TMI Blog1968 (2) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... and four others for possession of 131.23 acres of land from Survey Nos. 780/1 and 780/2 of Rannipakuthy in the former. State of Travancore and for mesne profits past and future with compensation for waste. The suit lands are shown as L(1) on a map Ex. L prepared by Commissioners in CMA 206 of 1110 M.E. and proved by P.W. 10. The two Survey Nos. are admittedly Government Poramboke lands. The plaintiff claimed to be in possession of these lands for over 70 years. In the year 1100 M.E. a Poramboke case for evicting him from an area shown as L(2) measuring 173.38 acres, but described in the present suit variously as 160, 161 and 165 acres, was started under the Travancore Land Conservancy Regulation IV of 1094 M.E. (L.C. case No. 112/1100 M.E.) by Pathanamathitta Taluk Cutchery. This land is conveniently described as 160 acres and has been so referred to by the High Court and the Sub-Court. The plaintiff was fined under the Regulations and was evicted from the 160 acres. The Society applied for Kuthakapattom lease of this area on August 11, 1938. The lease was granted but has not been produced in the case. It was for 165 acres and the Society was admittedly put in possession of it on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case the claim of the plaintiff was decreased against it. The other defendants remined ex-parte in the suit and did not appeal. They have now been shown as proforma respondents by the Society. The suit went to trial on 13 issues. The main issues were. (a) whether the plaintiff was in possession of lands L(1) for over 70 years and had improved these lands; (b) whether the. first defendant was entitled to possession of any area in excess of the first Kuthakapattom for 12 years; and (c) whether the. trespass was on 13/16 October, 1939 or whether the plaintiff was evicted on July 24, 1939 by the Government from the suit land in addition to the 160 acres in respect of which action was taken in the Land Conservancy case. Other issues arose from the. rival claims for mesne profits and compensation to which reference has already been made. The suit was dismissed by the. trial Judge against the Society but was decreed against defendants 3 to 6 in respect of land L (1)(a) with mesne profits and compensation for waste. The trial Judge held that the possession of the plaintiff dated back only to 1920-21 and that he was evicted from portion L (1) (b) as per plan AZ and that the Society wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner the suit for ejectment could not lie. It may be stated here that the plaintiff had applied for an amendment to implead Government but the amendment was disallowed by the trial Judge. In 1928 the plaintiff had filed O.S. 156/1103 against the Government for declaration of possession and injunction in respect of the 160 acres of land and L(1)(b), but the suit was dismissed in default and a revision application against the order of dismissal was also dismissed by the High Court of Kerala. The suit had delayed the Poramboke case as a temporary injunction has been issued against Government. On the dismissal of that suit the first Kuthakapattom lease was granted to the Society. The next contention of the Society is that a suit in ejectment cannot lie wihout title and a prior trespasser cannot maintain the suit generally against the latter trespasser and more particularly in this case in respect of lands belonging to Government specially when the latter trespasser (even if it was, one) had the authority of the true owner either given originally or subsequently but relating back to the date of the trespass. The Society also submits that as trespass on Government land was prohibited b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot entertain. Even in the High Court the written statement was sought to be amended as late as December 14, 1965, the last day of the arguments. The application had two prayers. About the second of the two prayers we shall say something later but the amendment we are dealing with was not only belated but also an after thought. The High Court rightly points out that a defendant, who after trial of the suit for 16 years orally asks for the withdrawal of an admission in the written statement, cannot be allowed to do so. Therefore, the dispute covered the entire 131.23 acres and the Society was claiming to be in possession. The plaint had asserted that the defendants 2-6 were in possession and that defendant 2 was acting for the Society. In reply the Society claimed to be in possession. It, however, led evidence on its own behalf that L(1) (a) was not in its possession. That could not be considered in view of the admission in the pleadings. The contrary admission of the plaintiff that defendants 3-6 were in possession was cited before us as it was before the High Court. But the High Court has already given an adequate answer when it observes that the plaintiff only said he had heard th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was virtually withdrawn and the accusedwere discharged. The High Court accepted