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Mohammed Abdul Kadas and ors. Vs. the District Collector of Kanyakumari and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal No. 315 of 1964
Judge
Reported inAIR1972Mad56; (1971)2MLJ267
ActsTravancore-Cochin Land Conservancy Act, 1951 - Sections 10 and 19; Transfer of Property Act - Sections 108; Code of Civil Procedure (CPC), 1908 - Sections 80
AppellantMohammed Abdul Kadas and ors.
RespondentThe District Collector of Kanyakumari and ors.
Cases ReferredSirkar v. Mahadeva Iyer
Excerpt:
.....cannot claim compensation after actual eviction from land.; a trespasser has no right to claim the value of improvements when the trespass is made with the knowledge that he has no right to the property. but one, who in good faith enters upon property believing he has a right to be paid the value thereof before being evicted, provided the improvements are consistent with the nature of the property and are not unreasonable. the payment of compensation could be claimed only before the person is evicted. trespassers are not entitled to claim value of improvements effected by them after eviction from the property. trespassers on government lands are subject to the relevant statutory provisions and they cannot claim value of improvements not only on the ground that the trespasser on..........act, 1951 (act xix of 1951) (hereinafter referred to as the act) on the ground that the suit properties formed part of survey nos. 1610, 2363 and 1628 of ezhudesom village, the said lands being part of river poramboke. the learned subordinate judge of nagercoil, on a consideration of the evidence in this case found that the plaintiffs have failed to prove that the suit lands formed part of the holdings of the first plaintiff. p.w. 1 is the power of attorney agent and son-in-law of the second plaintiff. the learned subordinate judge has rightly pointed out that his knowledge of the suit properties could be only from the time of his marriage in 1119, m. e. and that he does not know the details of the suit properties, such as the survey number, sub-division etc. p.w. 2, s......
Judgment:
1. Appellants and respondents 2 and 3 are the legal representatives of the deceased Osan Pillai who filed the suit for a declaration of his title to the properties involved in the L. C. Cases 3, 4 and 5 of 1957 of Ezhudesom village, for possession of the said properties with mesne profits at Rupees 1,500/- per year from the date of the suit till recovery of the properties, for recovery of Rs. 1,780.63/- paid as fine and prohibitory assessment and in the alternative for recovery of Rs. 1,5000/- as value of improvements with interest at 6 per cent, per annum from the date of the suit till the date of recovery.

2. Appellants 1 and 2 and one Mohammed Pathummal were brought on record as the legal representatives of the deceased Osan Pillai. But subsequently, Mohammed Pathummal died and there were rival claims by Appellants 3 and 4 on the one hand who claim as heirs and respondents 2 and 3 on the other who claim under a will. There appears to have been an agreement between the parties. But as pointed out by the trial Court, the dispute between Plaintiffs 5 and 6 (respondents 2 and 3) and plaintiffs 7 and 8 (appellant 3 and 4) is left open to be determined in separate proceedings between them.

3. Osan Pillai claimed the suite properties as forming part of Survey Nos. 1609, 2362 and 1629 of Ezhudesom village registered in his name. But proceedings were taken by the first respondent herein. District Collector of Kanyakumari, in pursuance of the notice under Section 10 of the Travancore-Cochin Land Conservancy Act, 1951 (Act XIX of 1951) (hereinafter referred to as the Act) on the ground that the suit properties formed part of Survey Nos. 1610, 2363 and 1628 of Ezhudesom village, the said lands being part of river poramboke. The learned Subordinate Judge of Nagercoil, on a consideration of the evidence in this case found that the plaintiffs have failed to prove that the suit lands formed part of the holdings of the first plaintiff. P.W. 1 is the power of Attorney agent and son-in-law of the second plaintiff. The learned Subordinate Judge has rightly pointed out that his knowledge of the suit properties could be only from the time of his marriage in 1119, M. E. and that he does not know the details of the suit properties, such as the survey number, sub-division etc. P.W. 2, S. Padmanabha Iyer, is an advocate practicing in Nagercoil and he was appointed Commissioner in the suit. It is true that he gave a report supporting the claim of the plaintiffs. But the learned Subordinate Judge has dealt with his evidence in paragraph 13 of his judgment and he did not rely on it.

