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Rev. Father K.C. Alexander of Kuttikandathilaya Kollakulhiyil, Thadiyoor Muri Vs. Nair Service Society Ltd. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberAppeal Suit No. 406 of 1961 and C.M.P. No. 8850 of 1965
Judge
Reported inAIR1966Ker286
ActsLimitation Act, 1963 - Schedule - Articles 64 and 65; Code of Civil Procedure (CPC) , 1908 - Sections 2(12) and 151 - Order 7, Rule 2; Court Fees Act, 1870 - Sections 11; Evidence Act, 1872 - Sections 114
AppellantRev. Father K.C. Alexander of Kuttikandathilaya Kollakulhiyil, Thadiyoor Muri
RespondentNair Service Society Ltd.
Appellant Advocate K.P. Abraham,; T.P. Poulose and; Annamma Alexander,
Respondent Advocate K. Velayudhan Nair,; V.S. Moothathu,; K.J. Joseph,;
DispositionAppeal allowed
Cases ReferredRev. Fr. K. C. Alexander v. State of Kerala
Excerpt:
property - possession - code of civil procedure, 1908 - appeal against dismissal of suit for possession, mesne profits and compensation for waste - whether plaintiff entitled to decree for possession in respect of entire suit property - contention that defendants no. 3 to 6 in possession of plot under their own independent titles as such decree for possession not be made against defendant no. 1 with respect to such land not maintainable - defendant no. 1 had admitted in pleadings that he was in possession of entire suit property - amendment of pleadings 15 years after institution of suit not allowed - held, plaintiff entitled to decree for possession against defendant no. 1 regarding whole of suit property alongwith mesne profits from date of defendant's trespass till date of institution.....raman nayar, j. 1. this appeal is by a plaintiff whose suit for possession, mesne profits, and compensation for waste has been dismissed as against the 1st and 2nd defendants and 75.76 acres out of the 131.23 acres of land in suit (the court below has found that the actual extent of the suit land is only 118.85 acres but the difference in area is of no consequence) and has been decreed only as against the remaining defendants, defendants 3 to 6, and the rest or the land. the plaintiff seeks a decree against the 1st defendant and the rest of the land as well -- the 2nd defendant is only a servant of the 1st defendant society and has no independent title or possession.2. the suit land is the plot marked l(i) in the plan ext. l (prepared by the commissioners in some other proceeding. c.m.a......
Judgment:

Raman Nayar, J.

1. This appeal is by a plaintiff whose suit for possession, mesne profits, and compensation for waste has been dismissed as against the 1st and 2nd defendants and 75.76 acres out of the 131.23 acres of land in suit (the court below has found that the actual extent of the suit land is only 118.85 acres but the difference in area is of no consequence) and has been decreed only as against the remaining defendants, defendants 3 to 6, and the rest or the land. The plaintiff seeks a decree against the 1st defendant and the rest of the land as well -- the 2nd defendant is only a servant of the 1st defendant Society and has no independent title or possession.

2. The suit land is the plot marked L(i) in the plan Ext. L (prepared by the commissioners in some other proceeding. C.M.A. No. 206 of 1110 of the High Court of Travaucore, and proved by one of them who was examined as Pw. 10 in this suit); L(i)(a) is the land in respect of which the suit has been decreed; and L(i)(b) is the land in respect of which it has been dismissed. Adjoinine the suit land to the east is the land marked L(2) in Ext. L, the true area of which has been found by the lower court to be 172.38 acres but which has been referred to by the witnesses as the 160 acre land, that being the area given in some of the documents marked in the case. The suit land and the 160 acres land lie in Survey Numbers 780/1 and 780/2 of Ranni Village, very extensive survey fields together having an area of about 8000 acres. The entire land comprised in these two survey fields is admittedly forest poromboke belonging to the Government. But, admittedly again, the plaintiff was in possession of the suit land as also of the 160 acres land up to the end of the year 1114 M.E. (1938-39 A.D.), whether for over 70 years as alleged by the plaintiff, or only for a much shorter period as contended by the 1st defendant Society (the only contesting defendant) is a matter of no moment since the plaintiff claims only a possessory and not a prescriptive title. In the year 1100 (1924-25) the Government initiated proceedings under the Travancore Land Conservancy Act, L. C. Case No. 112 of 1100, in respect of the plaintiff's unauthorised occupation -- Exts. AT, AT(i) and AT (2), copies of some of the proceedings in that case including a sketch of the land in question leave no room for doubt (both from the area mentioned, as also from the sketch which tallies exactly with plot L(2) in Ext. L) that the L.C. case was only in respect of the 160 acres land and was not in respect of the suit land. The plaintiff thereupon filed a suit, O. S. No. 156 of 1103, against the Government, and by reason of a temporary injunction issued in that suit, it was not until 8-12-1114 (24-7-1939) that the Government were able to complete the proceedings in the L.C. case and evict the plaintiff under the mahazar, Ext. AG, which, although it does not give the extent of the land from which the eviction was effected, clearly mentions that it was from the land in L.C. Case No. 112 of 1100 and therefore, on the face of it, could only have been from the 160 acres land. By Ext. BD dated 26-12-1114 (11-8-1939) the 1st defendant Society by its General Secretary who has been examined as Dw. (1) applied for a kuthaka-pattam (the term used for a lease of Government land) of the land from which the plaintiff had been evicted in L.C. Case No. 112 of 1100, mentioning the area of the land as 165 acres. The application was granted within a few days, and, although the kuthakapattain deed has not been produced, it is the admitted case that the lease was of the 160 acres land. Of this land, the 1st defendant was put in possession on 5-1-1115 (21-8-1939), 10 days after it had made its application, Ext. BD, and, it is the plaintiffs case that on 30-2-1115 (16-10-1939) the 1st defendant Society employing a large body of men for the purpose, invaded (he suit property, assaulted and drove away the 21 families which the plaintiff had installed therein, and effectively reduced the property to its possession -- a few days earlier, on 27-2-1115 (13-10-1939) a body of men led by the 2nd defendant had entered on the suit land on the 1st defendant's behalf and had harvested and carried away the paddy crop raised therein. On 27-2-1118 (13-10-1942) the plaintiff brought the present suit (in forma pauperis) alleging that ever since the trespass of 30-2-1115 (18-10-1939) the 1st defendant Society, and, under it, defendants 2 to 6, were in possession and enjoyment of the property; and he claimed possession from their hands with mesne profits past and future, and in case the court round that waste had been committed, compensation for such waste?.

