1. This second appeal arises from the decision of the learned Second Additional Subordinate Judge of South Kanara, in Appeal Suit No. 89 of 1957 on his file. That appeal in its turn arose from the decision of the learned Additional District Munsiff, Karkala, in O. S. No. 132 of 1955 on his file, therein the plaintiff-appellant prayed far a decree for possession of the suit property on the allegation that he is the owner of the suit site and that the defendant-respondent has trespassed into the same during his absence and built a house therein; hence he is entitled to a decree forpossession with mesne profits. The defendant contended that he is the owner of the suit property. Alternatively the contended that he built the house in the suit site under bona fide belief that he was the assignee of the land in question and therefore he is entitled to get compensation for the improvements effected by him in the suit site.
2. The trial Court came to the conclusion that the suit site was assigned by the Government to the plaintiff in January 1954; the house therein was built by the plaintiff but unauthorisedly occupied by the defendant, it therefore decreed possession of the suit site along with the building, and mesne profits at the rate of Rs. 6/- per annum; it also allowed some compensation for the improvements effected by the defendant.
3. In appeal, the learned Subordinate Judge agreed with the trial Court that the site in question was assigned to the plaintiff; but it held that the defendant bona fide believing that that the same had been assigned to him had put up a building therein and further had effected other improvements in the suit site. Therefore while retaining the decree for possession, it set aside the decree for mesne profits. Further, it granted to the defendant a sum of Rs. 330/- as the value of improvements effected by him.
4. The decision of the first appellate Court that the plaintiff is not entitled to mesne profits is clearly wrong. That Court having come to the conclusion that the plaintiff is the true owner of the suit site and that the defendant had unauthorisedly occupied the same, should have decreed some mesne profits. But the plaintiff is clearly not entitled to mesne profits at the rate of Rs. 6/- per year as that rate was granted by the trial Court on the basis that the plaintiff had built the house in the suit site, which finding has been set aside by the first appellate Court. The correctness of that finding is not and in fact cannot he challenged in this Court, which means the plaintiff is entitled to get mesne profits only in respect of the site which had been unauthorisedly occupied by the defendant.
The suit site is a small bit of land and is situate in a remote village. From the material before me, it is not possible to determine the mesne profits due. In the very nature of things the mesne profits due cannot be anything but paltry. It will be a mockery of Judicial process if I remand this case for deciding that question. The burden of proving the mesne profits due was on the plaintiff. He has not discharged that burden. Hence I fix a nominal sum of fifty naye paise per year as mesne profits.
5. The more important question in this appeal is whether the defendant is entitled to claim the value of the improvements effected by him.
6. From the facts established, it is seen that both the plaintiff and the defendant had applied to the Government for assignment to each of them a house site in Talapady village in Mangalore Taluk. Government assigned S. No. 343/2 to the defendant and S. No. 343/6 to the plaintiff. Defendant erroneously occupied the plot assigned to the plaintiff and built a house therein. He also effected other improvements in the site in question. In April 1955, the plaintiff filed the present suit for possession on the basis of his title. The surrounding circumstances in this case, as well as the oral evidence adduced by the defendant show that he had entered into the suit site innocently and effected improvements therein under the bona fide belief that that site had been assigned to him.
The question for decision is whether under law he is entitled to any compensation under these circumstances. Compensation is not claimed by him under any customary law. Therefore, all that I have to see is whether he is entitled to compensation under Section 51 of the Transfer of Property Act. Before he can be held to be entitled to any compensation under Section 51, he has to establish two important ingredients. First of all, he must show that He is a transferee of the suit site and secondly he must establish that he had effected improvements in the suit site believing in good faith, that he is absolutely entitled thereto. From the circumstances above set out, there can be no doubt that the defendant was under a wrong impression that the suit site had been allotted to him, and it is under that impression he had effected improvements therein.
In the order of assignment served on the defendant, it is clearly mentioned that S. No. 343/2 had been assigned to him. Hence it is clear that he was highly negligent. Section 3(22) of the General Clauses Act says that 'a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not.' Therefore it has to be held that the defendant had effected improvements in the suit site believing in good faith that he was absolutely entitled to that site.
7. But the difficulty of the defendant does not stop there. He must prove that he is the transferee of the suit site. The suit site was at no time assigned to him. What was assigned to him is S. No. 343/2. Therefore he cannot be held to be a transferee under Section 51 of the T. P. Act.
8. Sri Raghavendra Rao, the learned Counsel for the defendant contended that the word 'transferee' should be given a wide meaning and that word should be held to include persons who erroneously thought that they are transferees. In this connection he cited the decision of the Madras High Court in Natesa Thevan v. District Board of Tanjore : AIR1926Mad314 . The defendant therein had purchased a plot of land in public auction when the District Board was selling certain plots of land; the District Board delivered to him more lands than purchased by him, the excess being 2 acres and odd; neither party was aware of this mistake; after taking delivery of the property, the defendant effected improvements therein: the District Board was aware of this fact but did not object to the same: sometime later the District Board finding that defendant had in his possession more lands than actually sold, sought possession of the same; the purchaser claimed the value of improvements effected by him.
The Court held that Section 51 applied to the facts of the case, because the defendant was a transferee of the property as a whole and he believed in good faith that he was absolutely entitled to the whole and made the improvements bona fide on the property. It further held that even apart from Section 51 on general principles of equity, his claim could be supported more especially as the District Board knowing that the defendant was making improvements on the land, did nothing to prevent it. Thefacts of that case are clearly distinguishable. Therein the District Board itself put the defendant in possessionof the property in pursuance of the sale effected. Therefore the Court thought that the defendant was a transferee of the entire property delivered.
It is not necessary to consider in this case whether that view is correct in law. Suffice it to say that thatdecision is distinguishable. Further on the facts foundin that case, the Court came to the conclusion that the District Board knowing that the defendant was makingimprovements did nothing to prevent it. In the instant case, there is no evidence to show or at any rate the findings given by the Courts below do not show that the plaintiff was aware of the improvements effected by the defendant at the time they were effected.
9. The decision of the Allahabad High Court in Kalyan Das v. Jan Bibi : AIR1929All12 , cited by Sri Raghavendra Rao does not bear on the point under consideration.
10. In the result, this appeal is allowed in part. The plaintiff will not only have a decree for possession;he will also have a decree for mesne profits at the rateof Re. 0-50nP. per year from the date of the suit tillthe property is delivered to the plaintiff. Though I have held that the defendant is not entitled to any compensationfor the improvements effected, it so happens that the trial Court had made the following decree in favour ofthe defendant:
'And it is hereby further ordered and decreed thatat the time of eviction, the plaintiff do pay to the defendant Rs. 25/- towards costs of plastering the walls and Rs. 6-6-0 in case he wants items 3, 6 and 7 in Ex. C-1,described here below; otherwise the defendant will be entitled to remove items 3, 6 and 7.'
The plaintiff did not appeal against that decree. Therefore, that portion of the trial Court's decree will have to stand. The appeal is allowed to the extent mentionedabove.
11. In the peculiar circumstances of this case, the parties are directed to bear their own costs in this Court.
12. Order accordingly.