VELAYUDHA MAISTRY Vs. MARI AMMAL

JUDGEMENT

(1.) This is an appeal from the decree of the District Judge of East Tanjore dated 11 July, 1939, modifying in appeal the decree of the District Munsif of Negapatam dated 12 November, 1937, in O.S. No. 39 of 1936. The suit was one instituted for a declaration of the plaintiff's title to a narrow strip of land in the Negapatam Municipality abutting on a tank belonging to the community of the defendant, that is, the washermen of the locality. The land in question is a narrow strip of about 15 feet abutting on the plaintiff's garden which she purchased in December, 1935. This strip was claimed by the plaintiff as part of her garden and included in? S. No. 1499. The defendants on the other hand alleged that the strip of land constituted the bund of the tank and belonged to them along with the tank and was included in S. No. 1500. The plaintiff's claim to this strip was negatived by the first Court and also by the lower appellate Court but in the appeal which was preferred by the plaintiff the lower appellate Court while dismissing the suit for a declaration of the plaintiff's title to the strip in question granted as an equitable remedy, permission to the plaintiff to cut and remove the trees in the strip of land before a certain date. The defendants appeal so far as the equitable remedy granted by the lower appellate Court is concerned.

(2.) So far as the facts are concerned, there can be no doubt that the finding of the lower appellate Court cannot be questioned in second appeal and as a matter of fact though an attempt was made to question the propriety of the findings of fact by the lower appellate Court in the course of the hearing of this appeal on the ground that there was no evidence to support them, no such attack appears to have been made or intended in the grounds of second appeal. It is in my opinion not open to the appellants to question the finding of the lower appellate Court to the effect that the trees in the strip were planted by the plaintiff's predecessors in title and not by the present appellants, that is, the defendants, and further that the planting was under an implied licence from the washermen. The First Court also observes that according to the Commissioner there is no fence separating the strip in dispute from the adjoining garden which belongs to the plaintiff and that the trees in the strip are more or less of the same age and description as the trees in the plaintiff's garden. The first Court was also of opinion that these circumstances would have afforded some corroborative evidence of the plaintiff's title and possession of the disputed site. In these circumstances it is impossible to contend that the finding of the lower appellate Court in favour of the plaintiff so far as the planting of the trees is concerned is not supported by any evidence in the case. On the finding of fact that the trees were planted by the plaintiff's predecessors in title and under an implied licence it seems to me that no real objection can be made to the modification made by the lower Court in favour of the plaintiff allowing her to cut and remove the trees before a certain date.

(3.) Several decisions have been brought to my notice by the Advocate for the respondents which show that the rule of English law that whatever is built upon land or grown upon land grows with the land does not apply strictly to India. It is enough in this connection to refer to the older decisions. (In the matter of the petition of Thakoor Chunder Paramanick (1866) Beng. L.R. (Supp. Vol.) 595 and Narayan Raghoji V/s. Bholagir Guru Mangir (1869) 6 Bom.H.C.R. (A.C.J.) 80). In the latter case Couch, C.J., observed that the doctrine of the English law as to buildings, namely, that they should belong to the owner of the land cannot be applied to cases arising in India and that the only doctrine that could be applied is the doctrine established in India that the party so building on another's land, should be allowed to remove the materials. In the former case Sir Barnes Peacock, C.J., after referring to the Hindu Law and the Muhammadan Law relating to the topic observed as follows: We think it clear that, according to the usages and customs of the country, buildings and other such improvements made on 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 tinder 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.