A reading of the evidence of P.W. 2 Padmanabha Iyer is sufficient to show that the criticisms made by the learned Subordinate Judge are well-founded. He (P.W. 2), did not even locate the A. V. M. channel. He did not make any attempt to get the survey plans of the locality. Evidently he has been misled into making the report in favour of the appellants solely on the ground that the suit properties are bounded on one side by the registered lands of the first plaintiff. Learned advocate for the appellants urged that as the Commissioner's report has not been accepted, the trial Court should have reissued the commission to locate the suit properties with reference to survey plans, stones etc. But no such attempt was made by the plaintiffs in the lower court, when criticisms were levelled against the evidence of P.W. 2. Further, the finding of the trial Court that the suit properties formed part of the river poramboke is based on the evidence of P.W. 1 Subbiah Pillai, the village Officer of Ezhudesom village and P.W. 2 Samuel D. Mosa the Revenue Supervisor during the relevant period from July 1956 to March 1961. We do not therefore feel any need to reissue the commission to correctly localise the suit properties. It is abundantly clear from the evidence of D. Ws. 1 & 2 that the suit properties are in survey Nos. 1610, 2363 and 1628 of Ezhudesom village which are river poramboke lands.

4. Learned advocate for the appellants relied on the decision in Abbayya v. State of Andhra Pradesh, in support of his contention that where the plaintiffs have proved possession for thirty or forty years, it is for the Government to prove subsisting title within the period requisite for acquisition of title by adverse possession. But at the end of paragraph 14 of the Judgment, it is observed that the question is only of academic importance in view of the conclusion reached in that case that the plaintiffs had established possession and enjoyment for at least for sixty years before suit. It is only where the evidence is not sufficient to decide the question as one of fact, it is necessary to invoke such principle. In the present case, the reports on the encroachments and the mahazars prepared in respect of the same, namely, Exhibits B-7, B-9, B-12, B-14, and B-17 and B-19 show that the encroachment is about thirtythree years old and that it will be twenty years since the cocoanut trees on the encroached lands started yielding.

Though in the suit notice Exhibit A-33 the first plaintiff has stated that he has been in possession of the suit properties for more than seventyfive years, he has clearly admitted in his statement Exhibit B-10 before the revenue authorities that he has been in possession and enjoyment of the suit properties and effecting improvements for about thirtyfive years, along with the other lands assigned to him. The assignment of lands in favour of the first plaintiff was in the year 1916. Thus, the appellants have failed to prove that they have acquired title to the suit properties by adverse possession for the requisite period, which is fifty years under the law then prevailing in Travancore State. For the foregoing reasons, the appellants are not entitled to the primary relief namely, for a declaration of title and recovery of possession of the suit properties with mesne profits.

5. The learned advocate for the appellants urged that the first plaintiff is entitled to claim the alternative relief in respect of the value of the improvements, namely, Rs. 15,000/- as claimed by him. It appears from the decisions cited before us that it is the practice of computing the value of improvements in Travancore Cochin State on the basis of the capitalised income for 8 1/3 years. In Kesavan Krishnan v. Subramanian Kesavan Nambiyadiri, 24 Trav LR 54 it has been held that the correct mode of valuing improvements is to capitalise the rental at 8 1/3 years purchase. It is stated in the decision that three-fourths of the gross produce may under ordinary circumstances be taken to be the rental value. In a short notes case reported at page 13 of 1930. Trav LR it is stated that the basis of valuation of Jack trees is to take the gross yield and capitalise by 8 1/3 years on the basis of 3/4 of this amount as the net yield.

In Chentha Kunju Kurumpam v. Kali Raman 20 Trav LR 1295 it has been held that ordinarily three fourths of the gross produce multiplied by 8 1/3 might be taken to be the value of improvements. It is also stated in the decision that the gross produce must itself be arrived at after deducting one-fourth for jenmikur. In Nani Kunjukrishnan v. P. Pillai, it is pointed out that until the Act was passed on

31-10-1956, there was no statute law in Travancore governing the award of such compensation, but according to judicial decisions, the practice was to capitalise the income for 8 1/3 years in the case of cocoanut trees, jack tree etc. to deduct one-fourth of the same for tax and maintenance and another one-fourth of the share of the owner of the land and to award the balance to the mortgage or tenant as value of improvements. The learned Subordinate Judge found that the annual income from the suit properties is Rs. 1,400/- and there would be no difficulty in computing the value of improvements on the basis of the above decisions in case the first plaintiff succeeds in establishing his claim.

