Nair Service Society Ltd. Vs. Rev.
Father K. C. Alexander & Ors [1968] INSC 39 (12 February 1968)
12/02/1968 HIDAYATULLAH, M.
HIDAYATULLAH, M.
SIKRI, S.M.
HEGDE, K.S.
CITATION: 1968 AIR 1165 1968 SCR (3) 163
ACT:
Specific Relief Act, 1877 (1 of 1877), ss. 8
and 9--Suit under s. 8 whether must be based on proof of
title--justertii--Indian Evidence Act, 1872 (1 of 1872), s. 110 presumption
under--The Limitation Act, 1963 (36 of 1963) Arts. 64 and 65--Travancore
Limitation Regulation (VI of 110 M.E. s. 32)--Travancore Specific Relief Act
XIII of 1115.
ss. 7 and 8--(Travancore) Regulation IV of
1091--Effect of incurring penalty under Regulations on right to suit for
recovery of possession of land--Code of Civil Procedure 1908 (Act 5 of 1908), O
VI, r. 17--Amendment of pleadings--Effect of laches.
HEADNOTE:
After a case under the Travancore Land
Conservancy Regulation IV of 1094 M.E. the plaintiff was evicted from 160 acres
of Poramboke land.Thereafter in August 1938 the appellant Society applied for a
Kuthakapattom lease of this area which was granted and the Society entered into
possession in July 1939. The suit land was adjacent to the above land. In the
map prepared by the, Court Commissioner the suit land was marked as L(1) and
the area of 160 acres aforesaid as L(2). In his suit which was filed in 1942
the plaintiff alleged that after entering into possession of L(2) the Society
in October 1939 through its agents forcibly dispossessed him of L(1) as well.
He asked for restoration of possession of L(1) and for related relief. The
Society in its defence contended that the plaint lands were Government Reserve
and that the plaintiff was dispossessed by Government from these lands when he
was dispossessed of L(2). In 1948 the Society was granted Kuthakapattom lease
in respect of a party of L(1) as well, and this portion was marked as L (1 )
(b), the rest of the suit land being marked as L(1) (a). The Society in its
written statement did not aver that it was not in possession of L(1) (a).
Subsequently, it attempted by argument to
limit its defence to L(1) (b) on the basis of the 1948 base, But although the
suit was pending in the trial court for 17 years no application for amendment
of the pleadings to this effect was made. The trial court decreed the
plaintiff's suit for L(1) (a). In the High Court the Society applied on the
last day of the hearing of the appeal, for amendment of its written statement
limiting its defence to portion L(1) (b), disclaiming all interest in portion
L(1) (a). The High Court rejected the application as belated and decreed the
suit against the Society in respect of L(1) (b) as well. The Society appealed,
by certificate to this Court. The main contention urged on behalf of the
Society based on the Travancore law corresponding to, ss. 8 and 9 of the Indian
Specific Relief Act, was that after the expiry of six months from the date of
dispossession a suit for possession without proof of title was incompetent. On
facts the Society's plea was that the plaintiff had been evicted by the
Government from the suit lands at the same time as he was evicted from L(2).
HELD : (i) The High Court accepted the plaintiff's
allegations as to his forcible dispossession from the, suit land by the
Society. On examination of the evidence there was no reason to depart from the
finding of the High Court. [171 D-E] (ii) It cannot be said that the
distinction between ss. 8 and 9 of the Indian Specific Relief Act was based on
the distinction that was at one 164 time drawn in Roman Law between the two
kinds of Interdicts namely, de vi cotidiana and de vi armada. In the time of
Justinian the two Interdicts de vi were fused and there was only one action
representing both. The appeal to Roman Law was therefore of no assistance. [174
B-C] (iii) The contention that while under s. 9 of the Specific Relief Act a
suit based merely on prior possession must be filed within six months, while a
suit, under s. 8 based on proof of title may be filed within 12 years cannot be
sustained. Section 8 of the Act does not limit the kinds of suit but only lays
down that the procedure laid down by the Cod-. of Civil Procedure must be
followed. This is very different from saying that a suit based on possession
alone is incompetent after the expiry of 6 months. Under s. 9 of the Code of
Civil Procedure itself all suits of a civil nature are triable excepting suits
of which their cognizance is either expressly or impliedly barred. There is no
prohibition expressly barring it suit based on possession alone. [175 F-G] Ram
Harakh Rai v. Scheodihal Joti, (1893) 15 All. 384, considered.