3. The kuthakapattam of 1115 (1939-10) of the 160 acres land in favour of the 1st defendant was for a term of 12 years. Ext. VI dated 10-3-1948, a letter addressed by the Government to the President of the 1st defendant Society states that Government were pleased to sanction a lease of the entire area of 256.13 acres in the occupation of the 1st defendant without any limit of time on an animal pattam of Rs. 3-16-0 per acre and that the 1st defendant was to pay arrears of pattam at the above rate for the entire area from the dale of its occupation, i.e. from 1115 (1939-40). Ext. I (which bears no date) is the kuthakapattam deed executed in pursuance of this sanction, and it is not disputed that it comprises the 160 acres land as also that part of the suit property (namely, plot L(i)(b), 75.76 acres in extent) in respect of which the suit has been dismissed. No plea based on this title acquired subsequent to the suit was however taken by the 1st defendant although, as late as 3-10-1958, more than tenyears later, it filed an amended written statement; and no issue was joined in respect of it.

4. As we have seen, the 1st defendant alone contested the suit -- the remaining defendants suffered it to proceed ex parte. The 1st defendant's case was that the plaintiff's occupation of the land in S. No. 780/1 and 780/2 was not 70 years old but was of much shorter duration. While the plaintiff was thus in possession he was evicted by the Government from the entire land in his occupation (i.e. from the 160 acres land and from the suit property) in Karkatakam, 1114. In Chingam, 1115 the Government granted the 160 acres land to the 1st defendant on Knthakapattam, and, in respect of the rest of the land, namely, the land described in the plaint schedule, proceedings were pending for granting that also on kuthakapattam to the 1st defendant. On the basis of these proceedings, the 1st defendant entered into possession of the entire land, namely, the suit land and the 160 acres land from 1-1-1115 (17-8-1939) onwards and has since been in possession. At that time the plaintiff was in possession of no portion of the land, and the allegation in the plaint that the 1st defendant took forcible possession of the land is completely false. The 1st defendant had only occupied land that was lying vacant. It had not taken the plaintiff's crops or caused any loss or damage to the plaintiff. The plaintiff had no manner of title or possession in respect of the suit land and therefore his suit ought to be dismissed.

5. In the evidence given on its behalf by Dw. 1, the 1st defendant restricted its claim to plot L(i)(b) in Ext. L (more accurately shown in the plan Ext. AZ), 75.76 acres in extent, without however amending its written statement in which its claim was to the entire suit land. The lower court found that, at least in respect of this 75 acres land, the plaintiff had been evicted by the Government on 8-12-1114 (24-7-1939) when it evicted him from the 160 acres land by the proceedings in L.C. Case No. 112 of 1100. Neither the plaintiff nor the 1st defendant had title to the 75 acres land, and the plaintiff not being in possession when the 1st defendant took possession of the land, he was not entitled to recover it from the 1st defendant. It was on this basis that it dismissed the suit as against the 1st defendant as also as against the 2nd defendant, the latter being only a servant of the 1st defendant.

