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1959 (10) TMI 42

K. Kuttikrishna Menon and V. Balakrishna Eradi, Advs. JUDGMENT M.S. Menon, J. 1. The defendant in O. S. No. 46 of 1952 of the court of the District Munsiff of Kasaragod is the appellant before us. The suit was for the recovery of possession of the item of property described in tile Schedule to the plaint including the house thereon with mesne profits at ₹ 150/- per year from the date of the plaint till the date of recovery. 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 tha .....

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plaintiff will have to be considered as the owner of j the house and the defendant's claim must fail. Under the maxim "whatever is affixed to the soil becomes, in contemplation of law, a part of it and is subjected to the same rights of property as the soil itself". (Broom's Legal Maxims, Tenth Edition, Page 262). 8. The maxim, however, has to be considered as inapplicable to this country. As stated in Sirkar v. Mahadeva 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 o .....

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y the builder during the continuance or any estate he may possess." Both the passages from the judgment of Sir Barnes Peacock were quoted with approval in AIR 1929 SC 163. 11. According to the second of the two passages a "mere trespasser" is not entitled to relief. The view taken in Gobind Purmanick v. Gooroo Churn Dutt, 3 Suth WR 71, a case referred to in 6 Suth WR 228 (FB) and in no way overruled as pointed out by Privy Council in AIR 1929 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 .....

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e in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in Order afterwards to profit by the mistake which I might have prevented. But it will be observed that to 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 .....

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; The first exception is based on the principle that one cannot derogate from his own grant and the second on the principle of estoppel by acquiescence. No contention based on the section has been urged before us, and the section does not arise for consideration. 18. The decision relied an by the lower appellate court for coming to the conclusion that it did is K.K. Das v. Amina Khatun Bibi,AIR 1940 Cal 356. In that case the husband constructed a building on his wife's land knowing 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 .....

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