Mustapha Sahib v. Santha Pillai, I.L.R. 23
Mad. 179 and Kuttan Narayaman v. Thomman Mathai, (1966) Kerala Law Times 1, applied.
The uniform, view of the courts is that if s.
9 of the Specific Relief Act is utilised the plaintiff need not prove title,
and the title of the defendant does not avail him.
When, however, the period of 6 months has
passed questions of title can be raised by the defendent and if he does so the
plaintiff must establish a better title or fail. In other words the, right is
restricted to possession only in a suit under s. 9 of the Specific Relief Act
but that does not bar a suit on prior possession within 12 years and title need
Pot be proved unless the defendant can prove one.
Articles 64 and 65 of the Indian Limitation
Act as recently amended bring out this difference. Article 64 enables a suit
within 12 years from dispossession for possession of immovable property based
on possession and not on title, when the plaintiff while in possession of the
property has been dispossessed. Article 65 is for possession of immovable
property or any interest therein based on title.
The amendment is not remedial but declaratory
of the law.In the present case therefore, the plaintiff's suit was
competent.[177 A-D] (iv) The Society could not on the basis of possession claim
a presumption of title in its favour relying on s. 110 of the Indian Evidence
Act. This presumption can hardly arise when the facts are known. When the facts
disclose no-title, possession alone decides. In the present case neither party
had title and therefore s. 110 of the Evidence. Act was immaterial. [177 E-F]
(v) The, plea of jus tertii on behalf of the appellant could not succeed. The
plea is based on Doe v. Barnard [1849] Q.B. 945 which was departed from in Sher
v. Whitlock, [1885] 1 Q.B I and was overruled in Perry v. Clissold, [1907] A.C.
73. The view taken in Perry v. Clissold that a person in possession of land has
a perfectly good title against all the world but the rightful owner, has been
consistently accepted in India and the amendment of the Indian Limitation Act
has given approval to that proposition. Accordingly the Society was not
entitled to plead in the, present case that the title to the suit land lay in
the State. Such a plea if allowed will always place the defendant in a position
of dominance. He has only to evict the prior trespasser and sit pretty pleading
that the title is in someone else. The law does not countenance the doctrine of
'findings keepings'. [179 H, 182 F-G] Perry v. Clissold, [1907] A.C. 73,
Burling v. Read, 11 Q. B.
904 and Smith v. Oxenden. I Ch. Ca 25,
applied.
165 Dharani Khanta Lahiri v. Garbar Ali Khan,
25 M.L.J. 9 P. C.
and Mahabir Prasad v. Jamuna Singh, 92 I.C.
31 P.C.
distinguished.
(vi) The plaintiff's claim could not be
refused on ground that he was an offender liable to penalty under Regulation IV
of 1091 M.E. and other connected Regulation and rules.
The Regulations were intended to regulate the
relation of Government and persons but had no bearing upon the relations
between persons claiming to be in possession. The penalty under the Regulations
were a fine for wrongful occupation and in no sense a punishment for crime. The
illegality of possession was not thus a criminal act and the. regaining lost
possession could not be described as an action to take advantage of one's own
illegal action. In fact the plaintiff was not required to rely upon any
illegality, which is the consideration which makes the courts deny their
assistance a party. [183 C-D] Holmas v. Johnson, (1775) 1 Cowpar 341, referred
to.
(vii) The Society had failed to amend its
pleadings in respect of suit land marked L(1) (b), and had made a request to
the High . Court to allow such amendment only at the eleventh hour. But on the
facts and circumstances of the case it was desirable, to allow the amendment in
order to determine the effect of the 1948 lease on the. rights of the parties
in L(1) (b) Without amendment another suit based on the second Kuthakapattom
was inevitable.There is good authority for the proposition that subsequent
events may be, taken note of if they tend to reduce litigation.This was not
on.-of those cases in which there was likelihood of prolonged litigation after
remand or in which a new case would begin. [Case remanded to trial court to try
issue arising out of amendment in respect of L(1)(b)]. [187 D-E] Case-Law
referred to.