6. The question is whether the plaintiff is entitled to a decree for possession, mesne profits and compensation for waste against the 1st defendant as well -- and that in respect of the entire property in suit. His contention is that he is, on the strength of his possessory title, the 1st defendant being a mere trespasser, whether it be that, as he avers he was forcibly dispossessed by the 1st defendant, or whether it be, as the 1st defendant alleges, the dispossession was by the true owner, namely, the Government, the 1st defendant entering into possession only after that.

7. We shall first consider the question of recovery of possession. As we have seen, it is the admitted case that the plaintiff was in possession of the suit property for a number of years up to the end of the year 1114 (1938-39). The court below has found that he was in possession from about 1096 (1920-21). The evidence clearly establishes that he was in possession at least from 1100 (1924-25) and the contrary was not urged either here or in the court below]. But it is contended on behalf of the 1st defendant that the plaintiff being only a trespasser, his right to possession came to an end when he lost possession, whether it be in Karktakam 1114 as alleged by the 1st defendant or in Kanni 1115 as alleged by the plaintiff himself. Thereafter he could have recovered possession only by a suit brought within six months under section 32 of the Travancore Limitation Act (corresponding to section 9 of the Specific Relief Act). In any view of the matter, the plaintiff's possessory title was extinguished when the true owner, namely, the Government, entered into possession; and, even if it be that his case that he was actually dispossessed not by the Government but by the 1st defendant be accepted, there was in law, if not in fact, as a consequence of this interruption in the continuity of possessory title, an interregnum during which there was 'a constructive, even if a momentary, restoration of the true title to possession.'

8. We consider that, on this question of recovery of possession, the plaintiff must succeed. It might have been logical, perhaps even desirable, to hold that Sections 9 & 54 of the Specific Relief Act and Section 145 of the Cri. Procedure Code set the limits up to which a mere possessory title is recognised by the Indian Law. Under Section 145, a person in possession can obtain protection against all invaders of his enjoyment, according to Vasudeva Kurup v. Ammini Amma, 1964 Ker LT 468, even if the invader be the true owner. If he is dispossessed without his consent, otherwise than in due course of law, by anybody other than the Central Government or the State Government he can, under Section 9, by a suit brought within six months, recover possession even if it be that the dispossessor is the true owner. If he can muster enough strength to make a breach of the peace likely, the magistrate having jurisdiction will step in under Section 145 of the Criminal Procedure Code to maintain his possession until eviction in due course of law, or to restore it to him if he has been forcibly and wrongfully dispossessed within the two months preceding. But, these statutory provisions notwithstanding, the courts in India have all along adopted the rule of English law that 'possession is a good title of right against any one who cannot show a better, and that a wrongful possessor has the right of an owner with respect to all persons except earlier possessors and except the true owner himself.' (Salmond on Jurisprudence Eleventh Edition, p 345 -- see also pages 473 and 474.) Or, in the words of the Privy Council in Perry v. Clissold, 1907 AC 73 at p. 79, 'a person in possession of land in the assumed character or owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner.' And the several High Courts are at one in holding that a person in possession, even if he be a mere trespasser, can, on the strength of his possessory title, get back possession from any person, (except the true owner), who dispossesses him, if he brings a suit within the 12 years limited by law -- if he brings it within six months under section 9 of the Specific Relief Act he can recover possession even from the true owner. This view has been affirmed by a division bench of this court in a recent decision not yet reported (S. A. No. 901 of 1961) (Now reported in AIR 1966 Kerala 179) after an exhaustive discussion of authority, both Indian and English, and there is nothing that we can usefully add to what has been there said except perhaps to observe that the High Court of Calcutta which alone had earlier struck a discordant note in Nisa Chand v. Kanchiram Bagani ILR 26 Cal. 579, has fallen into line with the remaining High Courts with Currimbhoy & Co. Ltd. v. L. A. Greet, AIR 1930 Cal. 113 and Satishchandra v. Madan-mohan, AIR 1931 Cal 483 (2).

9. If possession by itself confers title against all but the true owner, it must follow that an earlier possessor has a prior, and, therefore, a better title than better possessor and can, unless his title has been extinguished by limitation, recover not merely from the trespasser who dispossessed him but from any subsequent trespasser. As observed by Salmond at pages 473 and 474 of his book on Jurisprudence (Eleventh edition).

'If a possessory owner is wrongfully deprived of the thing by a person other than the true owner, be can recover it. For the defendant cannot set up as a defence his own possessory title, since it is later than, and consequently inferior to the possessory title of the plaintiff. Nor can he set up as a defence the title of the true owner -- the jus tertii, as it is called; the plaintiff has a better, because an earlier, title than the defendant, and it is irrelevant that the title of some other person, not a party in the suit, is better still.'

