VALLABHDAS NARANJI Vs. DEVELOPMENT OFFICER

JUDGEMENT

(1.) This is an appeal against a decree made on February 24, 1926, by the High Court of Judicature at Bombay, varying an award dated July 28, 1924, by the Assistant Judge at Thana on a reference made under Section 18 of the Land Acquisition Act, 1894. The land in question is part of the village of Kanjur, and the area in dispute in this appeal is stated to be about 26 3/4 acres. Some of the lands were in the possession of sutidars who had rights of permanent occupancy in their rice fields. The first question which was argued before this Board on the present appeal was the claim of the appellants that certain buildings which had been erected by the Government on the land at the date of the Government's declaration of November 4, 1920, under the sixth section of the Land Acquisition Act had become and were the appellant's property, and that he should be allowed the value of the land in the state in which it then was; that is to say, with the buildings on it. The way that question has arisen is as follows:-

(2.) It appears that in 1919 the Government resolved to acquire the land in question and other land under the said Act, and by arrangement with certain of the sutidara they took possession of such land, including a portion which was in the occupation and the property of the appellant. Upon such land, including a portion in the possession of the appellant, they proceeded to erect certain buildings without the necessary notification, which was not served until November 4, 1920, when the Government notified, under the Land Acquisition Act, Section 6, a declaration that fifty-two acres more particularly described therein, situated in the said village and including the land in question in this appeal, were needed for a public purpose, and the Collector took order for the acquisition thereof. It is to be observed that the Government were in a position by law at any moment to regularise their position by such a notification-a fact which becomes material when it has to be considered what the nature of their trespass was under the law as applicable on the question of the right of the appellants to have the buildings which were erected on the lands before November 4 included in the valuation. The Assistant Judge held that the appellant was not entitled to have the said buildings erected by the Government in- eluded in the valuation, but that he was entitled to compensation for the occupation of the land by the officials before the notification of November 4, 1920, and he awarded such compensation in the form of interest on the value of the land computed from the date when the Government took possession. On appeal to the High Court of Appeal at Bombay that Court confirmed on Onion, this point the judgment of the Assistant Judge and refused to allow the value of the building to be considered in assessing the Lord Carton amount of compensation to be paid to the appellant. In the course of his judgment the learned Chief Justice said: "It is curious to have to remark that Government entered upon this area before the land was actually notified for acquisition. They seem to have done so in the belief that they could get the consent of the occupants to such possession, They not only took possession, but erected buildings on the land." The learned Chief Justice, however, held that the question was decided by the principles laid down in the case of Premji Jivan Bhate V/s. Haji Cassum Juma Ahmed (1895) I.L.R. 20 Bom. 298 and he quoted from the judgment of Sargeat C.J. in that case as follows (p. 300) :- It is well-establishod law in England that if a stranger builds on the land of another, although believing it to be his own, the owner is entitled to recover the land with the building on it, unless there are special circumstances amounting to a standing by so as to induce the belief that the owner intended to forego his right or to an acquiescence in his building on the land... This is also the law in India, with the exception that the party building on the land of another is allowed to remove the building. Now up to a certain point there was no difference between counsel for the parties as to the law applicable to the case. It was agreed on both sides that the English law as comprised in the maxim, "quidquid plantatur solo solo credit," has no application In 1866, in consequence of a difference of opinion between certain divisions of the Courts, the law was carefully reviewed in a case referred to a Full Bench, Thakoor Ghunder Poramanick V/s. Ramdhone Bhuttacharjee (1866) 6 W.R. 228. In the order of reference it is stated that the question involved was "whether a person who, being in possession of land as proprietor, erects pucka buildings (of brick, &c.) thereon, has a right, on being subsequently ejected from the land as having no title, to pull down those buildings and remove the materials. In the present case, we decided that he has no such right. Since we so decided, it appears that another Division Bench...have, in the case of Gobind Puramanick V/s. Gooroo Churn Dutt (1865) 3 W.R. 71 decided to the contrary effect." The judgment was given by Barnes Peacock who stated as follows (p. 228) ;- We have not been able to find in the laws or customs of this country any traces of the existence of au absolute rule of law that whatever is affixed Develop or built the soil becomes a part of it, and is subjected to the same rights property as the soil itself. And later on he adds (p. 229):- We think it clear that, according to the usages and customs of this 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 m 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.

(3.) The question is, what is meant by a "mere trespasser" as contradistinguished from possession under "any bona fide title or claim of title," In the case quoted the defendant had erected buildings on land sold to his predecessors-title by a widow during the lifetime of the widow, but which sale was held void as being improperly made by the widow, and it is to be noted that Gobind Poramanick's case referred to in the reference, was in no way overruled. It is therefore worth while to consider the view taken by the learned Judges in that case, who stated the law as follows (p. 71) : "But, in the present case, we have a trespasser who has tortiously entered upon the land of another, and built a house thereon. Without going so far as to say that, under no circumstances could acquiescence by the party injured in the act of the injury done be inferred, we are clearly of opinion that no such acquiescence was either pleaded or proved in the present case. We, therefore, think the plaintiff clearly entitled as against the defendant, a trespasser, to possession of his land, leaving defendant at liberty to remove the bricks of his house."