(viii) The exact implications of the second
Kuthakapattom after the amendment of pleadings as allowed were for the trial
court to determine but it was clear that the second Kuthakapattom could not be
regarded as retroactive from the date of the grant of the first Kuthakapattom.
The document granting the 1948 lease did not mention that it was retrospective.
A formal document which has no ambiguity cannot be varied by reference to other
documents which are not intended to vary it. [187 G] (ix) In respect of portion
of the land L(1) (a) the appeal must be dismissed. [188 D-E]
CIVIL APPELLATEJURISDICTION: Civil Appeal No.
1632 of 1966.
Appeal from the judgment and decree dated
December 23, 1965 of the Kerala High Court in Appeal Suit No.406 of 1961.
M. K. Nambiar, N. A. Subramanian, K.,
Velayudhan Nair,T. K. Unnithan, Rameshwar Nath and Mahinder Narain, for the
appellant.
S. V. Gupte, T. P. Paulose, B. Dutta, Annamma
Alexander, J.
B. Dadachanji., O. C. Mathur and Ravinder
Narain, for respondent No .1 166 The Judgment of the Court was delivered by
Hidayatullah, J. This is an appeal by certificate from the judgment of the High
Court of Kerala, December 23, 1965, reversing the decree of the Sub-Court,
Mavelikara. , By the judgment and decree under appeal the suit of the first
respondent, Rev. Father K. C. Alexander (shortly the plaintiff) was decreed in
respect of the suit lands of which, he had sought possession from the
appellant, Nair Service Society Ltd. (shortly the Society or the first
defendant) and some others who are shown as respondents 2 to
6. The facts in this appeal are as follows
The plaintiff filed a suit in forma pauperis on October 13, 1942 against the
Society, its Kariasthan (Manager) and four others for possession of 131.23
acres of land from Survey Nos. 780/1 and 780/2 of Rannipakuthy in the former.
State of Travancore and for mesne profits past and future with compensation for
waste. The suit lands are shown as L(1) on a map Ex. L prepared by
Commissioners in CMA 206 of 1110 M.E. and proved by P.W. 10. The two Survey
Nos. are admittedly Government Poramboke lands. The plaintiff claimed to be in
possession of these lands for over 70 years. In the year 1100 M.E. a Poramboke
case for evicting him from an area shown as L(2) measuring 173.38 acres, but
described in the present suit variously as 160, 161 and 165 acres, was started
under the Travancore Land Conservancy Regulation IV of 1094 M.E. (L.C. case No.
112/1100 M.E.) by Pathanamathitta Taluk Cutchery. This land is conveniently
described as 160 acres and has been so referred to by the High Court and the
Sub-Court. The plaintiff was fined under the Regulations and was evicted from
the 160 acres. The Society applied for Kuthakapattom lease of this area on
August 11, 1938. The lease was granted but has not been produced in the case.
It was for 165 acres and the Society was admittedly put in possession of it on
July 24, 1939 or thereabouts. The lease was for 12 years. Plaintiff's case was
that on 13/16 October, 1939 a number of persons acting on behalf Of the.
Society trespassed upon and took possession of the suit lands (131.23 acres) in
addition to the 160 acres. The plaintiff, therefore, claimed possession of the
excess land from the Society, its Manager and defendants 3 to 6, who were
acting on behalf of the Society. The plaintiff also claimed mesne profits and
compensation for waste.
The Society contended that the plaint lands
were Government Reserve and that the plaintiff was dispossessed by Government
from these lands when he was dispossessed of the 160 acres. The suit land is in
two parts. Ex. L. shows these two parts as L(1)(a) and L(1)(b). The Society had
applied for another 167 Kuthakapattom lease in respect of L (1) (b) and obtained
it.
during the pendency of the suit on March 10,
1948. In this Kuthakapattom, which is Ex. 1, the land is shown as 256.13.
acres and the lease is made without limit of
time.