the plea that thefalse charge of dacoity and the arrest were a prelude to dispossession and a ruse to get the servants of the plaintiff out of the way. On looking into the evidence we cannot say that this inference is wrong. The Society, however draws attention to several circumstances from which it seeks to infer the contrary. We do not think that they are cogent enough to displace the other evidence. We may, however, refer to them. The Society first refers So plaintiff s application(Ex. 16) on July 28, 1939 that he was dispossessed of suit buildings and requesting that 160 acres be correctly demarcated. In other documents also the plaintiff complained of eviction from land in excess of 160 acres and dispossession from buildings. The Society submits that the evidence showed that there were no buildings in 160 acres and that only bamboo huts were to be found. The map Ex. L shows some buildings in L(2). It is more likely that as these buildings were close to the western boundary between L(2) and L(1), the plaintiff hoped that he would be able to save them as on admeasurement they would be found outsid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property. if any person is dispossessed without his consent of immovable property otherwise than in due course, of law, he or any person claiming through him may be suit recover Possession thereof, notwithstanding any other title, that may be set up in such suit. Nothing in this Section shall bar any Person from suing to establish his title to such property and to recover Possession thereof. No appeal shall lie from any order or decree Passed in any suit instituted under this section. nor shall any review of any such order or decree be allowed. It is convenient to refer to the Indian Act. According to Mr. Nambiar a contrast exists between ss. 8 and 9 of the Specific Relief Act. These Sections are reproduced below*. Mr. Nambiar submits that s. 8 refers to suits for possession other than those under s. 9, and while question of title is immaterial in suits under s. 9, under s. 8 a suit for ejectment must be on the basis of title. In other words, in a suit under s. 8 title must be proved by a plaintiff but under S. 9 he need not. Once the period of six months has been lost a suit brought within 12 years for obtaining possession by ejectment must be based on title and not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as ordered to be restored on an application made within the year where one had been ejected from land by force, provided there had not been vi clam aut precario from the ejector. The other d evi armata for ejection by armed force, was without restriction of time. Mr. Nambiar says that the same distinction exists between suits under ss. 9 and 8 of the Specific Relief Act. This is an ingenious way of explaining his point of view but it does not appear that these principles of Roman Law at all influenced law making. These principles were in vogue in early Roman Law. In the time of Justinian the two Interdicts de vi were fused and there was only one action representing both. Even the clausa about vi clam aut precario disappeared and the restriction to a year applied to both. The appeal to Roman Law ,does not, therefore, assist us. We may now consider whether ss. 8 and 9 are to be distinguished on the lines suggested. In Mulla s Indian Contract and Specific Relief Acts there is a commentary which explains the words in the manner prescribed by the Code of Civil Procedure by observing-- that is to say by a suit for ejectment on the basis of title : Lachman v. Shambu Narain (191 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spossession being proved, in spite of its finding that the plaintiff had no title and that title was in the defendant. We agree as to a part of the reasoning but with respect we cannot subscribe to the view that after the period of 6 months is over a suit based on prior possession alone, is not possible. Section 8 of the Specific Relief Act does not limit the kinds of suit but only lays down that the, procedure laid down by the Code of Civil Procedure must be followed. This is very different from saying that a suit based on possession alone is incompetent after the expiry of 6 months. Under s. 9 of the Code of Civil Procedure itself all suits of a civil nature are triable excepting suits of which their cognizance is either expressly or impliedly barred. No prohibition expressly barring a suit based on possession alone has been brought to our notice, hence the added attempt to show an implied prohibition by reason of s. 8 (s. 7 of the Travancore Act) of the Specific Relief Act. There is, however, good authority for the contrary proposition.In Mustapha Sahib v.Santha Pillai(I.L.R. 23 Mad. 179 at 182.),Subramania, Ayyar J. observes ...... that a party ousted by a person who ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 years for suits based on possession alone and that the longer period of limitation requires proof of title by the plaintiff. We do not agree. No doubt there are a few old cases in which this view was expressed but they have since been either overruled or dissented from. The uniform view of the courts is that if s. 