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Rev. Father K.C. Alexander of Kuttikandathilaya Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 216 of 1961
Judge
Reported inAIR1966Ker72
ActsLimitation Act, 1908 - Schedule - Articles 36 and 120; ;Transfer of Property Act, 1882 - Sections 51 and 108; Travancore Land Conservancy Act, 1091 - Sections 9
AppellantRev. Father K.C. Alexander of Kuttikandathilaya
RespondentState of Kerala
Appellant Advocate K.P. Abraham,; T.P. Poulose and; Annamma Alexander,
Respondent AdvocateAdv. General
DispositionAppeal dismissed
Cases ReferredSankaranarayana Pillai Janardan Nair v. P. Nanu
Excerpt:
.....property act, 1882 and section 9 of travancore land conservancy act, 1091 - suit for damages for value of improvements lost during eviction - at no time occupation of land by plaintiff was under title or under bona fide claim of title - there can be no equity in favour of mere trespasser - owner of land not required to pay for improvements during currency of trespass - owner also not required to allow trespasser to remove improvements after dispossession of trespasser. - - is well within time. the maxim quic quid planlatur solo solo cedit--whatever is affixed to the soil belongs thereto--applies not merely to buildings but to trees as well. the position of a trespasser--whether he be a mere trespasser or a trespasser under a bona fide claim of title--cannot be better than of a..........of improvements in relation to which the plaintiff, who was treated to be a trespasser, could claim value are restricted to those that fall within the ambit of section 9 of the land conservancy act of 1091. the court below was of the view that trees will not fall within the ambit of the section and it was further held that there was no proof that there were 'crops or other products' at the time of the eviction. the right to the value of the type of improvements mentioned in the section which is in these terms'any person unauthorisedly occupying any land for which he is liable to pay a fine under section 6 and an assessment or prohibitory assessment under section 7, may he summarily evicted by the division peishkar, and any crop or other product raised on the land shall be liable to.....
Judgment:

1. This is an appeal by the plaintiff. The suit was for recovery of two lakhs of Rupees, with interest thereon from the date of suit, from the first defendant in the suit, the Stale of Kerala. Shortly stated, the claim was for damages for the value of improvements said to have been lost to the plaintiff when he was evicted from 160 acres of land, described in the schedule to the plaint, in accordance with the provisions of the Land Conservancy Act, on the 8th of Karkitakom, 1114 M. E. It is now admitted that the land belonged to the State. According to the plaintiff those improvements had been effected by him bona fide on the property and he was entitled to the value thereof. He should have been allowed atleast to remove the improvements. Because no value was given to him for the improvements and because he was not even allowed to remove his improvements, its value as detailed in the plaint has been claimed by way of damages. This was resisted by the State, the first defendant, on several grounds and various issues have been framed. The court below granted a decree to the appellant for Rs. 3,000 which amount was fixed as the value of the building in the property, against the State, and the suit was dismissed in other respects. Regarding the rest of the claim it was held that the categories of improvements in relation to which the plaintiff, who was treated to be a trespasser, could claim value are restricted to those that fall within the ambit of Section 9 of the Land Conservancy Act of 1091. The court below was of the view that trees will not fall within the ambit of the section and it was further held that there was no proof that there were 'crops or other products' at the time of the eviction. The right to the value of the type of improvements mentioned in the section which is in these terms

'Any person unauthorisedly occupying any land for which he is liable to pay a fine under Section 6 and an assessment or prohibitory assessment under Section 7, may he summarily evicted by the Division Peishkar, and any crop or other product raised on the land shall be liable to forfeiture and any building or other structure erected or anything deposited thereon shall also, if not removed by him after such written notice as the Division Peishkar may deem reasonable, be liable to forfeiture. Forfeiture under this Section shall he adjudged by the Division Peishkar and any property so forfeited shall be disposed of as the Division Peishkar may direct.'

can be lost it was held, only when a specific order of forfeiture envisaged by the section had been passed. There being no order of forfeiture in the case the value of the building was awarded to the plaintiff.