Simultaneously a demand was made from the
Society for arrears of Pattom at the same rate as for the Kuthakapattom in
respect of the whole land after setting off the amount already paid by the
Society. The Society in its written statement did not aver that it was not in
possession of L (1) (a) and resisted the suit in regard to the entire suit
lands. Subsequently it attempted by argument to limit its defence to L(1) (b)
which was additionally granted to it, in the Kuthakapattom Ex. 1. Although the
suit pended for 17 years in the Sub-Court no application for amendment was
made. The Society asked for amendments several times, the last being on October
15, 1958. However, on the last day of hearing of, the appeal in the High Court
(December 14, 1965) the Society applied for an amendment of the written
statement limiting its defence to portion L(1) (b) disclaiming all interest in
portion, L (1) (a) and attempted to plead the grant of the second Kuthakapattom
in its favour on March 10, 1948. The High Court rejected this application by
its judgment under appeal and, awarded possession against the Society of the
entire suit land. The Society in its case denied the right of the plaintiff to
bring a suit for ejectment or its liability for compensation as claimed by the
plaintiff. In the alternative, the Society claimed the value, of improvements
effected by it, in case the claim of the plaintiff was decreased against it.
The other defendants remined ex-parte in the suit and did not appeal.
They have now been shown as proforma
respondents by the Society.
The suit went to trial on 13 issues. The main
issues were.
(a) whether the plaintiff was in possession
of lands L(1) for over 70 years and had improved these lands; (b) whether the.
first defendant was entitled to possession of any area in excess of the first
Kuthakapattom for 12 years; and (c) whether the. trespass was on 13/16 October,
1939 or whether the plaintiff was evicted on July 24, 1939 by the Government
from the suit land in addition to the 160 acres in respect of which action was
taken in the Land Conservancy case.
Other issues arose from the. rival claims for
mesne profits and compensation to which reference has already been made.
The suit was dismissed by the. trial Judge
against the Society but was decreed against defendants 3 to 6 in respect of
land L (1)(a) with mesne profits and compensation for waste. The trial Judge
held that the possession of' the plaintiff dated back only to 1920-21 and that
he was evicted from portion L (1) (b) as per plan AZ and that the Society was
in possession from the time it entered into possession of 160 168 acres. The
trial Judge held that as the land was Poramboke and the plaintiff has been
ousted by Government he could not claim possession. The subsequent grant of
Kuthakapattom (Ex. 1) was not considered relevant and the suit was decided on
the basis of the facts existing on the date of the commencement of the suit.
The trial Judge, however, held that if the plaintiff was entitled to recover
possession he would also be entitled to mesne profits at the rate of Rs.
3,392/from October 16,1939. The defendants'
improvements were estimated at Rs. 53,085/-. Possession of L(1)(a) was decreed
with costs, mesne profits past and future, and compensation for waste against
defendants 3 to 6.
The plaintiff filed an appeal in forma
pauperis. The High Court reversed the decree of the trial Judge and decreed it
against the Society and its Manager ordering possession of the entire suit
lands with mesne profits past and future, and compensation for any waste. The
High Court held that the Society-had admitted its possession in respect of the
entire suit land and that the grant of Kuthakapattom in respect of L (1) (a)
to, defendants to 6 by the Government was immaterial. The High Court held that
the evidence clearly established that the plaintiff was in possession of the
plaint lands at least from 1924 to 1925 and that it made no difference whether
the plaintiff was dispossessed .on October 16, 1939 as stated in the plaint or
July 24, 1939 as .alleged by the Society. The main controversy, which was
decided by the High Court, was whether the plaintiff could maintain a suit for
possession, (apart from a possessory suit under the Travancore laws analogous
to s. 9 of the Indian Specific Relief Act) without proof of title basing him.
self mainly on his prior possession and whether the Society could defend itself
pleading the title of the Government. On both these points the decision of the
High Court was in favour of the plaintiff.
In this appeal the first contention of the
Society is that it did not dispossess the plaintiff on October 16, 1939 but on
July 24, 1939 when he was evicted from the 1'60 acres in respect of which
Poramboke case was started against him.
