a) The suit land is in S. No. 129/55; (b) The defendants failed to establish their title by adverse possession; and (c) The defendants shall have a right to invoke the provisions of S. 51 of the T. P. Act. ( 45 ) IN the result, the decree of the trial court is set aside. The appeal is allowed and the suit shall stands decreed to the following effect : (i) There shall be a decree for possession as prayed for by the plaintiff; (ii) In the event of the plaintiffs taking steps to evict the defendants, the defendants shall have the right to require the plaintiff to (a) have the value of the construction made by them on the suit land estimated and paid or secured to the defendants; or (b) to sell the interest of the plaintiffs in the property to the defendants at the market value as on the date of eviction, excluding the value of the construction made on the suit land. (c) The value of the construction or the land, as the case may be, shall be decided by the executing Court on the basis of the evidence adduced by the parties. There shall be no order as to costs.