2. On the issue relating to the contention that the suit was barred by limitation, the finding was in favour of the plaintiff. There were also a number of other issues framed:

Issue 7. Whether the suit is barred by the judgment and decree in O. S. 156 of 1103V

Issue 8. Whether the suit is barred by Section 18 of the Land Conservancy Act, and

Issue 9. Whether any notice of suit was issued by plaintiff? Whether the suit is not maintainable ?

and the findings on these issues are in favour of the plaintiff. The findings on these issues have become final as they have not been challenged.

Issue No. 5 in the case related to the claim of the appellant against the second defendant. This was found against the plaintiff-appellant and has not been appealed against. This too has therefore become final.

3. Thus the only two questions arising for determination in this appeal are:

(1) whether the plaintiff is entitled to the value of improvements which mainly, if not entirely, are in the nature of trees? and

(2) whether the suit is barred by limitation?

We shall deal with the second of these issues first.

4. It is contended by the learned Advocate General on behalf of the respondent, the State of Kerala, that the suit which has been instituted on the 8th of Thulam 1118 M. E. is barred by limitation. According to him the Article that is applicable is Article 26 of the Travancore Limitation Act 1100. On behalf of the appellant, it is contended that the Article that is applicable is Article 109 of the above mentioned Act. The corresponding Articles in. the Indian Limitation Act 1908 are Articles 36 and 120. These Articles are in these terms.

Description of suit.

Period of limitationTime from which period begins to run

36. For compensation for any maifeasance, misfeasance ornon-feasance independent of contract and not herein specially provided for.

One year.

When the malfeasance, misfeasance or non-feasance take place.........120. Suit for which no period of limitation is providedelse-where in schedule.:

Six years.

When the right-to sue accrues..........

5. The only difference is that under the Travancore Limitation Act of 1100, Article 26 provides for a period of two years whereas under Article 3(5 of the Indian Limitation Act, 1908 the period is one year. This is not material for the suit has been filed beyond the two years provided by Section 26 of the Travancore Limitation Act, 1100.

6. Article 26 deals with suits for compensation for any malfeasance, misfeasance or non-feasance independent of contract and not specially provided for in the schedule to the Act. It gives two years from when the mal-ieasance, misfeasance or non-feasance takes place. It is not disputed that if Article 26 of the Travancore Limitation Act 1100 is the Article that is applicable, then the suit is barred by limitation. But Article 26 applied only to suits for compensation for tortious acts. The suit before us is not for any tortious act of the Government. It is only for compensation for the improvemenls effected by the plaintiff-appellant on the ground that he is entitled to such compensation under the principles of law applicable to such cases. So Article 26 cannot apply. Article 109 gives six years from the time the right to sue accrues. The cause of action for the suit is said to have arisen on the 8th of Karkilakam 1114 M. E. and the suit having been filed on the 8th of Thulam 1118 M. E. is well within time. In fact it is common ground that if Article 109 is the Article that is applicable, the suit is not barred by limitation. We therefore negative the contention put forward on behalf of the State that the suit is barred by limitation.

7. The nest question with which we are concerned relates to the claim for the value of improvements which are substantially in the nature of trees such as rubber trees, cocoanut trees etc. On behalf of the State, it is contended that the appellant is a mere trespasser and that therefore he is not entitled to the value of improvements. It is on this ground and on the ground that trees will not fall under the purview of Section 9 of the Travancore Land Conservancy Act, 1091, that the claim for the value of this type of improvements was disallowed. Thefirst question therefore to be determined iswhether the appellant is a mere trespasser. Thecase of the appellant as put forward before usis that he entered into possession and madeimprovements under a bona fide claim of title.We find it difficult to accept this contention.The averment in paragraph 1 of the plaint is:'xx xx xx xx'(Quotation in Malayalam omitted--Ed.)

