TMI Blog1964 (3) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant. Rajakannappa executed two mortgages, Ex. A. 1 dated 28-2-1946 for ₹ 10,000 and Ex. A. 2 dated 23-1-1947 for ₹ 5000 in favour of the plaintiffs, mortgaging the aforesaid property, over which he had a life interest. In the operative portion of the two mortgages, it is specially stipulated that the properties comprised in the settlement deed, the land and the building then existing as well as any future building or buildings that may be erected with all fixtures and fittings attached would remains security for the amounts advanced under the aforesaid mortgages. In this connection, it may also be mentioned that when the first loan of ₹ 10,000 was advanced the mortgagees and the mortgagor particularly contemplated erection of buildings on the land in question. Under Ex. B. 1 dated 1-7-1951 Rajakannappa and his wife and son executed in favour of one Chandrasekhara Mudaliar, the 4th defendant in the suit, a mortgage for ₹ 5000, comprising the land in question, as well as a new construction which was put up by the mortgagor on the land in question. Rajakannappa was adjudged insolvent in I. P. No. 28 of 1953 and the Official assignee of Madr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eath of the life-tenant, Rajakannappa. 5. The present appeal has been preferred by the defeated plaintiffs and the Bench, of which one of us was a member, called for a findings to whether the third defendant was a bona fide purchaser for value of No. 5-A Naoroji Road, and as to whether the plaintiffs were entitled to recover the suit amount from the suit property on the basis of Exs. A. 1 and A. 2. The learned City Civil Judge had submitted a finding that the third defendant is not a bona fide transferee but had full knowledge of the two mortgages, Exs A.1 and A. 2. He has also recorded a finding that the plaintiffs will be entitled to enforce their rights against the newly constructed house, door No. 5-A Nawroji Road. 6. We have no hesitation in accepting the finding of the learned City Civil Judge that the third defendant is not a bona fide transferee at all but both legally and factually she is a transferee with full knowledge of Exs. A. 1 and A. 2. In fact it is impossible even to contend otherwise. The two mortgages, Exs. A.1 and A. 2, are registered mortgages. Under S. 3 of the Transfer of Property Act constructive knowledge has got to be imputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings and other such improvements made on the land do not, by the mere accident of their attachment to the soil, become the property of the owner of the soil; and we think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil--the option of taking the building or allowing the removal of the material, remaining with the owner of the land, in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess. In India the view has been uniformly taken that the English doctrine of fixtures as to buildings would not apply, and that the party who builds on another's land should be allowed to remove the materials. Vide Mammunhi v. Kunhibi, AIR 1961 Ker 147 which contains a relevant discussion of the case law on the matter. 9. In a recent jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty does not confer any jurisdiction in the court to adjudicate upon questions of title. The order of the City Civil Court on O. P. 30 of 1956 cannot therefore operate as res judicata. 11. In this connection reference may be made to the judgment of the Privy Council in Bhagwan Din v. Gir Har Saroop, in which the question arose whether the doctrine of res judicata would apply to a decision of the District Judge in a proceeding under Ss. 3 and 6 of the Charitable and Religious Trusts Act of 1920. The Judicial Committee held that the fact that in a proceeding under Ss. 3 and 6 of the aforesaid Act the District Court ordered accounts to be furnished by the trustees holding that the trust in question was a charitable and religious trust did not operate as res judicata in a suit filed by the owners of the property to establish that no such charitable or religious trust existed. Sir George Rankin delivering the judgment of the Board put the matter thus, (approving the view taken in Haidarali Gulamali v. Gulam Mohiuddin, AIR 1934 Bom 343 and Premnath v. Harram, ILR 16 Lah 85:AIR 1934 Lah 771. Their Lordships agree with the Chief Court. They hold that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decides the question of the nature of the property in favour of the applicants. The only effect of the disobedience or the order of the District Judge is that a suit can be brought against the respondents without the sanction of the Advocate General, as is ordinarily required by S. 92 C. P. C. The proceedings of the District Judge are of a summary nature and do not fall within the definition of a suit, it is impossible to hold under the circumstances that his decision was intended to operate a res judicata. applying the rationale of the above decisions we held that the machinery provided under S. 69-A is purely of a summary nature and does not contemplate any decision or adjudication so as to attract the principles of S. 11 C. P. C. 13. The appeal is allowed and the plaintiffs suit is decreed as against the superstructures 5A Nowroji Road with costs throughout as against the third defendant. 14. The fourth defendant has preferred Memorandum of Cross objections with regard to the award of costs. In view of the claim made by him he was made a party and he did not state in the written statement that his claim has already been satisfied. O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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