JATINDRA NATH ROY CHOWDHURY Vs. NARAYAN DAS KHETRY

JUDGEMENT

(1.) The appellants are the defendants, the successors-in-interest of Satyendra Nath Roy Chowdhury, who was the proprietor of a khas mahal holding. This holding was sold under the Revenue Sales Law by the Collector on December 17, 1919, and bought by the plaintiff. Satyendra's efforts to have the sale set aside were fruitless and on July 6, 1920, a certificate was issued to the plaintiff saying that his purchase took effect from May 1, 1920. Then on August 2, 1920, a declaration was made under the provisions of the Land Acquisition Act in respect of the holding and on March 11, 1921, the Deputy Collector awarded Rs. 2,181 for the land, and Rs. 12,388 for the building standing on it. This building was admittedly erected at the expense of Satyendra, and it was standing on the land at the time of plaintiff's purchase. The suit was brought to determine whether the plaintiff or defendants were to take the compensation money. There is, of course, no question about the compensation for the land: that must go to the plaintiff. The learned Judge has held that the plaintiff should also get the compensation for the building. It is against that finding that the appeal is directed.

(2.) It is conceded on all hands that the holding is one that can be sold under the Revenue Sales Law. Unfortunately the language of Act XI and Act VII seems hardly to refer to a small holding like the present one. Here the holding is a homestead or a residential site, and in the occupation of the proprietor. The learned Judge proceeds frankly on the doctrine omne quod solo incedificatur solo cedit, although, he admits that it has but a limited application in this country.

(3.) In this I think, he was wrong. The point was discussed, and settled in 1866, in the case of Thakoor Chunder Pramanick V/s. Ramdhone Bhuttacharjee 6 W.R. 228 and incidently it was pointed that the Civil Law gave some protection to the man who being in possession of land in good faith erected a building on it. On the authority of that decision I think it is clear that the plaintiff had the option of calling upon the defendants to remove the building or to accept such sum as might be found to be reasonable compensation. The plaintiff did not exercise that option. He says that he took delivery of possession through the Collector in August 1920, but that allegation is denied by the defendants and there is no evidence adduced in support of it. I need not consider when a purchaser must exercise his option in such a case: for my present purpose it is enough to say that the plaintiff had not exercised his option. It appears to me to follow from this failure on the part of the plaintiff that ownership of the building remained with the defendants, and that it was still with them when the award was made Consequently, I think that the learned Judge's decision is wrong, and that it must be reversed. The defendants, however, are not entitled to the whole of the compensation for the building: they allowed it to stand on the plaintiff's land for a long time and they ought to pay a reasonable sum for the use of the land. I agree with my learned brother as to the sum.