8. This will not establish bona fides. At no time did the plaintiff believe that he had any title or claim of title to the property. It is only such a belief that can take him out of the category of a mere trespasser. As early as 1096 a suit, O. S. No. 126 of 1096 was instituted by the Koodalvally Illom against the State for establishing the title of the Illom to a large tract of land including the plaint property. The plaintiff sought to get himself impleaded in that suit. That application was rejected. The suit itself was dismissed on 28/6/1109. The title of the Illom thus stood negatived on 28-6-1109. More than a decade before that on 12-6-1094 (as seen from Ext. A) the plaintiff himself had applied for registry of the land. This application shows that the petitioner knew even at that time that the land was Government land and was prepared to apply to the Government for assignment of the land. This application was rejected by Ext. A order on 14-6-1919.

There is nothing in the evidence to indicate that the plaintiff had any sort of permission from Koodalvally Illom. The plaintiff himself had instituted a suit, O. S. No. 156 of 1108. Ext. M is the plaint in that case. There is no mention in the plaint on that basis the plaintiff was holding the property of the Illom. When he was examined as P, W. 1 in this suit, he deposed that his father had a lease from the Illom. This appears to be an improvement, for, if there was any such document, he would certainly have made mention of it in Ext. M. Whatever that be, the document is not forthcoming. It is said, it was lost.

The suit O. S. No. 156 of 1106 was dismissed and the dismissal was confirmed in appeal.

The suit O. S. No. 156 of 1106 itself, it appears to us, was instituted for the purpose of holding up the case taken against the petitioner under the Land Conservancy Act as Land Conservancy Case No. 112 of 1100.

9. The court below found under issue No. 1 that the evidence in the case would indicate that the possession of the father of the plaintiff must have started close to the year 1100 and that the claim that there was possession from 1080 cannot, be true. The evidence has been discussed and we see no reason to differ from the conclusion reached by the court below. If the possession commenced only about the year 1100, it certainly cannot be under any bona fide claim of title for even on 12-6-1094, the petitioner knew that the land was Government land and had then applied for assignment of the land. So our finding is that at no time the occupation of the land by the plaintiff was under a title or under a bona Me claim of title.

It was urged by counsel that in the Travancore there was a long standing practice of allowing strangers to enter on cherickal lands whether they belonged to the State or private individuals and cultivate them on the implied understanding that a share of the produce will be paid to the owners of the land so cultivated. It is difficult to say that the practice, even if it existed, amounted to a standing invitation in pursuance of which strangers, without permission, could trespass on cherickal lands and convert them into a rubber plantation as has been done in this case. The practice seems to have been confined to fugitive cultivation and should, at any rate, be considered as having been terminated in respect of Government lands with the passing of the Land Conservancy Regulation of 1091. The standing invitation cannot be deemed to subsist after the passing of that Act, and the plaintiff-appellant, in our opinion, has to be considered as a mere trespasser on Government property.

The Government has of course got the right to grant a registry in favour of a trespasser on Government land. Whether in a given case a registry should be granted or not is in the sole and untrammelled discretion of the Government. The plaintiff-appellant has no right to demand such a registry, and his hopes, even if bona fide entertained, cannot possibly affect the question as to whether he was a mere trespasser or not.

10. This leads us to the discussion of the question as to whether a mere trespasser is entitled to any right after dispossession in respect of the improvements he had effected during the currency of his trespass? This question was left open in Vallabadas Narainji v. Development Officer, Bandra, AIR 1929 PC 163 and Mammunhi v. Kunnibi, 1960 Ker LT 1343: (AIR 1961 Kerala 147). The contention that even a mere trespasser after dispossession has certain rights in respect of the improvements he had effected during the currency of the trespass is based upon the fact that the maxim quic quid plantalur solo solo cedit--whatever is affixed to the soil belongs to the soil--has been held to be not applicable to this country, 1960 Ker LT 1343: (AIR 1961 Kerala 147) dealt with the matter as follows:

'In AIR 1929 PC 163 counsel for the respondents whilst contending that his clients could not be considered 'mere trespassers' also submitted 'that, even if it were so, once it was admitted that the English maxim did not apply, the logical consequence followed that in any case of trespass by building on the lands of another, such trespasser had a right to remove the structure or be paid the value thereof by the owner'. The Board did not deal with the matter. Their Lordships said that they did not think it necessary 'to give a decision upon this far-reaching contention'. In this case also it is unnecessary to decide the question. The defendant constructed the building on the plaintiff's land with her consent. He was no trespasser, absolute or qualified.'