Or as Pollock & Wright put it at page 95 of their book 'Possession in the Common Law,'

'Possession being once admitted to be a root of title, every possession must create a title which, as against all subsequent intruders, (we might odd, not necessarily the immediate intruder) has all the incidents and advantages of a true title, x x x x x x In the language of the modern authorities, 'possession is good title' --nothing less -- 'against all but the true owner''

10. Just as a true owner who is dispossessed can, within the period limited by law, bring a suit for possession against the person in possession notwithstanding that the latter is not the immediate but only a subsequent intruder, irrespective of the number of nature of the intervening adverse possessory titles, so can a possessory owner against all but the true owner. Does it make any difference then that, in between, there was an interval during which the true owner was in possession? Would that extinguish the title of all earlier possessory owners so as to entrench a subsequent trespasser and give him good title against all but the true owner? We think not. For, the title of a possessory owner springs from the fact of his possession -- and that is not erased by the true owner regaining possession. The possessory owner's title continues to exist; only it is an imperfect title which is of no avail against the perfect title of the true owner; but, against the inferior title of any subsequent possessor, it is a good title. Halsbury (Simonds Edition, Vol. 24 paragraph 492 at page 255) says on the authority of Asher v. Whitlock, (1865) 1 QB 1 and 1907 AC 73.

'If a series of trespassers, adverse to one another and to the rightful owner, take and keep possession of land continuously in succession for various periods, each less than, but exceeding in the whole, twelve years, the rightful owner is barred. The earliest possessor within the twelve years has the best title.'

The reason why the earliest possessor within the, twelve years is allowed to recover from the latest is that he has a prior and therefore a better title, a title which becomes absolute the moment the title of the rightful owner is barred; it is not that he is entitled to evict the trespasser who dispossessed him and that trespasser the next until the latest is reached; and, therefore, it should make no difference that, in between, there was an interval when the true owner was in possession from whom no recovery was possible. So long as the actual possessor is only a subsequent trespasser with an inferior title, an earlier possessor can recover on the strength of his superior title.

11. In this view of the matter, it makes little difference whether the plaintiff's case that he was forcibly dispossessed by the 1st defendant on 30-2-1115 (16-10-1939) or the 1st defendant's case that the plaintiff was dispossessed by the Government on 8-12-1114 (24-7-1939) and that the 1st defendant only entered on land which was lying vacant, is the true case. (Nor is it necessary for us to consider whether Trustees, Executors and Agency Company v. Short (1888) 13 AC 793 and Soiling v. Broughton 1893 AC 556 lay down the proposilion advanced on behalf of the 1st defendant on their authority that, when one trespasser dispossesses another, there is in law, even if not in fact, an interval during which the true owner is constructively restored to momentary possession or whether all that these decisions mean is that, when there is, in fact, an interval between the cessation of one trespasser's possession and the commencements of another's, the law will presume that the true owner was in possession during this interval. But, if the decisions lay down the proposition advanced on behalf of the 1st defendant, and if, as contended on his behalf, a re-entry by the true owner extinguishes the possessory title of all earlier trespassers, it must necessarily follow that a trespasser in possession who is dispossessed by another cannot recover from the latter since, in between, there was, in law, a momentary restoration of the possession of the true owner. (And all the decided cases must be wrong) But we might say that we are satisfied that the plaintiff's is the true case. We have seen that the proceedings in L. C. Case No, 112 of 1100 were only in respect of the 160 acres land, and, ordinarily, as borne out by the mahazar Ext, AG, the eviction could have been only from that land. Pw. 14 is the local village assistant who was present when the eviction was effected with police help, and he is an attestor to the mahazar, Ext. AG. His evidence is clear that the eviction was only from the 160 acres land and that there was no eviction from the suit land lying to the west of it. Pws. 2, 3, 6, 8, 9, 12, 15, 16 and 17, all of whom claim to have been present at the time, may as the plaintiff's men in occupation under him, have given evidence to the same effect. When the 1st defendant applied for a kuthakapattam by Ext. BD dated 26-12-1114 (11-8-1939) shortly after the eviction, it mentioned the area of the land in question as 165 acres and there is evidence to show that rubber quotas for the suit property (in which there were rubber trees) continued to be issued in the name of the plaintiff while Government sought a transfer of the rubber quota only in respect of the trees in the 160 acre plot. In the face of all this, the case of the 1st defendant, in support of which there is no evidence whatsoever, that the eviction was from the suit properly as well, and the evidence of Dw. 1 (elicited by a leading question) that all the property up to the Ponnarivi thodu which forms the western boundary of the suit property was lying vacant, that he was put in possession of it (for and on behalf of the 1st defendant) in Chingam in 1115 as the 160 acres land from which the plaintiff had been evicted and of which the 1st defendant had been granted a kuthakapattam, and that it was only on subsequent measurement that it was found that the area of the land so put in his possession was not 160 but 257 acres, is quite unacceptable.

