TMI Blog1963 (2) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... intiffs built a house on it, and on 1-12-1956, they orally leased out the house to the 1st defendant on a monthly rent of ₹ 3/-; and the 1st defendant has since then been living in the property with his wife, the 2nd defendant, and his father, the 3rd defendant. However, in reply to a notice to quit issued by the plaintiff, the 1st defendant denied the lease and set up title in himself. Hence the present suit, based on title, in which the plaintiffs claimed a decree declaring that they were entitled to and were in possession of the land and the building and for the recovery of the building from the hands of the defendants. The plaintiffs also asked that, in case it should be found that the defendants were in possession of any part of the land, they should also be given a decree for possession of the part. 3. The 1st defendant alone contested the suit -- the remaining two defendants may therefore be ignored and I shall hereafter refer to the 1st defendant as merely the defendant -- and his case was that the house in his occupation was not on the plaintiffs' land and that the suit property was not the property allotted to the plaintiffs in the partition under Ext. P-3. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf to his task with greater understanding than that displayed by the Commissioner appointed by the trial Court, and, on the basis of the survey plan of Survey No. 1814/A, the survey measurements, and the partition deed Ext. P-3, he prepared the plan, Ext. C-2, showing the plots allotted to the several shares under Ext. P-3 and locating the house in dispute. This plan and Ext. C-1, the report accompanying it, showed that no part of the house was in the plot allotted to the plaintiffs and marked as 10 in the plan; that the best part of the house stood on the plots marked 5 and 6 allotted to other sharers; and that the rest of it was in the plot marked 4, the 11 cents allotted to the defendant's predecessor, Raghavan Pillai. 6. The lower appellate Court declined to pronounce on the question of title to the land on the ground, scarcely supportable, that title could be decided only in the presence of all the sharers, although all that was called for was a decision as between the plaintiffs and the defendant. It agreed with the trial Court in disbelieving the lease set up by the plaintiffs; and, agreeing also with its finding that the house in dispute was built by the plaintiffs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession by the owner of the land, the suit should be dismissed in so far as the building is concerned. But that is not so. And the extent to which the authorities go in applying the rule that in India a building can be owned separately from the land, to a case where a person has unauthorisedly built on the land of another is that where that person suffers a decree in ejectment he must, at the option of the owner of the land, be entitled to demolish and take away the materials of the building leaving the land undamaged, or, in the alternative, be paid the value of his building as compensation. Indeed, it is possible for a building in the true sense of the word to be owned by one person while the land on which it stands is owned by another if the person who owns the building owns also the right to the support of the land. Such a case might, perhaps, arise where the land is transferred apart from the building, but, even in such a case, it is to be noted that it was observed in at p. 138 that the owner of the land would have the right to call upon the owner of the building to remove the building and that, if the owner of the building did not remove it, he would lose. I do not think ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has constructed with his own funds on the property leased, much less recover possession of it. On what principle then can a trespasser do so? 9. It is said that the decision in 1958 : AIR 1958 SC 789 shows that there can be a decree for possession of a building apart from the land on which it stands. Possibly there can be, although in that case actual possession was not decreed and all that the plaintiffs were given was a declaration regarding the ownership of the building and of the right to recover rents and profits therefrom. There was also an injunction restraining the defendants from interfering with the collection of rents and profits by the plaintiffs from the tenants in actual occupation of the building. It is also to be noted that both the building and the land on which it stood belonged to the plaintiff trust, and the difficulty arose only because of the statute which prohibited the eviction of the defendants, who were lessees of the land, from the land. Their Lordships found that the building was not subject-matter of the lease and did not come within the prohibition in the statute, and even if a decree for actual possession of the building were passed, it could well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject-matter of their suit. But, the plaint describes the subject-matter of the suit as the 33 cents of land allotted to the plaintiffs under Schedule 10 of the partition deed, Ext. P-3. The Commissioner has located this 33 cents of land and has, as I have already said, marked it as Plot 10 in his plan, Ext. C2. Therefore, it is safe to proceed on the basis that this plot, marked 10 in Ext. C2, is the suit property. 12. The plaintiff's title is based on Ext. P-3 which is the root of the 1st defendant's title as well, and, unless it is shown that the Commissions erred, it necessarily follows that the plaintiffs have title to the plot marked 10 in Ext. C2 and to nothing more. In the lover appellate Court the plaintiffs did file an objection to the Commissioner's report and plan. But beyond making vague and entirely unsubstantiated allegations of bias and dishonesty against the Commissioner, the objection does not even attempt to say in what respect the Commissioner's report and plan erred. The plaintiffs could, if they wanted to, have obtained leave from the appellate Court to adduce evidence to substantiate their charges against the Commissioner and to show ..... 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