In the case before the Privy Council counsel for the respondent also submited that 'no case drawing a distinction in the nature or degree of the trespass could he found'. In Thakoor Chander Poramanick v. Ilamdhone Bhutta-charjee, 6 Suth WR 228 Sir Barncs Peacock did make the distinction. He said:

'We think it clear that, according to the usages and customs of this country, buildings and other such improvements made on the land do not, by the mere accident of their attachment to the soil, become the property of the owner of the soil; and we think it should be laid down as a general rule that, 'if he who makes the improvement is not a mere trespasser,' but is in possession under any 'bona fide' title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil--the option of taking the building, or allowing the removal of the material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess.'

The material words are the words we have underlined (here in ' ').

To the same effect is Gannan Dunkerley and Co. Ltd. v. State of Madras, AIR 1954 Mad 1130. In that case Satyanarayana Rao J. said:

'By the mere accident of attachment to the soil, the building does not become the property of the owner of the soil. But this applies only to a case where the person making the improvement does it under a bona fide title or claim of title, and if it turned out that his plea was unfounded, he is entitled to remove the materials restoring the land to the owner; but if he is a trespasser no such right is recognised.'

There can be no equity in favour of a mere trespasser and we see no reason to hold that the owner of the land in the case of a naked trespass is bound either to pay for the improvements effected during the currency of the trespass or to allow the trespasser to remove those improvements after the termination of the pass by the dispossession of the trespasser,

In Bishen Das v. State of Punjab, AIR 1961 SC 1570 (paragraph 11) the Supreme Court followed 6 Suth WR 228, Narayan Das v. Jalindra Nath and AIR 1927 PC 135 and said :

'These decisions show that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quic quid planlatur solo solo cedit.'

In Vasudevan Nambudripad v. Valia Chathu Achan, ILR 24 Mad 47 a Full Bench of the Madras High Court extracted the relevant passage from 6 Suth WR 228 and said:

'We do not think that any valid distinction in principle can be drawn between buildings erected by a tenant and trees planted by him, and it will be observed that the Transfer of Property Act places both in the same category as regards the tenant's right of removal. It is suggested that trees exhaust the ground, but we are not aware that there is any proof of this. Many soils would probably benefit by being opened up and aerated by the planting of trees. There might be more difficulty in restoring ground planted with trees to its original state, than in restoring ground covered with buildings, but that is a matter for the tenant to deal with when he removes the trees. If he does it, as the law requires him to do, the landlord will not be injured and it is difficult to see on what principle the tenant's right to remove the trees could be forbidden.'

Under Section 108(h) of the Transfer of Property Act 1882, a lessee, after he has lost possession of the properly, has no right to remove the things which he had attached to the earth. Why should a trespasser, whether bona fide or not, have a higher right after his dispossession? This question has been posed by the Advocate-General and has to be answered.

The maxim quic quid planlatur solo solo cedit--whatever is affixed to the soil belongs thereto--applies not merely to buildings but to trees as well. If trees are planted in the land of another, the owner of the soil becomes the owner also of the trees as soon as they have taken root (See Broom's Legal Maxims, Page 262).

Things 'attached to the earth', according to Section 3 of the Transfer of Property Act, 1882, include :

(a) things rooted in the earth such aa trees,

(b) things imbedded in the earth such as buildings, and

(c) things attached to what is so imbedded such as doors and windows.

When it was said in 6 Suth WR 228 (and the subsequent cases that lake the same view) lhat quic quid plantatur solo solo cedit does not apply to this country the reference must be to things imbedded in the earth such as buildings and not to things rooted in the earth such as trees. As stated by Mulla:

'In the absence of a contract to the contrary, trees planted by a tenant pass to the landlord on the expiry of the lease.' (Transfer of Property Act, 4th Edition, Page 645).

