P.T. Raman Nayar, J.
1. The short question is, can a person who has put up a building in another's land, but is not in possession thereof, be given a decree for possession? And, but for the decree of the lower appellate Court and the long and learned argument advanced in support thereof, I should have thought it unnecessary to say more than that he cannot.
2. The property in suit is a piece of land, 33 cents in extent, with a house on it. The land forms part of Survey No. 1814/A of Randamada Village. The whole of the survey field which is 2.64 cents in extent belonged at one time to the family of the plaintiffs and the plaintiffs claimed that the 33 cents of land in suit fell to their share in their family partition under Ext. P-3 dated 8-10-1105 M. E. (21-3-1930 A. D.). After thus getting the land, the plaintiffs built a house on it, and on 1-12-1956, they orally leased out the house to the 1st defendant on a monthly rent of Rs. 3/-; and the 1st defendant has since then been living in the property with his wife, the 2nd defendant, and his father, the 3rd defendant. However, in reply to a notice to quit issued by the plaintiff, the 1st defendant denied the lease and set up title in himself. Hence the present suit, based on title, in which the plaintiffs claimed a decree declaring that they were entitled to and were in possession of the land and the building and for the recovery of the building from the hands of the defendants. The plaintiffs also asked that, in case it should be found that the defendants were in possession of any part of the land, they should also be given a decree for possession of the part.
3. The 1st defendant alone contested the suit -- the remaining two defendants may therefore be ignored and I shall hereafter refer to the 1st defendant as merely the defendant -- and his case was that the house in his occupation was not on the plaintiffs' land and that the suit property was not the property allotted to the plaintiffs in the partition under Ext. P-3. The house stands on the 11 cents of land allotted under the partition to another member of the plaintiffs' family, Raghvan Pillai by name. The defendant bought this land from Raghvan Pillai on 11-3-1962, built the house and has been living in it since then. The house was not built by the plaintiffs. Neither the house nor the 11 cents of land on which it stands belonged to the plaintiffs and the lease set up by the plaintiffs is false.
4. The plaint furnished no particulars for locating the land in respect of which it was laid beyond saying that it was the land described in the 10th Schedule in the partition deed of 1105 M. E. (1929-30 A. D.). But Ext. P-5, a rough sketch indicating its location was filed along with the plaint. In that sketch, the suit land, 33 cents in extent, as claimed by the plaintiffs, was marked A, and the 11 cents allotted in the partition to the defendant's predecessor under 4th Schedule, was marked as B. A Commissioner was appointed for making a local inspection and locating the several shares allotted in the partition and reporting where the suit house stood. He made a perfectly useless inspection and submitted a perfectly useless report. He conceived it to be his duty only to ascertain and report whether the house in question fell in the plot marked A in the plaintiff's plan, Ext. P-5, or in the plot marked B; and he reported that it was in the plot marked A, thus begging the very question in the suit, namely, whether the plot marked A, which was the property which the plaintiffs claimed as theirs, was the property allotted to them in the partition. Surprisingly enough, on the basis of this report--Ext. P-1 is the report, and Ext. P-2 a plan showing the location of the house as lying outside the plot of the defendant on the assumption that Ext. P-5 was a correct plan--the trial Court found title in favour of the plaintiffs. It also found that the house had been built by the plaintiffs but managed to disbelieve the lease set up by them, and, in accordance with these findings, it decreed the plaintiff's suit,
5. On appeal by the defendant it was apparently conceded by both parties that the report and the plan of the Commissioner appointed by the trial Court were of no use whatsoever, and, by common consent, a fresh commission was issued. Fortunately the Commissioner appointed by the appellate Court addressed himself to his task with greater understanding than that displayed by the Commissioner appointed by the trial Court, and, on the basis of the survey plan of Survey No. 1814/A, the survey measurements, and the partition deed Ext. P-3, he prepared the plan, Ext. C-2, showing the plots allotted to the several -shares under Ext. P-3 and locating the house in dispute. This plan and Ext. C-1, the report accompanying it, showed that no part of the house was in the plot allotted to the plaintiffs and marked as 10 in the plan; that the best part of the house stood on the plots marked 5 and 6 allotted to other sharers; and that the rest of it was in the plot marked 4, the 11 cents allotted to the defendant's predecessor, Raghavan Pillai.
6. The lower appellate Court declined to pronounce on the question of title to the land on the ground, scarcely supportable, that title could be decided only in the presence of all the sharers, although all that was called for was a decision as between the plaintiffs and the defendant. It agreed with the trial Court in disbelieving the lease set up by the plaintiffs; and, agreeing also with its finding that the house in dispute was built by the plaintiffs, it came to the conclusion that the house belonged to the plaintiffs. Accordingly, it gave the plaintiffs a declaration to that effect and also gave them a decree for possession of the house on the strength of their title. It said nothing about the land. The defendant has consequently come up with this second appeal.