12. The means by which the 1st defendant obtained possession seem to us clear. On 5-2-1115 (21-9-1939) Pw. 8, the plaintiffs manager, made the complaint Ext. AO against the 2nd defendant, a servant of the 1st defendant, and 18 others alleging that they had trespassed upon the suit land and harvested and carried away the paddy crop raised therein. On 16-2-1115 (2-10-1939) the 2nd defendant made a counter complaint, Ext. AS, against the plaintiff and Pws. 8 and 20 others alleging that they were threatening to take forcible possession of the 160 acres land. Both complaints were sent to the police for report, but it does not appear what happened to them thereafter. On 27-2-1115 (13-10-1939) one Krishnan Nair, a servant of the 1st defendant, made the complaint Ext. AH, against 22 of the plaintiff's men, many of whom, Pws. 3 and 8 among them, have been examined as witnesses in this case, alleging that they bad beaten him and stolen his purse. On this complaint a case of dacoity was registered and Pws. 3 and 8 and the other accused were arrested on 30-2-1115 (16-10-1939) on warrants issued by the court. (According to Pws. 3 and 8 the arrest was on the night of the 29th). Bail was moved on 31-2-1115 (17-10-1939) but the hearing of the application was adjourned for four days on the application, Ext. AM, made the same day by the pleader for the complainant on the ground that he had serious objections to the bail but was unable to stand up and present them because of an abscess on his foot. It was not until 3-34115 (20-10-1939) that the accused were released on bail. On 7-3-1115 (24-10-1939) four days after his release on bail, Pw. 8 made the complaint Ext. AR charging the 2nd defendant and 44 others, described as dependents of the 1st defendant, with having trespassed on the suit property and committed theft and other offences and generally setting out the case now set out by the plaintiff. This complaint was dismissed the same day under the provision of the Travancore Criminal Procedure Code corresponding to section 203 of the Criminal Procedure Code. On 18-6-1115 (31-1-1940) Krishnan Nair who had filed the complaint Ext. AH dated 27-2-1115 (13-10-1939) of dacoity against 22 of the plaintiffs men and had cited ten witnesses to speak to his case presented the petition, Ext. BO, to the effect that he had no evidence to adduce since his witnesses had all gone over to the side of the accused; and, on the same day, the magistrate made the order Ext, AL discharging the accused in case on the ground that the complainant had no evidence to adduce as also on the ground, not stated in Ext. BO, that the parties had come to terms. According to the plaintiff and the evidence now adduced on his behalf it was on 30-2-1115 (16-10-1939), after all the men folk in occupation of the suit property under the plaintiff had been arrested and taken away in the dacoity case and only the women and children were left, that the 2nd defendant and a large body of men took forcible possession of the suit property after beating and driving away the families in occupation. The nature of the charge in the dacoity case and its history persuade us to believe that it was a case deliberately engineered so as to have the plaintiff's men apprehend and taken away from the suit property and thus facilitate the entry thereon of the 1st defendant's men. We accept the evidence of the witnesses examined by the plaintiff to prove forcible dispossession on 30-2-1115 (16-10 1939) and we are unable to subscribe to the view of the lower court that the petition Ext. XVI dated 12-12-1114 (28-7-1939) made by the plaintiff to the Tahsidar to the effect, that under the guise of evicting him from the 160 acres land as ordered in L. C. Case No. 112 of 1100. the village officers, helped by the police, had trespassed on his remaining land and committed all manner of atrocities therein, amounts to an admission that he was actually dispossessed of the suit land.

13. With regard to the plot L(i)(b), 75.76 acres in extent, included within the 256.13 acres of land granted to the 1st defendant on kuthakapattam by the Government under Ext. I some time after 10-3-1948, five years after the institution of the suit, it is said that, at least from the time of the grant, the 1st defendant was in possession on behalf of the true owner (whose title had not been extinguished by limitation) and that therefore no decree for possession can now be made, even if the 1st defendant is to be held liable for profits accrued up to the time of the grant. But, as we have already observed, this is a subsequent title which was never pleaded and regarding which no issue was joined. The parties did not go to trial on this title of the 1st defendant -- the mere fact that the plaintiff unsuccessfully attempted to implead the State Government as a party with a view, it would appear, to impugn the grant, that witnesses were questioned with regard to this grant, and that the memorandum or appeal assails this grant on the score that Government could grant leases only of land in its direct possession, is insufficient to show that the parties went to trial on this subsequent title -- and paragraph 21 of the judgment of the lower court shows that it was at the time of argument that, for the first time, counsel for the 1st defendant put forward the title acquired under Ext. 1. The lower court rightly refused to countenance the plea, an oral plea put forward by counsel after the close of the trial, 16 years after the institution of the suit and 11 years after the event, on the score that to do so would gravely prejudice the plaintiff. After all for a court to take note of events subsequent to the institution of the suit is an exception to the general rule and a court will do so only if pleas are raised and issue joined on the basis of the subsequent events, and even so, only if it is satisfied that the opposite party suffers no prejudice thereby. None of these conditions is here satisfied -- if the plea had been raised perhaps the plaintiff's application to implead the Government might not have been disallowed and he might have been able to plead and prove that he had prescribed against the Government or that the grant in favour of the 1st defendant was otherwise of no avail -- and the decision in Nagubai Ammal v. Shama Rao (S) AIR 1956 SC 593 cited on behalf of the 1st defendant seems to us to be clearly against it.

