1. This revision petition arises out of proceedings of the Court of Small Causes, Madras, under Section 41, Presidency Small Cause Courts Act.
The respondent, Sri Tiruvalluva Nainar temple, leased a certain vacant land to the petitioners for agricultural purposes. They erected certain huts on the land. The landholder i.e., the respondent terminated the tenancy and, in order to recover possession of the property, applied under Section 41. Presidency Small Cause Courts Act for delivery of possession of the property. Of the petitioners, the first petitioner admitted the claim of the temple for possession of the property and the second petitioner was ex parte.
The application was allowed and the bailiff was directed to deliver possession of the property to the respondent. When the bailiff went to deliver possession of the property, he found there were four huts put up by the petitioners on the land and, as there was no order directing removal of the huts, he declined to remove them and deliver possession to the respondent. Thereafter, the respondent filed an application to direct the bailiff to remove the four huts put up by the petitioners on the suit land and deliver vacant possession of the suit land to the respondent.
2. Though in the application under Section 41 of the Act, the petitioners raised no dispute in this application, however, they raised the contention that the Court had no power to direct the bailiff to remove the huts and put the landlord in vacant possession of the land. In other words, their contention was that the Court can no doubt direct delivery of possession but the Court had no machinery open to it to make effective its own order and to enforce it. The learned Small Cause Judgeconsidered that the situation of that court was not so helpless as contended by the present petitioners and held that it had ample jurisdiction todirect its own officer, the bailiff, to remove thehuts and to deliver vacant possession of the land to the landlord.
3. In this revision petition, it was strenuously contended that the court had no jurisdiction to issue a direction to the bailiff to remove the huts and deliver vacant possession of the land, for, according to the learned counsel for the petitioners, the machinery provided under the Small Cause Courts Act was defective in that no provision to meet such a contingency was made in the Act.
4. The question is whether the Court had jurisdiction to make effective its own order or not. Section 41 of the Presidency Small Cause Courts Act has only a limited operation and applies only to cases where the land or immoveable property was previously in the possession of a tenant or in the possession of a person holding possession of the land with the permission of the owner and an application could be made after termination of the tenancy or the determination of the permission, which was granted to the person in possession. Under law as provided in the Transfer of Property Act, Clause (h) of Section 108 after the determination of the lease, the lessee is given the right, while he is in possession of the property, to remove all things which he has attached to the earth. This right however enures to him so long as he is in possession of the property leased but not afterwards. Notwithstanding the determination of the lease, so long as he is in possession of the property, he is entitled to remove it but, if he leaves the property, he has no right to the property and remove it and the fixtures become the property of the lessor.
Under this principle of law, when once an order for possession is made after the termination of the tenancy under Section 41 of the Act for delivery of possession of the property, it is open to the lessee in possession to remove the articles before he leaves possession of the property. If he does not, the lessor is entitled to delivery of possession of the property along with the fixtures, i.e., the huts.
5. In this case, there is no evidence that the lessees after they admitted the right of the landlord to obtain possession of the property, continued in possession of the property but that apart I think there is ample power in the Court to direct its own officer, the bailiff, to remove if necessary the huts and to deliver vacant possession of the property.
6. under Section 48, Presidency Small Cause Courts Act, the provisions of the Civil Procedure Code are made applicable to all proceedings under Chapter VII. It states that in all proceedings under this Chapter, the Small Cause Court shall as far as may be and except as herein otherwise provided, follow the procedure prescribed for a Court of first instance by the Civil Procedure Code. The machinery provided therefore under the Civil Procedure Code for delivery of possession of immoveable property in cases where a decree for possession was granted, is attracted by virtue of Section 48 to proceedings under Chapter VII of the Provincial Small Cause Courts Act.
The relevant provisions in the Code are contained in Order 21, Rule 35 and Rules 97 onwards. Rule 35 provides for delivery of immoveable property in respect of which there was a decree for possession. It provides that delivery of possession should be given to the party to which it has been adjudged or to such person as he may appoint to receive delivery on his behalf and power is given, if necessary, to remove any person bound by the decree who refused to vacate the property. Rules 97 onwards provide for the procedure to be adoptedin cases where there is resistance to delivery of possession to the decree-holder. If the tenant had continued in possession of the property alter an order under Section 41 of the Presidency Small Cause Courts Act was made, it is open under this proviso to remove the petitioners from possession of the land. If before their removal from possession of the land, they do not take away the fixtures, they would have no right to the fixtures as provided by Section 108(h) of the Transfer of Property Act.
The bailiff may, therefore, be directed to remove the petitioners from the possession of the property. It is open to the petitioners to claim at that time that they would remove the materials i.e., the superstructures or they may leave them there. If they leave them, the bailiff is entitled to put the landlord in possession of not only the land but also the huts as the tenants, in that event, would lose their right to claim removal of the huts. If, therefore, the tenants do not voluntarily remove the huts and if the landlord desires that he should get vacant possession of the property, I think the order directing possession implies and carries with it the power to give possession of the property, which is ordered to him after removing the huts if necessary. The possession ordered is vacant possession and the Court is bound to give effect to that order by directing its own officer, the bailiff, to remove the huts if necessary, and if they are not removed by the tenants.
The very power conferred upon the Court to deliver possession of the properly necessarily carries with it the powers to make effective that possession and enjoins the duty to give vacant possession of the land. Even in cases where there is a decree for possession and not a summary order like an order under Section 41, Presidency Small Cause Courts Act, no specific provision is found in the Code, whereby the plaintiff in the action who claims vacant possession of the land can have the superstructures removed on the land fixed either by a trespasser or a person bona fide believing that he was the owner of the land and effected improvements like construction of superstructures. In such an event, it has been established by the Privy Council in the well known case -- 'Vailabhdas Naranji v. Development Officer, Bandra', AIR 1929 PC 163 (A), that if a person bona fide believing that he is the owner of the land constructs a building, the building continues to belong to such person notwithstanding that it is fixed to the land. The ownership in the superstructure continues in that person and does not pass to the owner. The position will be different if the person raising the superstructure is a trespasser.
Lord Carson dealing with this question at p. 593 pointed out the distinction between English law and Indian law on the point and adopted the principle enunciated by Barnes Peacock C. J. in -- 'Thakoor Chunder v. Ramdhone Buttancharjee', 6 WR 228 (B) where that learned Judge observed:
'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 a 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.'
It, therefore, follows that it is open to a decree-holder in such a case either to allow the person, who raised the superstructure to remove it or if he retains it to pay compensation for it. But the ownership in the superstructure does not pass automatically to the owner of the land but continues in the person, who raised the superstructure.
But in the case of a landlord and tenant, the law is as stated above, embodied in Section 108(h), Transfer of Property Act and it is that that must govern the rights of the parties in this case. Where therefore a Court directs by a decree or order vacant possession of the land, that decree could be made effective by directing its own officers to remove the superstructures in the property and deliver vacant possession of the properties to the decree-holder. It is unnecessary to have any specific power in that behalf and it is common knowledge that, as a matter of fact, in the execution department in the case of suits, this power is exercised in every case in which the question of vacant possession arises. In my opinion therefore the power to remove the huts is an incidental necessary and ancillary power to the power to deliver possession of the property. If, however, there is obstruction by the tenants, the machinery provided by Rules 97 onwards has to be followed and the obstruction must be removed.
7. In my opinion, therefore, the view taken by the learned Judge of the Small Cause Court is correct and this civil revision petition is dismissed with costs. Petition dismissed.