TMI Blog1959 (10) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Both the trial court and the District Judge of South Kanara in the appeal from the judgment of the trial court-- A. S. No. 153 of 1954-- have held that the land belongs to the plaintiff, and that she is entitled to recover the same with mesne profits at ₹ 75/- per year. There is nothing on record to show that these conclusions are in any way incorrect. 3. The courts below have also come to the conclusion--we think quite correctly--that the house on the property was constructed by the defendant with his own funds. The question for determination is whether he has the right to remove the materials of the house in case the plaintiff is not willing to pay him its value. 4. The trial court held that the defendant is entitled to com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adeva Iyer 1953 KLT 599 : (AIR 1953 Trav-Co. 349) : What is affixed to the soil belongs to the soil' is not a maxim of general jurisprudence and there is the authority of the Privy Council -- Vallabdas Narainji v. Development Officer, Bandra AIR 1929 SC 163 -- to hold that it does not represent the law of India. 9. In Thakoor Chunder Poramanick v. Ramdhone Bhuttacharjee 6 Suth WR 228 (FB), Sir Barnes Peacock said: We have not been able to find in the laws or customs of this country any traces or the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself. The Privy Council cited the statement with approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 SC 163 was different as is clear from the statement therein that the defendant, a trespasser, was at liberty to remove the bricks of his house. 12. In AIR 1929 SC 163 counsel for the respondents whilst contending that his clients could not be considered mere trespassers also submitted that, even if it were so, once it was admitted that the English maxim did not apply, the logical consequence followed that in any case of trespass by building on the lands of another, such trespasser had a right to remove the structure or be paid the value thereof by the owner . The Board did not deal with the matter. Their Lordships said that they did not think it necessary to give a decision upon this far-reaching contention . 13. In this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would, prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights . 16. In the case before us the defendant built the house on the 'and of the plaintiff knowing it to be the plaintiff's and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng it to be his wife's. The Court said: The husband never intends in such a case to reserve any right in the structures . We do not understand their Lordships as having been laid down a uniform or unvarying presumption applicable to all such cases. 19. Quite aprat from this, in the absence of the maxim whatever is affixed to the soil belongs to the soil the question is not whether the husband intends to reserve any right in the structure but whether the structure passed to the wife by any process known to law, for example, by a gift or in pursuance of the arrangement under which it was put up. The plaint does not disclose any such case. 20. In these circumstances we must hold that the lower appellate court was wrong in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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