14. On 14-12-1965, the day on which the hearing of this appeal concluded, the 1st defendant presented an application, C. M. P. No. 8850 of 1965, praying for leave to amend its written statement so as to plead a title founded on Ext. 1. Also so as to disclaim possession of plot L(i)(a) by confining its claim to the 75.76 acres comprised in plot L(i)(b) and to deny that defendants 3 to 6, whom the lower court has found to be in possession of plot L(i)(a), were in possession under it. For reasons we have already stated so far as the former amendment is concerned, and which will soon be apparent so far as the latter is concerned, we are dismissing this application.

15. With regard to the plot L (i) (a), in respect of which the suit has been decreed as against defendants 3 to 6 but not as against defendants 1 and 2, it is said that the evidence in the case shows that defendants 3 to 6 are in possession under their own independent titles, having themselves obtained Kuthakapattam grants from the Government, and are not in possession under the 1st defendant. Therefore, in no event, can a decree for possession be made against the 1st defendant in respect of this land. We are unable to countenance this argument, for the matter is clearly concluded by the pleadings. The plaint, in paragraph 4, unequivocally asserted that the 1st defendant, and defendants 2 to 6 under it, were in possession of the entire property in suit, and, both in the original written statement and in the amended written statement filed on 3-8-1958, 15 years after the institution of the suit, the 1st defendant, in paragraph 6 affirmed that it was in possession of the property described in the plaint schedule while stating that the remaining allegations in paragraphs 4, 5 and 6 of the plaint were false, it being the admitted case in the pleadings that the 1st defendant was in possession of the entire suit property, we cannot look into any evidence to the contrary even if it be, as stated on behalf of the 1st defendant, the evidence to the contrary is that of the 1st defendant himself. Nor, as we have already said, are we prepared to countenance the belated attempt now made to amend the written statement so as to plead just the opposite of what was originally pleaded on the obviously transparent excuse that the 1st defendant thought that the plaint did not take in plot L(i)(a). And it would appear that all that the plaintiff has stated as P.W.1 is that he had heard that defendants 3 to 6 had been granted the northwestern portion of the suit land (namely plot L (i) (a) ) on Kuthakapattara and that this grant could not have been on the basis of possession because the property was previously in his possession.

16. We hold that the plaintiff is entitled to a decree for possession against the 1st defendant in respect of the whole of the suit property.

17. We might perhaps mention that it has been argued for the 1st defendant that such possession as the plaintiff had was only a precarious possession insufficient to clothe him with a possessory title since he was not in possession in assertion of his own right but only in the expectation of getting a lease from the Government. It should he enough to say that there was no such plea -- nor does it appear that there is any evidence in support of such plea --but we might observe that even if it be that the plaintiff was in possession in the expectation of getting a lease from the Government, all that that can mean is that the possession was not adverse to the Government. As against the 1st defendant, a mere trespasser, it was possession in the plaintiffs own right.

18. Turning next to the question of mesne profits, it should follow from what we have held on the question of possession that the 1st defendant is liable in mesne profits both past and future. The lower court has assessed profits prior to the suit at Rs. 3392 per annum (ignoring annas and pies) and profits subsequent to the suit at Rs. 11034 per annum so far as plot L(i) (b) (in respect of which it dismissed the suit) is concerned. This it did on the basis of the Commissioner's report, Ext. U dated 3-9-1953. On the basis of the Commissioner's report, Ext. BL dated 2-6-1958, it assessed profits subsequent to the suit so far as the plot L(i)(a) (in respect of which it decreed the suit) at Rs. 20159 per annum. And, apparently by deducting the rate of past profits assessed in respect of plot L(i)(b) from the Rs. 5000 (fanams 35625) claimed in the plaint for the entire suit property, it arrived at the figure of Rs. 1608 at the rate of past profits in respect of the plot L(i)(a). Thus, according to the findings of the lower court, profits prior to the suit in respect of the entire property would be Rs. 5000 per annum and profits subsequent to the suit would work out to Rs. 31,193 per annum.

