1. This Rule is directed against a decree by which the suit of the petitioner for value of crops grown on his. land by the second defendant has been dismissed. The petitioner alleges that in execution of a decree for rent against the second defendant, he purchased the holding on the 19th May 1911, that he obtained delivery of possession through Court on the 19th August, and that the crops grown thereon by the second defendant were unlawfully cut and taken away by the first defendant on the 25th December. His contention is that as the crops were grown after his purchase by the second defendant on land, the title whereto had vested in him, the crops became his property, and he is, consequently, entitled to the value there of. The learned Small Cause Court Judge has negatived this claim and dismissed the suit; in our opinion the view taken by him is correct and his decree must be affirmed.
2. It was pointed out by this Court, in the case of Mofiz Sheikh v. Rasik Lal Ghosh 37 C. 815 : 14 C.W.N. 952 : 12 C.L.J. 248 : 6 Ind. Cas. 796, that the English law of fixtures cannot be applied in this country as based on equitable grounds. No doubt, under the mediaeval English law, as laid down in Bracton, whatever is planted, sown or built in belongs to the soil, if root has struck; or, as Britton and Fleta put it, if trees are planted or seeds sown in the land of another, the owner of the soil becomes owner also of the tree, the plant or the seed as soon as it has taken root. But that has never been the law in this country. On behalf of the petitioner, however, reliance was placed upon the text of Narada quoted in the case of Mofiz Shiekh v. Rasik Lal Ghosh 37 C. 815 : 14 C.W.N. 952 : 12 C.L.J. 248 : 6 Ind. Cas. 796, where it is stated that if a man had been residing on the ground of a stranger without paying rent and against that man's wish, he shall by no means take with him, on leaving it, the thatch and timber. It will be observed, at the outset, that this does not specifically apply to growing crops, It must further be remembered that, in the case before us, the second defendant must have continued in occupation of the land with the acquiescence of the plaintiff after his purchase. As already stated, the sale took place on the 19th May; possession was delivered to the plaintiff on the 19th August; the crops were then grown by the second defendant and remained on the land till the 25th December. During this period extending over many weeks, the second defendant must have been in actual occupation of the land, although, in the eye of law, possession might have been with the plaintiff. Neither authority nor principle can be invoked in support of the proposition that merely because the plaintiff became the owner of the land on the 19th May, and the crops were grown thereon by the second defendant after that date, the crops, as soon as they were grown, became the property of the plaintiff. The view we take is supported by the case of Lep Singh v. Nimar Khasia 21 C. 244, where, in a suit for recovery of damages for value of the fruit crops taken away by the defendant from a garden alleged to be in the possession of the plaintiff, it was held that the fact that the plaintiff was in possession was sufficient to support his title to the damages claimed. In other words, if in the present case, the second defendant had brought a suit against the plaintiff, assuming that the latter had by force removed the crops, his claim would have been successful. Consequently, a suit by the plaintiff against the second defendant for the value of the crops grown by the latter cannot be sustained. The plaintiff may possibly be entitled to mesne profits against the second defendant if she continues in occupation of the land after her title had been extinguished by the execution sale. But there was no claim for mesne profits made in the Court below and nothing in this judgment will affect the title of the plaintiff to recover mesne profits from any person who may be found hereafter to have kept him out of possession of the land.
3. The result is that this Rule is discharged with costs. We assess the hearing fee at four gold mohurs.