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession. only in a suit under S. 9 of the Specific Relief Act but that does, not bar a suit on prior possession within 12 years and title neednot be proved unless the defendant can prove one. The present. amended articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, makes two exceptions to this statement and the second he states thus Probably, if the defendant s possession is wrongful as against the plaintiff, the plaintiff may succeed though lie cannot show a good title : Doe d. Hughes v. Dyball (1829) 3 C P 610; Davision v. Gent (1857) 1 H N 744. But possession is prima facie evidence is not displaced by proof of title. If such prima facie evidence is not displaced by proof of title in a third person the plaintiff with prior possession,will recover. So in Asher v. Whitlock [(1865) L.R. 1 Q.B. 1] where a man inclosed waste land and died without having had 20 years possession, the heir of his devisee was held entitled to recover it against a person who entered upon it without any title. This decision, although long, doubtful, may now be regarded as authoritative in consequence of its express recognition of the Judicial Committee in Perry v. Clissold [1907] A.C. 73. Mr. Nambiar strongly relies upon the above exposition of the law and upon institutional comments by Wiren The Plea of jus tertii in ejectment (1925) 41 L.Q.R. 139, Hargreaves Terminology and Title in Ejectment (1940) 56 L.Q.R. 376 and Holdsworth s article in 56 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has only to evict the prior trespasser and sit pretty pleading that the title is in someone else. As Erle, J. put it in Burling v. Read (11 Q.B. 904) parties might imagine that they acquired- some right by merely intruding upon land in the night, running up a hut and occupying it before morning . This will be subversive of the fundamental. doctrine which was accepted always and was reaffirmed in Perry V. Clissold. The law does not therefore, countenance the doctrine of findings keepings . Indeed Asher v. Whitlock [1885] 1 Q.B. I goes much further. It laid down as the head-note correctly summarizes A person in possession of land without other title has a devisable interest, and the heir of, his devisee can maintain. ejectment against a person who had entered upon the land cannot show title or possession in any one prior to the testator. No doubt as stated by Lord Macnagthen in Perry v. Clissold, Doe v. Barnard (supra) lays down the proposition that if a person having only a possessory title to land be supplanted in the possession by another who has himself no better title, and afterwards brings an action to recover the land, he must fail in case he shows in the course of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no right of entry at all. To summarize, the difference between Asher v. Whitlock and Doe v. Bamard is this.: In Doe v. Barnard the principle settled was that it is quite open to the defendant to rebut the presumption that the prior possessor has title, i.e., seisin. This he can do, by showing that the title is in himself; if he cannot do this he, can show that the title is in some third person. Asher v. Whitlock lays down that a person in possession of land has a good title against the world except the true owner and it is wrong in principle for any one without title or authority of the true owner to dispossess him and relying on his position as defendant in ejectment to remain in possession. As Loft in his Maxim No. 265 puts it Possession contra omnes velet praeter eur cui ius sit possessionis (He that bath possession bath right against all but him that bath the very right): See Smith v. Oxenden 1 Ch. Ca 25. A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff s and thus be able to raise a presumption prior in time. It is to be noticed that Ames (Harvard Law Review Vol. III p. 313 at 37); Carson ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d failed to prove his point. The observation does not lead to the conclusion that a defendant can prove title in another unconnected with his own estate. The case is not an authority for the wider proposition. The cases of the Judicial Committee are not binding on us but we approve of the dictum in Perry v. Clissold. No subsequent case has been brought to our notice departing from that view. No doubt a great controversy exists over the two cases of Deo v. Barnard and Asher v. Whitlock but it must be taken to be finally resolved by Perry v. Clissold. A similar view has been consistently taken in India and the amendment of the Indian Limitation Act has given approval to the proposition accepted in Perry v. Clissold and may be taken to be declaratory of the law in India. We hold that the suit was maintainable. It is next submitted that the High Court should not have given its assistance to the plaintiff whose possession was unlawful to begin with especially when, by granting the decree, an illegality would be condoned and perpetuated. In support of this case the Society relies on the provisions of Regulation