According to the Society, if the plaintiff's
possession was terminated by the rightful owner and the Society got its
possession from the rightful owner the suit for ejectment could not lie. It may
be stated here that the plaintiff had applied for an amendment to implead
Government but the amendment was disallowed by the trial Judge. In 1928 the
plaintiff had filed O.S. 156/1103 against the Government for declaration of
possession and injunction in respect of the 160 acres of land and L(1)(b), but
the suit was 169 dismissed in default and a revision application against the
order of dismissal was also dismissed by the High Court of Kerala. The suit had
delayed the Poramboke case as a temporary injunction has been issued against
Government. On the dismissal of that suit the first Kuthakapattom lease was
granted to the Society. The next contention of the Society is that a suit in
ejectment cannot lie wihout title and a prior trespasser cannot maintain the
suit generally against the latter trespasser and more particularly in this case
in respect of lands belonging to Government specially when the latter
trespasser (even if it was, one) had the authority of the true owner either
given originally or subsequently but relating back to the date of the trespass.
The Society also submits that as trespass on Government land was prohibited by
law the plaintiff could not get the assistance of the court. The Society also
contends more specifically that there is no true principle of law that
possession confers a good title except against the owner or that possession is
a conclusive title against all but the true owner. In its submission, if a
possessory suit analogous to s. 9 of the Indian Specific Relief Act was not
filed by the plaintiff's only remedy was to, file. a suit for ejectment
pleading and proving his title to the suit land. A mere possessory suit after
the expiry of 6 months was not possible. There are other branches of these main
arguments to which reference need not be made here. They will appear when these
arguments will be considered.
The first question to settle is when
dispossession took place. According to the plaintiff he was dispossessed on
October 16, 1939 and according to the Society plaintiff was dispossessed on
July 24, 1939 when he was evicted from 160 acres. The trial Judge accepted the
case of the Society and the High Court that of the plaintiff. The High Court,
however, remarked that it did not matter when the plaintiff was first
dispossessed. The difference in dates is insisted upon by the Society because
if it can show that the plaintiff was dispossessed by the true owner, namely,
the State, it can resist the suit pleading that it was in possession under the
authority of the owner and that the possession of the plaintiff was already
disturbed and a suit in ejectment did not lie against it. There are, however,
several circumstances which indicate that the plaintiff's case that
dispossession took place in October 1939, is true.
To begin with we are concerned with three areas.
The Land Conservancy case concerned L(2) or 160 acres. The other two areas are
L(1) (a) 55.47 acres and L(1) (b) 75.76 acres.
These total to 291.23 acres. The suit was
filed to obtain possession L4 Sup CI/68-12 170 of 131.23 acres, that is to say,
291-23 acres minus the 160 acres. The Society attempted to disclaim all
interest in L(1) (a) and even attempted to deny that defendants 3-6 were in
possession of it. This was not allowed for very good reasons. In the written
statement no distinction was made between L(1) (a) and L (1) (b). Although
amendments were allowed, no amendment of the written statement to withdraw
L(1)(a) from dispute was asked for. The attempt consisted of oral arguments
which the Court did not entertain. Even in the High Court the written statement
was sought to be amended as late as December 14, 1965, the last day of the
arguments. The application had two prayers. About the second of the two prayers
we shall say something later but the amendment we are dealing with was not only
belated but also an afterthought. The High Court rightly points out that a
defendant, who after trial of the suit for 16 years orally asks for the
withdrawal of an admission in the written statement, cannot be allowed to do
so. Therefore, the dispute covered the entire 131.23 acres and the Society was
claiming to be in possession. The plaint had asserted that the defendants 2-6
were in possession and that defendant 2 was acting for the Society. In reply
the Society claimed to be in possession. It, however, led evidence on its own
behalf that L(1) (a) was not in its possession. That could not be considered in
view of the admission in the pleadings. The contrary admission of the plaintiff
that defendants 3-6 were in possession was cited before us as it was before the
High Court. But the High Court has already given an adequate answer when it
observes that the plaintiff only said he had heard this.
Therefore, we are of opinion that the issue
was joined between the plaintiff and the Society with respect to the entire
suit land.
The alternative contention of the Society is
that the plaintiff was dispossessed by the rightful owner, that is, the State.
This contention was accepted by the trial Judge but rejected by the High Court.