6. The learned Subordinate Judge has referred to several decisions recognising the right of even trespassers to claim the value of improvements so long as the trespassers acted in good faith and encroached on others land on account of bona fide mistake on his part, and not on account of deliberate intention to trespass. He however found that the plaintiffs are not entitled to the value of improvements as they have encroached on canal poramboke which will not be assigned by the Government to persons wrongfully cultivating the same. The learned advocate for the appellants rights stressed on the fact that the suit properties are adjacent to the lands in the holdings of the first plaintiff and that the first plaintiff has been cultivating the same for over thirty-five or forty years, and urged that it could not be said that the first plaintiff deliberately trespassed upon the property and that his cultivation was not due to his bona fide mistake that the lands were part of his holdings. We shall proceed to consider the claims of the first plaintiff on the footing that he planted the cocoanut trees in the honest though erroneous belief that the suit properties formed part of his holdings.

7. In Narayanan Anandan v. Raman Anandan, 1943 Trav LR 822 it is stated that a trespasser has no right to claim the value of improvements when the trespass is made with the knowledge that he has no right to the property. But one, who in good faith enters upon property believing he has a right to it and effects improvements, has a right to be paid the value thereof before being evicted provided the improvements are consistent with the nature of the property and are not unreasonable. At pages 842 and 843 of the decision, the various categories of trespassers and their rights are mentioned. But it is clear from the last clause, that the case of trespassers on Government lands must be governed by the rules regulating the dispossession and assessment of Government lands under the law. Further, it is also clear from the decision that the payment of compensation could be claimed only before the person is evicted in Janardhanan Nair v. Nanu, 1945 Trav LR 294 (FB) it is stated that trespassers are not entitled to claim value of improvements affected by them after eviction from the property, and are subject to the relevant statutory provisions and that they cannot claim value of improvements from the Government. Thus, in the present case, the first plaintiff will not be entitled to claim the value of improvements not only on the ground that the trespasser on Government land is not entitled to claim the value of improvements, but also on the ground that such claim even it justified should be made before eviction.

8. Thiru G. Ramaswamy, the learned Additional Government pleader relied on the decision in K. C. Alexander v. State of Kerala, as a direct decision negativing the claim for value

of improvements, or even the right to remove the trees as put forward by the appellants. The entire case law has been discussed in this decision. It is stated by way of conclusion at page 76 of the decision that 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 that of a tenant. It is then pointed out that if this view is correct, 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. in view of the decisions of our High Court commencing from Vasudevan Nambudripad v. Valia Thathu Achan, (1901) ILR 24 Mad 47 (FB) that the maxim quicquid plantatur solo solo cedit, whatever is affixed to the soil belongs thereto, applies not merely to buildings, but to trees as well, it is not possible to accept this decision that even during the pendency of the lease, the tenant who planted the trees is not the owner thereof. In Thakoor Chander Poramanick v. Ramdhone Bhattacharjee, (1866) 6 Suth WR 228 Sir Barnes Peacock observed as follows:--

"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."

This passage is relied on in (1901) ILR 24 Mad 47, as the basis of the decision that the maximum "quic quid plantatur, solo solo cedit" does not apply in India. The following passage in (1901) ILR 24 Mad 47 is relevant for our present discussion:--

"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 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 tree could be forbidden."

In Krishnacharya v. Anthakki, 29 Mad LJ 314 = (AIR 1916 Mad 939) a Bench of this Court has decided that in the absence of a provision in the lease, a Mulgeni tenant is entitled to cut and appropriate the trees on the holding, whether planted by him or of spontaneous growth, so long as the trees growing on the land at the date of the lease are not interfered with, and the nature of the holding is not changed. The observation in Rustonji Edulji Shet v. The Collector of Thana, (1866-67) 11 Moo Ind App 295 (PC) that the trees upon the land were part of the lands and the right to cut down and sell them was incidental to the proprietorship of the land has been explained in the above decision as having reference to trees standing in the land when the lease was made. The decision inVelayudha Maistry v. Mari Ammal, 1941-1 Mad LJ 161 = (AIR 1941 Mad 379) is relevant for the present discussion. It was held in that decision that trees planted under a licence do not go with the land and the person who planted the trees is entitled to cut and remove them but he should restore the land in the condition in which it was before the trees were planted. The observations of Sir Barnes Peacock in (1866) 6 Suth WR 228 and the consideration of the same by the Full Bench of this Court in, (1901) ILR 24 Mad 47 have been considered in detail in this decision, and it is pointed out that the doctrine of English law that whatever is built upon land or grown upon land goes with the land does not apply strictly to India.