19. We think it would be proper to adoptthese figures, at any rate so far as profits up todate are concerned. For, while on the onehand, it is not urged on behalf of the plaintiffthat the past profits should be assessed at anything higher than the Rs. 5000 per annum thelower court has awarded, it has not been statedon behalf of the 1st defendant that, in respectif future profits, the mode of computation madeby the Commissioners and by the lower courtis wrong. The criticism is that they had nodata whatsoever before them and that the Commissioners themselves have frankly stated thattheir compulation was guess work. This criticism, it seems to us, is founded on a mistranslation of the Malayalam word, ' ' which, inits ordinary sense, no doubt means 'guess' butwhich has several shades of moaning, and, inthe particular context in which it has been usedby the Commissioners we have no doubt means,roughly 'estimate' a sense in which even theword 'guess' is often employed at least in colloquial usage. After all, all that a Commissionercan do in such a case is only to make arough estimate, especially when, as in this case,many of the profit yielding improvementseffected by the plaintiff are no longer in existence. Having regard to the primary definitionof 'mesne profits' in Section 2(12) of the Codeas, 'those profits which the person in wrongfulpossession of such property actually received'we have no doubt that it was for the 1st defendant to supply the data required-- Section 106of the Evidence Act. But the 1st defendant contumaciously refused to supply the datain disobedience of an order made by the courton 25-6-56, and, certainly, it does not lie in itsmouth to complain of any want of data. Dw. 1stated in this evidence that the 1st defendantwas keeping regular accounts of the income derived by it from the property from year to year,and, by its order already referred to, the lowercourt directed the 1st defendant to producethose accounts. That order was ignored andShe lower court does not appear to have takenany steps to enforce it. The inference is legitimate that the accounts, if produced, would haveshown an income not less than the estimatemade by the Commissioner.

20. We might mention that, in computing profits, the lower court and the Commissioners have taken care not to include profits due to improvements made by the 1st defendant.

21. The lower court has observed in paragraph 29 of its judgment that, as against the 1st defendant, the plaintiff would be entitled to mesne profits (if at all) only from the data of tender of the value of the improvements effected by the 1st defendant, which in para. 34 of its judgment, is assessed at Rs. 53085. Apparently it was of the view that the plaintiff was bound to pay the 1st defendant compensation for improvements as a condition precedent to obtaining possession. Here it was clearly wrong, for the 1st defendant being a rank trespasser is not entitled to such compensation; and this principle applied in Rev. Fr. K. C. Alexander v. State of Kerala, 1965 Ker LJ 858: (AIR 1966 Kerala 72) against this very plaintiff must here be applied in his favour.

22. It is pointed out on behalf of the 1st defendant that the claim made in the plaint in respect of mesne profits is only at the rate of Rs. 5000 per annum and it is contended that the decree cannot award anything more. This is to misunderstand the nature of the claim for mesne profits made in this particular case and the nature of such a claim in general. Having regard to the definition of 'mesne profits' in Section 2(12) of the Code, it is apparent that mesne profits are something which a plaintiff cannot evaluate and which it is solely for the court to determine on the evidence before it. As in a suit for an account, the plaintiff can only mention rough figure as the amount which will be found due to him, and that is why the second paragraph of Order VII Rule 2 of the Code makes an exception to the general principle laid down in the first paragraph that in a suit for money the plaint shall state the precise amount claimed and says that when the claim is for mesne profits, or for an amount which will be found due on taking unsettled accounts, the plaint need only state approximately the amount sued for. Section 11 of the Court Fees Act, 1870 makes the position even clearer. It shows that the claim in a suit for mesne profits is only a rough estimate even if a precise amount is stated and that it is for the court to ascertain is the true amount. And this can be in excess of the amount claimed. For, it says that in suits for mesne profits or for an account, if the profits or amount decreed are in excess of that claimed, the decree shall not be executed until the difference in court fee is paid, In this particular case, the relief sought in respect of mesne profits (by prayer No, 2 in the plaint) is that the court should award all profits received by the defendants from the property, both before and after the institution of the suit, at the rate estimated by the plaintiff at 35625 fanams (Rs 5000) per annum. This, it seems to us, is just what is required by Order VII rule 2 of the Code.

23. The price of commodities has increased enormously since the Commissioners estimated the profits in 1953 and in 1958. But the plain-tiff is content to receive mesne profits at the rate awarded by the lower court up to the date of the decree of this court. Profits accruing thereafter we leave to be determined by the lower court under Order XX rule 12 of the Code. The profits, we may add, will bear interest at six pet cent per annum from the respective dates of their accrual.

24. There remains only the question of compensation for waste. With regard to this, there was no express allegation of waste in the plaint, but, prayer No. 3 therein was for a decree for compensation for waste, should it be found in the course of the trial that the defendants had destroyed any of the improvements effected by the plaintiff. And, in paragraph 7 of the replication filed by the plaintiff there was the definite allegation that the 1st defendant had destroyed rubber trees, pepper vine, and other plantations made by the plaintiff.