We shall now consider it.
It is an admitted fact that eviction in the
Land Conservancy case took place on 8-121114 M.E. corresponding to July 24,
1939. Since the order was to evict the plaintiff from 160 acres, it is fair to
assume that he would be evicted from that area only. The Mahazar Ex. AG, proved
by the village Munsiff who was personally present, establishes that eviction
was from 160 acres. The High Court judgment mentions the names of several other
witnesses who have also deposed in the same way. The High Court also points out
that the rubber quotas from the rubber trees continued to be in the name of the
plaintiff except in 160 acres in which the quotas were transferred to the name
of Government. All this was very clear evidence. Further even if some more area
was taken over 171 from the plaintiff, it would be small and not as much as
131.23 acres or even 75.76 acres. It is to be noticed that the Society applied
on August 11, 1939 for grant of a Kuthakapattom only in respect of 165 acres
and this was on the basis of possession. If the Society was in possession of
291.23 acres, it would not have omitted on August 11, 1939 to apply for the
additional area as well. Another application was made for a second
Kuthakapattom in respect of the additional land on the basis of possession but
only after certain events happened. On September 29, a complaint (Ex. AO) was
made by Phillippose Abraham (P.W. 8), the Manager of the plaintiff, that the
land was trespassed upon by the Society's men who had harvested the paddy. On
October 2, 1939 the second defendant made a counter complaint Ex. AS. This made
a mention of 'land from which, the 1st accused (plain-' tiff) was evicted'. It
is, however, to be seen that in the Mahazar (Exs. AT, AT-1 and AT-2) the
encroached area is shown as 160 acres. On October 13, 1939 one Krishna Nair
made a complaint (Ex. AH) against plaintiff's men of beating and dacoity. was
delayed and was only granted on October 20, 1939.On October 24, 1939 the
plaintiff complained of dispossession.The case of dacoity was virtually withdrawn
and the accusedwere discharged. The High Court accepted the plea that thefalse
charge of dacoity and the arrest were a prelude to dispossession and a ruse to
get the servants of the plaintiff out of the way.
On looking into the evidence we cannot say
that this inference is wrong.
The Society, however draws attention to
several circumstances from which it seeks to infer the contrary. We do not
think that they are cogent enough to displace the other evidence. We may,
however, refer to them. The Society first refers So plaintiff's application(Ex.
16) on July 28, 1939 that he was dispossessed of suit buildings and requesting
that 160 acres be correctly demarcated. In other documents also the plaintiff
complained of eviction from land in excess of 160 acres and dispossession from
buildings. The Society submits that the evidence showed that there were no
buildings in 160 acres and that only bamboo huts were to be found. The map Ex.
L shows some buildings in L(2). It is more likely that as these buildings were close
to the western boundary between L(2) and L(1), the plaintiff hoped that he
would be able to save them as on admeasurement they would be found outside 160
acres. It may be mentioned that in addition to 160 acres, land 20 acres in
extent was further encroached upon. This land is shown in plan Ex. BB and
represents little extensions all round the 160 acres. If this area was taken
into account and 160 acres admeasured then, there was a possibility of the
buildings being saved. This is a more rational 172 explanation than the
contention that as many as 131.23 acres were additionally taken in possession
when the plaintiff was dispossessed from 160 acres. We have therefore, not
departed from the finding of the High Court which we find to be sound.
Failing on the facts, the Society takes legal
objections to the suit. According to the learned counsel for the Society the
suit in ejectment, based on possession in the character of a trespasser was not
maintainable. His contention is that a trespasser's only remedy is to file a
suit under S.
32 of the Travancore Limitation Regulation
(VI of 1 1 00) as amended by Regulations IX of 1100 and 1 of 1101, but within 6
months. This section corresponds to s. 9 of the Indian Specific Relief Act. Now
if 'dispossession Was by Government the suit could not be filed because there
was a bar to such a suit. If dispossession was by the Society a suit under' s.
32 was competent. The question is whether after the expiry of 6 months a
regular suit based on prior possession without proof of title was maintainable.
This is the main contention ,on merits although it has many branches. We now
proceed to consider it.
This aspect of the case was argued by Mr.
