TMI Blog1971 (4) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... eirs and respondents 2 and 3 on the other who claim under a will. There appears to have been an agreement between the parties. But as pointed out by the trial Court, the dispute between Plaintiffs 5 and 6 (respondents 2 and 3) and plaintiffs 7 and 8 (appellant 3 and 4) is left open to be determined in separate proceedings between them. 3. Osan Pillai claimed the suite properties as forming part of Survey Nos. 1609, 2362 and 1629 of Ezhudesom village registered in his name. But proceedings were taken by the first respondent herein. District Collector of Kanyakumari, in pursuance of the notice under Section 10 of the Travancore-Cochin Land Conservancy Act, 1951 (Act XIX of 1951) (hereinafter referred to as the Act) on the ground that the suit properties formed part of Survey Nos. 1610, 2363 and 1628 of Ezhudesom village, the said lands being part of river poramboke. The learned Subordinate Judge of Nagercoil, on a consideration of the evidence in this case found that the plaintiffs have failed to prove that the suit lands formed part of the holdings of the first plaintiff. P.W. 1 is the power of Attorney agent and son-in-law of the second plaintiff. The learned Subordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question is only of academic importance in view of the conclusion reached in that case that the plaintiffs had established possession and enjoyment for at least for sixty years before suit. It is only where the evidence is not sufficient to decide the question as one of fact, it is necessary to invoke such principle. In the present case, the reports on the encroachments and the mahazars prepared in respect of the same, namely, Exhibits B-7, B-9, B-12, B-14, and B-17 and B-19 show that the encroachment is about thirty three years old and that it will be twenty years since the cocoanut trees on the encroached lands started yielding. Though in the suit notice Exhibit A-33 the first plaintiff has stated that he has been in possession of the suit properties for more than seventy five years, he has clearly admitted in his statement Exhibit B-10 before the revenue authorities that he has been in possession and enjoyment of the suit properties and effecting improvements for about thirty five years, along with the other lands assigned to him. The assignment of lands in favour of the first plaintiff was in the year 1916. Thus, the appellants have failed to prove that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... succeeds in establishing his claim. 6. The learned Subordinate Judge has referred to several decisions recognising the right of even trespassers to claim the value of improvements so long as the trespassers acted in good faith and encroached on others land on account of bona fide mistake on his part, and not on account of deliberate intention to trespass. He however found that the plaintiffs are not entitled to the value of improvements as they have encroached on canal poramboke which will not be assigned by the Government to persons wrongfully cultivating the same. The learned advocate for the appellants rights stressed on the fact that the suit properties are adjacent to the lands in the holdings of the first plaintiff and that the first plaintiff has been cultivating the same for over thirty-five or forty years, and urged that it could not be said that the first plaintiff deliberately trespassed upon the property and that his cultivation was not due to his bona fide mistake that the lands were part of his holdings. We shall proceed to consider the claims of the first plaintiff on the footing that he planted the cocoanut trees in the honest though erroneous belief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, or at any rate from the date of the trespasser's dispossession vested in the State. in view of the decisions of our High Court commencing from Vasudevan Nambudripad v. Valia Thathu Achan, ILR (1901) Mad 47 that the maxim quicquid plantatur solo solo cedit, whatever is affixed to the soil belongs thereto, applies not merely to buildings, but to trees as well, it is not possible to accept this decision that even during the pendency of the lease, the tenant who planted the trees is not the owner thereof. In Thakoor Chander Poramanick v. Ramdhone Bhattacharjee, (1866) 6 SWR 228 Sir Barnes Peacock observed as follows:-- We think it clear that, according to the usages and customs of this country, buildings 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a licence do not go with the land and the person who planted the trees is entitled to cut and remove them but he should restore the land in the condition in which it was before the trees were planted. The observations of Sir Barnes Peacock in (1866) 6 SWR 228 and the consideration of the same by the Full Bench of this Court in, ILR (1901) Mad 47 have been considered in detail in this decision, and it is pointed out that the doctrine of English law that whatever is built upon land or grown upon land goes with the land does not apply strictly to India. We may incidentally point out that all these decisions relate to rights of tenants to cut and remove trees planted by them during the subsistence of the lease. But our only object in referring to these decisions is to show that no distinction is made as regards the application of the maxim quicquid plantatur solo, solo cedit whether the improvements relate to buildings or to trees planted in the lease hold lands. In Panna Lal v. Gobardhan Das, AIR1949All757 the applicability of the above maxim was considered and the learned Judge who decided the case was inclined to take the view that so long as bona fide trespasser i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellants even if it is assumed that the decision is correct. it was held in that decision that proceedings in ejectment have recognised the right of the trespasser to remove the improvements he had made and this valuable right has admittedly been denied to the respondents by the action of the Government and in this view the decree of the lower court granting compensation for the improvements effected, was confirmed in that case. For the foregoing reasons, the appellants cannot claim the value of the improvements. We have already pointed out that the position of the appellants who are at best bona fide trespassers cannot be higher than that of a tenant. Their right if any to remove the trees planted by them should have been exercised before the first plaintiff was evicted from the Government river poramboke lands. 11. The learned Government pleader did not rightly question the validity of the notice under Section 80 of the Civil Procedure Code. He however questions the findings of the trial court as regards the plea of limitation urged by him. It is true the first plaintiff did not prefer an appeal against the adverse orders passed by the Tahsildar. It is o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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