IV of 1091 and other connected Regulations and rules. It points out that u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which a party must rely to succeed. In a case in which a plaintiff must rely upon his own illegality the court may refuse him assistance. But there is the other proposition that if a plaintiff does not have to rely upon any such illegality, then although the possession had begun in trespass a suit can be maintained for restitution of possession. Otherwise the opposite party can make unjust enrichment although its own possession is worngful against the claimant. It is to be noticed that the law regards possession with such favour that even against the rightful owner a suit by a trespasser is wellfounded if he brings the suit within 6 months of dispossession. We have also shown ,that there is ample authority for the proposition that even after the expiry of these 6 months a suit can be maintained within 12 years to recover possession of which a person is deprived by one who is not an owner or has no authority from him. The Society next argues that since- it has got a second Kuthakapattom we must relate it back to the original dispossession and treat it as a statutory order under the laws of Travancore. It refers us to the Travancore Survey and Boundaries Regulation of May 1942 (Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld the court frame an issue from documents which not the Society but the plaintiff had caused to be brought on file. The cases reported in Ganoo Anr. v. Shri Dev Sideshwar Ors. (26 Bom. 360.), Shamu Patter v. Abdul Kadir Ravuthan and Ors. (35 Mad. 607 P.C) and Kunju kesavan v.. M. M. Philip, I.C.S., and Ors.([1964] 3 S.C.R. 634)do not help the Society. If the plea had been raised by the Society it would undoubtedly have been countered and one does not know what use the plaintiff would have made of the document s had got marked. Therefore it cannot be said that the trial Judge was, in error in not considering the documents. This brings us to the general proposition whether the High Court should have allowed the amendment late as it was. The, plaintiff is right that the application Was made literally on the eve of the judgment. This argument is really based on delay and laches. The application has: not been made for the first time in this Court when other considerations might have applied It was made in the High Court, after the argument based on the documents on record was urged. This argument was also urged in the court of trial. The contention of the Society was thus pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment but did not feel compelled to exercise the discretion. In the second case the amendment was no doubt refused because it was asked for at the last moment but the real reason was that under it a relief of a wide and exceptional nature was granted. The point was so intricate that it required careful and timely pleading and a careful trial. In the last case the Judicial Committee relying on the leading case of Ma Shwe Mya v. Maung Mo Huaung(1921 L.R. 48 I.A. 214, 217.) held that it was not open to allow an amendment of the plaint to cover a new issue which involved setting up a new case. As against these cases, this Court in L. J. Leach Co. v. Jardine Skinner Co.([1957] S.C.R. 438.) Pungonda Hongonda Patil v. Kalgonda Shidgonda Patil([1957] S.C.R. 595) and A. K. Gupta and Sons v. Damodar Valley Corpn. ([1966] 1 S.C.R. 796) allowed amendments when a fresh claim would have been time-barred. The cases of this Court cannot be said to be directly in point. They do furnish a guide that amendment is a discretionary matter and although amendment at a late stage is not to be granted as a matter of course, the court must bear in favour of doing full and complete justice in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the second Kuthakapatttom cannot, be regarded as retroactive from the date of the grant of the first Kuthakapattom. We wish to add that the document Ex. 1 does not mention that it was to be retrospective. Now a formal document which has no ambiguity cannot be varied by reference to other documents not intended to vary it. The only other documents are Ex. 6, the order conferring the second Kuthakapattom and Ex. 7 a demand by the Tahsildar of the Pattom calculated at the same rate from the date of the first Kuthakapattom. This follows from the Rules. Any person in unlawful possession may be compelled under the Rules to pay pattom and this is what appears to have been ordered. There is also nothing to show that this was not the Tahsildar s own interpretation of the facts and the documents. We are therefore quite clear that the second Kuthakapattom must be read prospectively from the date of its grant, if, it be held that it, is valid. There are only two other matters to consider. They are the question of mesne Profits and improvements. The rate of mesne profits has already been decided and no argument was addressed to us about it. We say no more about it except, that the rate Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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