We may incidentally point out that all these decisions relate to rights of tenants to cut and remove trees planted by them during the subsistence of the lease. But our only object in referring to these decisions is to show that no distinction is made as regards the application of the maxim quic quid plantatur solo solo cedit whether the improvements relate to buildings or to trees planted in the lease hold lands. In Panna Lal v. Gobardhan Das, AIR 1949 All 757 the applicability of the above maxim was considered and the learned Judge who decided the case was inclined to take the view that so long as bona fide trespasser is not evicted, he remains the owner of the trees or the improvements; but he refrained from expressing a final opinion as the point did not arise in that case. Further, it is clear from the decision that the right to the trees or the improvements exists only so long as he is not evicted. In view of the above discussions, it is not possible to subscribe to the view that the tenant has no right of ownership in the trees planted by him even during the subsistence of the lease.

9. Though the decision in (1866) 6 Suth WR 228 was with reference to buildings, it is clear from the subsequent decisions of this court, that the same principle applies to improvements effected by planting trees. In the K. C. Alexander's case, , reliance is

placed on certain passages in Mulla's Transfer of Property, fifth Edition page 695. It is stated by Mulla in his Transfer of Property Fifth Edition at page 695 that trees are part of the land, and the right of the tenant to cut them down depends upon custom and the terms of the lease. It is further stated by the same author that in the absence of a contract to the contrary, trees planted by a tenant pass to the landlord on the expiry of the lease. This will be so if the tenant does not exercise his right under Section 108(h) of the Transfer of Property Act. The decision in Jugrajsa Chunilalsa v. Umrao Singh, AIR 1950 Madh Pra 39 really proceeds on the footing that the maxim quick quid plantatur solo solo cedit applies to India. Thus, whatever doubts might be entertained about the ownership of the trees during the subsistence of the lease, there can be no doubt that the tenant will have no right to the trees after he has delivered possession of the lease hold lands. Thus, in the K. C. Alexander's case. it is rightly observed if we may say so with respect that at any rate from the date of the trespasser's dispossession, the trees vest in the state.

10. It is clear from Exhibits B-22, B-23 and B-24 that the first respondent took possession of the lands on 2-8-1960 subsequent to the order of the Collector Exhibit A-24 dated 17-7-1960. The suit was filed on 26-7-1961. There is no plea in the plaint that the first plaintiff was prevented from removing the trees planted by him before he was evicted. Hence the decision in Sirkar v. Mahadeva Iyer, AIR 1953 Trav Co 349 cannot be invoked by the appellants even if it is assumed that the decision is correct. it was held in that decision that proceedings in ejectment have recognised the right of the trespasser to remove the improvements he had made and this valuable right has admittedly been denied to the respondents by the action of the Government and in this view the decree of the lower court granting compensation for the improvements effected, was confirmed in that case. For the foregoing reasons, the appellants cannot claim the value of the improvements. We have already pointed out that the position of the appellants who are at best bona fide trespassers cannot be higher than that of a tenant. Their right if any to remove the trees planted by them should have been exercised before the first plaintiff was evicted from the Government river poramboke lands.

11. The learned Government pleader did not rightly question the validity of the notice under Section 80 of the Civil Procedure Code. He however questions the findings of the trial court as regards the plea of limitation urged by him. It is true the first plaintiff did not prefer an appeal against the adverse orders passed by the Tahsildar. It is only his tenant Gulam Mohideen Pillai, the second respondent in the eviction proceedings, who preferred an appeal. In fact, the first plaintiff who was the first respondent in the eviction proceedings on receiving notice of the appeal filed a petition questioning the competency of the appeal preferred by the tenant. But Section 19 of the Act makes provision for an appeal within one year from the date on which the cause of action arose. It could not be said that the first plaintiff did not have a cause of action to appeal against the order in Ex. A-23 which superseded the order of the Tahsildar, and in this view, the suit is within time. But it is really unnecessary to go into the question in view of our finding on the main issue on the merits of the case. For the forgoing reasons, the decree and judgment of the trial court are confirmed and the appeal is dismissed with the costs of the contesting first respondent.

12. Appeal dismissed.


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