An encroacher cannot be treated as a ‘transferee’, and therefore cannot claim a 'right to require' under Section 51 of the Transfer of Property (TP) Act of 1882, the Supreme Court has ruled. Dismissing appeals in the case of Baini Prasad through LRs vs. Durga Devi, the division bench of Justices BR Gavai and CT Ravikumar held that Section 51 of the TP Act comes to the aid of transferees of immovable property who make any improvement to such property, believing in good faith that they are absolutely entitled to the property. The provision lays down that if such transferees are subsequently evicted by any person having a better title, the transferees are entitled to be paid the value of the improvement. In the alternative, the person causing the eviction can also sell to such transferee the part of the property in which the transferee has such interest at the then prevailing market value, the Court said.
“Where the owner of the land filed suit for recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man’s property against that man’s will,” the Court observed.
The Court was of the view that in order to attract Section 51, the occupant of the land must have held possession under colour of title. Such occupant must have been under the bona fide belief that he had secured good title to the property in question and is the owner of the property. In the light of the concurrent findings, it can only be held that it was after encroaching upon the land in question and ignoring the absence of any title that he made structures thereon at his own risk. Once it is so found, the original appellant cannot be treated as a ‘transferee’ within the meaning of the TP Act and for the purpose of Section 51, TP Act. Therefore, we have no hesitation to hold that the appellants are not entitled to rely on the provision under Section 51, TP Act, the Court said
For full text of the judgment Baini Prasad (D) Thr. LRs vs Durga Devi Civil Appeal No.6182-6183 of 2009