7. I think that the decree of the lower appellate Court and the argument addressed before roe in support of it are based on a misapplication of what was laid down in decisions such as Thakoor Chunder Poramanick v. Randhone Bhuttacharjee, 6 Suth WR 228, Narayan Das v. Jatindra Nath, AIR 1927 PC 135, Vallabdas v. Development Officer, Bandra, AIR 1929 PC 163 and Dr. K. A. Dhairyawan v. J. R. Thakur, AIR 1958 SC 789 to pick out only the more important of the numerous cases that have been cited.
So far as I can see, all that these cases lay down is that the maxim, quicquid inacdificatur solo, solo credit has no absolute application in India. In other words, the rule of English law that whatever is attached to the soil is part thereof and necessarily belongs to the owner of the land is not the law in India. In England, anything built or growing on land becomes part of the soil and automatically vests in the owner of the land. But, in India, a building or other fixture can be owned separately from the land on which it stands and can be the subject of a separate transfer. Therefore, it need not necessarily belong to the owner of the land although, as a matter of fact, in the generality of cases, it does. But, I do not think that it is the law in India that you can build a house on somebody else's land and call it your own, and, not being in possession, obtain a decree for possession on the strength of title. None of the cases cited is authority for the proposition that a person constructing a building on somebody else's land, otherwise than by some arrangement which entitles him to the support of the land, is the owner of the building unless, perhaps, by the word, 'building' you mean not the building as it stands, but merely the brick and mortar and other materials of which it is made. If indeed a person unauthorisedly building a house on somebody else's land were the owner of the building in the true sense of the word, namely, the building as it stands, with the support of the subjacent and adjacent soil, then, surely, in a suit for possession by the owner of the land, the suit should be dismissed in so far as the building is concerned. But that is not so. And the extent to which the authorities go in applying the rule that in India a building can be owned separately from the land, to a case where a person has unauthorisedly built on the land of another is that where that person suffers a decree in ejectment he must, at the option of the owner of the land, be entitled to demolish and take away the materials of the building leaving the land undamaged, or, in the alternative, be paid the value of his building as compensation.
Indeed, it is possible for a building in the true sense of the word to be owned by one person while the land on which it stands is owned by another if the person who owns the building owns also the right to the support of the land. Such a case might, perhaps, arise where the land is transferred apart from the building, but, even in such a case, it is to be noted that it was observed in AIR 1927. PC 135 at p. 138 that the owner of the land would have the right to call upon the owner of the building to remove the building and that, if the owner of the building did not remove it, he would lose. I do not think that any of the later decisions go any further than the leading case in 6 Suth WR 228, where it was said,
'We have not been able to find in the laws or customs of this country any traces of the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself.'
'We think it clear that, according to the usages and customs of this country, buildings and other such improvements made on 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.'
This second observation defines the limits of the right of a person who has put up a building on somebody else's land. His rights extend no further. The owner of the land is not the owner of the building, but neither is the builder unless, as I have said, the word 'building' is used to cover only the materials of the building. The only right which the builder has is that, in the event of his being evicted, he should be allowed to take away the materials or be paid compensation.
8. In this connection it might be useful to refer to Section 103(h) of the Transfer of Property Act. Even a lessee who has built on the land leased is not the owner of the building in the sense that he can retain it as it stands. His only right in respect of the building is that, 'whilst he is in possession of the property leased but not afterwards,' he may remove the building provided he leaves the property in the state in which he received it. Surely, the rights of a trespasser cannot be higher. It is obvious that a lessee cannot, after he has ceased to be in possession, even remove a building he has constructed with his own funds on the property leased, much less recover possession of it. On what principle then can a trespasser do so?
9. It is said that the decision in AIR 1958 SC 789 shows that there can be a decree for possession of a building apart from the land on which it stands. Possibly there can be, although in that case actual possession was not decreed and all that the plaintiffs were given was a declaration regarding the ownership of the building and of the right to recover rents and profits therefrom. There was also an injunction restraining the defendants from interfering with the collection of rents and profits by the plaintiffs from the tenants in actual occupation of the building. It is also to be noted that both the building and the land on which it stood belonged to the plaintiff trust, and the difficulty arose only because of the statute which prohibited the eviction of the defendants, who were lessees of the land, from the land. Their Lordships found that the building was not subject-matter of the lease and did not come within the prohibition in the statute, and even if a decree for actual possession of the building were passed, it could well be on the basis that the building in the true sense of the word, namely, the building as it stood, belonged to the plaintiff trust and that in giving possession thereof to the plaintiffs there was no eviction of the defendants from the land.