25. No objection was taken to the frame of the prayer tor compensation for waste, that it did not state the precise amount claimed, or that it included, as the court below construed it to include and we have no doubt both sides understood it to include, a claim for waste committed subsequent to the suit. We think that a claim for waste, in respect of property in the possession of another and to which plaintiff has no access, stands on much the same footing as a claim for mesne profits. The plaintiff has no means of ascertaining and assessing the waste and he can only leave it to the court to ascertain and determine the compensation due. Therefore, he can hardly be expected to make a precise claim; he can only make an approxi-mate claim as in the case of mesne profits; and that no amount whatsoever was mentioned in the present plaint is an objection which the 1st defendant should have taken at the trial but which he did not take. The principle under-lying the rule (in exception to the general rule that an adjudication is as on the date of the institution of the suit and takes no note of subsequent events) that, in a suit for possession or for money, the court can award profits or interest accrued subsequent to the institution of the suit, seems to be that a successful plaintiff should not suffer by reason of the delay in deciding the suit and should, as far as may be, be put in the position he would have occupied had he been given the relief he was entitled to on the very date he sought it. That principle, it seems to us, would apply equally to waste pendente lite in a suit for possession. Were possession given on the date it is sought there would he no question of the defendant committing waste thereafter. And, in any case, the property for which a plaintiff sues in a suit for possession is the property as it is on the date of the suit, and, if the defendant subsequently diminishes its value by acts of waste, we think it should be possible for the court in case it decrees the suit, to compel the defendant to make good the difference so that the plaintiff gets, at least in value what he is entitled to get.

26. The lower court had before it the Commissioners' reports, Ext. M dated 16-7-1112 (27-2-1937), Ext. U dated 3-9-1953, Ext. BL dated 2-6-1956 and Ext. XIV dated 6-2-1959 containing a detailed enumeration (with the age) of the plantations and other improvements in existence on the suit property on their respective dates. (The first of. these, as we have seen, was prepared in some other case, but the Commissioner, examined as Pw. 10, has testified to the truth of the statements therein and he has been duly cross-examined. The report must therefore be regarded as part of his testimony and the criticism that it is not evidence in this case seems to us unfounded). By a comparison of these reports the lower court has worked out the improvements, trees and other plantations, which were in existence on the suit property in 1112 (1936-37) (when Ext. M was prepared) but which were missing when Exts. U, BL and XIV were prepared, as also the approximate age of these improvements in 1115 (1939-40) when the 1st defendant entered on the land. So far as plot L (i) (a) is concerned it has assessed the value of the missing improvement at Rs. 1,06,411 in accordance with the Commissioner's report, Ext. BL, and, so far as plot L (i) (b) is concerned, a statement has been filed before us by counsel for the plaintiff showing the value of the missing improvements as Rs. 1,00012/- worked out on the same basis. The only criticism advanced against this mode of determining and assessing the waste is that there is no evidence to show that the trees and other improvements in existence in 1112 (1936-37) were in existence in 1115 (1939-40) at the time of the 1st defendant's entry. But, having regard to the nature of the improvements chiefly coconut, arecanut, jack, rubber and mango trees and pepper vine -- and their age we think it would be reasonable to presume that the improvements were in existence in 1115 (1939-40), there being no evidence to the contrary. (See Illustration (d) to section 114 of the Evidence Act. It is hardly likely that, while in possession, the plaintiff would have destroyed such improvements effected by him.

27. The lower court has disallowed the plaintiff's claim for the value of the crops alleged to have been stolen on 27-2-1115 (13-10-1939) and this claim has not been pressed before us.

28. We allow the appeal. In addition to the decree awarded to him by the lower court against defendants 3 to 6, the plaintiff will have a decree against the 1st defendant:

(1) for possession of the entire property in suit, namely the plot marked L (i) in the plan Ext. L;

(2) for mesne profits from 30-2-1115 (16-10-1939), the date of the 1st defendant's trespass, till 27-2-1118 (13-10-1942) the date of the institution of the suit, at the rate of Rs. 5000 per annum, and, thereafter, up to this date, at the rate of Rs. 31, 193 per annum with interest on each year's mesne profits at six per cent per annum from the date of its accrual;

(3) directing an inquiry by the lower court regarding mesne profits from this date under Order XX rule 12 (c) of the Civil Procedure Code up to the time contemplated by that provision and the passing of a final decree against the 1st defendant accordingly;

(4) for a sum of Rs. 2,06,423 as compensation for waste with interest at six per cent per annum on that sum from this date; and

(5) for costs both in this _ court and in the court below. These costs will not however include the court fee payable to Government on the plaint and the memorandum of appeal. These amounts will be paid by the 1st defendant and will, of course, be a first charge on the subject-matter of the suit.


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