1. This is an appeal by the plaintiff from a decision of the learned District Judge of the Twenty four Parganahs modifying a decision of the Subordinate Judge at Alipur. The present suit was instituted as long ago as the 9th April 1906, and is, therefore, slightly more than eleven years old to-day, and I think that the delay in the proceedings casts no credit either on the Courts or on the parties engaged in the litigation. The suit was a suit for possession brought by the plaintiff as the assignee of a lease granted by the defendant No. 3 in the month of June 1699, and the suit was principally brought against the contesting defendant who had obtained a lease from the same lessor in August 1899, his property adjoining the property let out to the plaintiff's predecessor-in-title. The case as decided by the learned Judge of the lower Appellate Court in the judgment now under appeal is this :-The learned Judge came to the conclusion that the defendant was acting in good faith when he encroached upon and cleared the lands of the plaintiff and that he had done so in the belief that the property was included in his share and that, so far as I gather from the reasons given by the learned Judge, was partly, if not, largely, due to the failure of the plaintiff or his predecessor to fulfil one of the terms of the lease which was granted to him, namely, that the boundaries should be demarcated between the plaintiff's predecessor and the defendant. But the learned Judge made a finding that the evidence did not establish that the plaintiff or his predecessor-in-interest were aware of the encroachment that had been made by the defendant. The learned Judge, however, seems to have considered that that point was immaterial and he declared a charge on the property in favour of the defendant and declared the plaintiff's right thereto subject to the charge so created. The plaintiff appealed against that decision.
2. The first point is whether the learned Judge was right in the view that he took, namely, that having come to the conclusion that knowledge of the plaintiff or his predecessor had not been established to the satisfaction of the Court, whether the mere fact that the defendant had encroached and spent money in good, faith was sufficient to entitle him to a, charge on the plaintiff's property, The case is not governed by Section 51 of the Transfer of Property Act, but it comes within the general rule as laid down in the well-known case of Ramsden v. Dyson (1866) 1 H.C. 129; 12 Jur. (N.S.) 506; 14 W.R.926. That, rule has been adopted and followed in India, in more than one ease. The, fact that the learned Judge found that the plaintiff or his predecessor had no knowledge or that at any rate, the evidence did pot establish such knowledge is sufficient to take the present case put of that rule, and, there fore, the judgment appealed from cannot be supported on the ground on which the learned Judge rested his decision. But the case does not rest there. There are other provisions in the law in this country governing the obligations of person enjoying the benefit of a non-gratuitous Act Section 70 of the Indian Contract Act is a statutory enactment with reference thereto. That section provides that where a person lawfully does anything for another person or delivers anything to him not intending to do so gratuitously and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore the thing so done or delivered. It is argued on the part of the plaintiff that this section only applies when the person lawfully doing the thing for another person knows who. the other person is. There is no warrant for such limitation being put on the section and the illustrations to the section negative the view that the person lawfully doing the thing for another person knew the name of the other person. It is quite clear that the two illustrations presuppose that the person doing the thing did not know the name. The first illustration of the tradesman having the goods at the wrong, house is a clear case where the tradesman, did not know the name of the person, or, at any rate, if he knew his name, he, mad$ a mistake as to the person bearing that name. There is no foundation for the argu-ment put forward by the learned Vakil for the appellant as regards the meaning of this section. The question is whether the present case comes within the terms of that section. The section is very wide and, of course, there must be some limitation. But it cannot be suggested in the present ease that the clearing of the jungle was not done lawfully. It is quite clear from the findings made by the learned Judge that the defendant did not intend to do so gratuitously. The evidence also shows without doubt that the plaintiff has enjoyed the benefit of the money laid out by the defendant in clearing the jungle and making the land fit for cultivation. I think the case clearly comes within the terms of Section 70 of the Indian Contract Act. The difference between Section 51 of the Transfer of Property Act and Section 70 of the Indian Contract Act is that, in cases coming under Section 51 of the Transfer of Property Act and under the rule laid down in Ramsden v. Dyson (1866) 1 H.L. 129 : 12 Jur. (N.S.) 506 : 14 W.R. 926 the defendant gets a charge on the property, but, in cases under Section 70 of the Indian Contract Act, the plaintiff is bound to make compensation to the defendant for the amount spent; and, therefore, the decree in this case, instead of declaring a charge in favour of the defendant, should declare that the plaintiff is entitled to recover possession upon payment of the amount that was found to be due to the defendant by the learned Judge of the lower Appellate Court. I think, on the findings made by the learned Judge the defendant is entitled to recover the money which he has laid out in improving and rendering fit for cultivation the land of the plaintiff. If the defendant be deprived of the amount spent by him on the land, it will be a great hardship on him. The argument that has been put forward on behalf of the plaintiff-appellant that this is, in fact, a case of the defendant having improved his own land has no foundation. The land was dense jungle and had no Value unless and until the property was cleared and made fit for cultivation. It is not suggested that the property could have been cleared and made fit for cultivation at any lesser sum. If the defendant loses the benefit of the money spent by him for clearing this considerable piece of land, it would be a great hardship. Therefore, on the findings made by the learned Judge of the lower Appellate Court, I think the case comes within the terms of Section 70 of the Indian Contract Act and the plaintiff is entitled to obtain the decree given in bis favour by the lower Appellate Court, subject to the variation I have mentioned.
3. Two other points were raised in this appeal which were touched upon somewhat lightly. It is hardly a matter of surprise when we find that the points were not referred to in the judgment of the lower Appellate Court. The first point was that, in ascertaining the amount of compensation allowed to the defendant, the defendant ought to have been charged by way of mesne profits. The point was not referred to in the judgment of the learned Judge of the lower Appellate Court and presumably for the reason given in the Munsif' judgment, namely, that, if the defendant be charged by way of mesne profits, he ought to be allowed interest on the amount he laid out. It is sufficient to say that the point was not raised in the Court of Appeal below, and it is much too late to raise it now in this Court in second appeal. The second point was that the defendant ought to have been also charged with the value of the timber that was cut and removed from the land in order to make it clear. There is nothing in the judgment of the lower Appellate Court about this point at all. We do not know whether the timber was of any value or whether it was merely under growth which was wholly valueless and would fetch nothing and would rather require money to be spent to remove it from the land. The point was, however, not raised in the Court of Appeal below and it cannot be taken here now ' in second appeal.
4. In the result, the judgment appealed from must be affirmed and the present1 appeal dismissed with costs, subject to the' variation that I have already mentioned.
5. I agree.
6. This appeal is not pressed and is accordingly dismissed with costs.