10. I am, I apprehend, bound by the concurrent findings of fact of the Courts below, (i) that the house was built by the plaintiffs; and (2) that the lease set up by them is not true, rather inconsistent though these findings seem to be. For, if the house was built by the plaintiffs it is highly improbable that the defendant would have got into possession otherwise than under the plaintiffs; and, in the absence of satisfactory evidence that the defendant got into possession in some other way, I would have believed the plaintiffs' evidence that the defendant got into possession under a lease granted by the plaintiffs if I believed their evidence that the house was built by them. But I do not think an inconsistency from the point of view of mere probability amounts to an error of law. It is no more than a misappreciation of the evidence even if the misappreciation arose (as in this case, it probably did) out of a compartmental consideration of the evidence issue wise.
However, accepting the findings, it follows from what I have already said, that no decree for the possession of the house can be given to the plaintiffs unless they establish title to the land on which the house stands. The lower appellate Court was therefore wrong in leaving open the question of title to the land; and, in decreeing the suit only in respect of the house, saying nothing about the land, it has in effect, dismissed the suit so far as the land is concerned -- Explanation V to Section 11 C. P. C. -- and has thus deprived the plaintiffs of some land which, it would appear, undisputedly belongs to them. Moreover. one is tempted to ask, of what use the house wilt be to the plaintiffs if they cannot enter upon the land.
11. I do not think it is necessary to remit the suit to the lower appellate Court for the purpose of deciding the question of title to the land. I propose to decide it myself since I am satisfied that there is sufficient material on the record for doing so. It would appear that, to the Commissioner appointed by the lower appellate Court, the plaintiffs did not point out the 33 cents of land which according to them, was the subject-matter of their suit. But, the plaint describes the subject-matter of the suit as the 33 cents of land allotted to the plaintiffs under Schedule 10 of the partition deed, Ext. P-3. The Commissioner has located this 33 cents of land and has, as I have already said, marked it as Plot 10 in his plan, Ext. C2. Therefore, it is safe to proceed on the basis that this plot, marked 10 in Ext. C2, is the suit property.
12. The plaintiff's title is based on Ext. P-3 which is the root of the 1st defendant's title as well, and, unless it is shown that the Commissions erred, it necessarily follows that the plaintiffs have title to the plot marked 10 in Ext. C2 and to nothing more. In the lover appellate Court the plaintiffs did file an objection to the Commissioner's report and plan. But beyond making vague and entirely unsubstantiated allegations of bias and dishonesty against the Commissioner, the objection does not even attempt to say in what respect the Commissioner's report and plan erred.
The plaintiffs could, if they wanted to, have obtained leave from the appellate Court to ad-duce evidence to substantiate their charges against the Commissioner and to show how exactly he erred and they could have proved by such evidence which exactly was the land they got under Ext. P-3. And I should imagine that leave would readily have been granted in view of the fact that the Commissioner's report and plan were fresh evidence adduced before the appellate Court. The plaintiffs did nothing of the kind; nor has their counsel succeeded in throwing the least doubt on the correctness of the Commissioner's plan and report. I therefore accept the Commissioner's plan and report and hold accordingly that the plaintiffs have title to the plot marked 10 in the Commissioner's plan, Ext. C2, which, as I have already remarked, must be deemed to be the property in suit.
13. As we have seen, the house in dispute falls entirely outside this plot, but, since the house is specifically mentioned in the plaint that also must be deemed to form part of the property in suit. With regard to the house, it follows from what I have stated above that the plaintiffs have not proved title to the land on which it stands and that therefore they are not entitled to a decree for its possession. That a large portion of the house stands, according to the Commissioner's report, on land which does not belong to the defendant makes no difference to the position, since, in a suit for possession based on title, the plaintiff can succeed only on the strength of his own title and cannot get a decree on the weakness of the defendant's title.
It would further appear from the Commissioner's plan and report, Ext. C1 and C2, that the defendant is in possession of the westernmost extremity of the plot marked 10 in Ext. C2 to which plot as I have said, the plaintiffs are entitled. Although the effect of the decree of the lower appellate Court is that the plaintiff's suit in respect of the land, in other words, the plot marked 10 in Ext. C2, is dismissed, I think that justice requires that the plaintiffs should be given a decree declaring their title to this plot and enabling them to recover possession of the portion thereof which is in the defendant's possession. And I think that Order XLI Rule 33 of the Code gives me the power to secure this.
14. In the result, there will be a decree declaring the plaintiffs' title to the plot marked 10in Ext. C2 and for recovery from the hands ofthe defendants of the portion thereof which is intheir possession (the blue shaded portion in Ext.C2). The plaintiffs' suit is dismissed so far asthe home is concerned. The plaintiffs will paythe defendants the costs incurred by them in allthe three Courts.