The case referred to in support of the above proposition Jugrajsa Chunilalsa v. Umeraosingh Sikdarsingh, AIR 1950 Madh Bha 39--and the cases mentioned in that decision show that 'there is eminent judicial authority for the view that when a tenant plants trees on his holdings, the property in such trees attaches, in the absence of a contract or custom to the contrary, to the land and passes with it.'

In one of the cases mentioned a tenant had mortgaged trees planted by him on his holding and was thereafter ejecfed by the landlord. The mortgagees sued, and it was held that they had no lien on the trees after the eviction of the tenant.

The position of a trespasser--whether he be a mere trespasser or a trespasser under a bona fide claim of title--cannot be better than of a tenant. If what is stated above is correct, then the appeal has to be dismissed on the short ground that there is no principle of law or equity which requires the payment of compensation in respect of trees, the ownership of which was all along, or at any rate from the date of the trespasser's dispossession vested in the State.

11. It was further urged by counsel on behalf of the plaintiff-appellant that even if the possession is as stated above, Section 9 of the Land Conservancy Act of 1091 has made a change. Section 9 may be read again:

'Any person unauthorisedly occupying any land for which he is liable to pay a fine under Section 6 and an assessment or prohibitory assessment under Section 7, may be summarily evicted by the Division Peishkar, and any crop or other product raised on the land shall be liable to forfeiture and any building or other structure erected or anything deposited thereon shall also, if not removed by him after such written notice as the Division Peishkar may deem reasonable, be liable to forfeiture. Forfeiture under this Section shall be adjudged by the Division Peishkar and any property so forfeited shall be disposed of as the Division Peishkar may direct.'

The contention of the plaintiff-appellant is that the trees with which we are concerned in this appeal should have been forfeited by an order passed under Section 9; and in the absence of such an order his rights to the value of those trees have to be adjudged and paid to him. The contention of the Advocate-General is that trees do not come under Section 9; and there can be no question of effecting any forfeiture under that section. We are inclined to accept this contention.

Section 9 speaks of 'any crop or other product raised on the land'. Trees cannot possibly be considered as a 'crop or other product raised on the land'. What is meant by 'crop or other product raised on the land' must be what is familiarly known in the law as 'emblements'. According to Black's Law Dictionary the word 'Crop' or 'emblements' means:

'Such products of the soil as are annually planted, severed, and saved by manual labour, as cereals, vegetables, grass maturing for harvest or harvested, etc., but not grass on land used for pasturage.'

Trees, therefore, must be dealt with under the general law; and as we have held that a mere trespasser is devoid of rights, the State is not bound to pay compensation in respect of the trees or allow the plaintiff-appellant to remove them after bis dispossession.

12. It was finally contended that the points that we have considered above should not be considered by this Court for the only contention that has been raised in the written statement to negative the plaintiff-appellant's claim for the value of improvements was on the basis that there was an order of forfeiture under Section 9 of the Land Conservancy Act of 1091. This is not correct. The submission ignores the statement in paragraph 9 of the written statement:

'This defendant submits that even apart from the bar created by the order of forfeiture passed under Section 9 of the Land Conservancy Act, plaintiff is not entitled to claim as against this defendant any value of improvements.'

13. There only remains for us to notice an argument raised by the appellant's counsel that the State not having appealed from the decree granted to the plaintiff-appellant for the value of the building, the State cannot be heard to say in this appeal that no value is payable for the other improvements effected by the appellant. The contention is that the only basis on which the decree for the value of the building can be sustained is that the appellant-plaintiff is a person who had been in possession of the property under a bona fide claim of title and had made improvements. We are unable to accept this contention. Buildings are specifically mentioned in Section 9 of the Land Conservancy Act 1091 and it has been ruled in Sirkar v. Venkitasubramonia Iyer, 1953 Ker LT 599: (AIR 1953 Trav-Co 349) as well as Sankaranarayana Pillai Janardan Nair v. P. Nanu, 1945 Trav LR 294 that the value of such improvements as menfioned in the section can he forfeited only by an order of forfeiture as envisaged by the section. There is no such order in the case, and therefore it is, as we understand the judgment and the decree of the court below, that the value of the building was granted to the appellant.

14. In the light of the above, we dismiss this appeal with costs.


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