Nambiar with great elaboration for a number of days. The argument had many
facets and it is convenient to deal with some facets separately because they
have no inter connection with others and some others together. 'The main
argument is that a suit by a trespasser does not lie for ejectment of another
trespasser after the period of 6 months prescribed by S. 32 of the Travancore
Limitation Act (VI of 1100). The provisions of the Travancore Specific Relief
Act (XIII of 1115) are in pari materia and also ipsissima verba with the Indian
Specific Relief Act and are set out below*.
ACT XIII OF 11 15.
"S. 7. Recovery of specific immovable
property. A Person entitled to the possession of specific immovable property
may recover it in the manner prescribed by the Code of Civil Procedure."
"S. 8. Suit by person dispossessed of immovable property. if any person is
dispossessed without his consent of immovable property otherwise than in due
course, of law, he or any person claiming through him may be suit recover
Possession thereof, notwithstanding any other title, that may be set 'up in
such suit.
Nothing in this Section shall bar any Person
from suing to establish his title to such property and to recover Possession
thereof.
No appeal shall lie from any order or decree
Passed in any suit instituted under this section. nor shall any review of any
such order or decree be allowed." 173 It is convenient to refer to the
Indian Act. According to Mr. Nambiar a contrast exists between ss. 8 and 9 of
the Specific Relief Act. These Sections are reproduced below*.
Mr. Nambiar submits that s. 8 refers to suits
for possession other than those under s. 9, and while question of title is
immaterial in suits under s. 9, under s. 8 a suit for ejectment must be on the
basis of title. In other words, in a suit under s. 8 title must be proved by a
plaintiff but under S. 9 he need not. Once the period of six months has been
lost a suit brought within 12 years for obtaining possession by ejectment must
be based on title and not bare prior possession alone.
In support of this argument Mr. Nambiar
refers to Roman Law of Interdicts and urges that the same distinction also
existed there and has been borrowed by us through the English practice. We may
first clear this misconception.
Possession in Roman Law was secured to a
possessor by two forms of Interdicts--Utipossidetis for immovable’s and utrubi
for movables. But we are not concerned with these, but with actions to recover
possession which were compendiously called recuperandae possessions causa.
*ACT VI OF 1110.
"S. 32. Right to site for recovery of
unlawfully dispossessed property by person so dispossessed or his
representative. If any person is dispossessed without his consent of any house,
building or land otherwise than in due course of law, he or any person claiming
through him may by suit instituted within the period prescribed in Article 2 of
the First Schedule appended to this Regulation, recover possession thereof,
notwithstanding any other title that may be set up in such suit.
Exception : Nothing in this section shall bar
any person from suing to establish his title to such property and to recover
possession thereof.
Bar to suit against Government under this
section. No suit under this section shall be brought against our
Government."
INDIAN SPECIFIC RELIEF ACT.
"S. 8. Recovery of Specific immoveable
property. A person entitled to the possession of specific immoveable property
may recover it in the manner-prescribed by the Code of Civil Procedure."
"S. 9. Suit by person dispossessed of immoveable property.
If any person is dispossessed without big
consent of immoveable property, otherwise than in due course of law he or any
person claiming through him may, by' suit, recover possession thereof,
notwithstanding any other title that may be set tip in such suit.
Nothing in this section shall bar any person
from suing to establish his title to such property and to recover possession
thereof.
No suit under this section shall be brought
against the Central Government, or any State Government.
No appeal shall lie from any order or decree
passed in any suit instituted under this section. nor shall any review of any
such order or decree be allowed." 174 There were two interdicts known as
deprecario and de vi. Of the latter two of the branches were the Interdict devicatidiana
by which possession was ordered "to be restored on an application made
within the year where one had been ejected from land by force, provided there
had not been vi clam aut precario from the ejector." The other d evi
armata for ejection by armed force, was without restriction of time. Mr.
Nambiar says that the same distinction exists between suits under ss. 9 and 8
of the Specific Relief Act.
This is an ingenious way of explaining his
point of view but it does not appear that these principles of Roman Law at all
influenced law making. These principles were in vogue in early Roman Law. In
the time of Justinian the two Interdicts de vi were fused and there was only
one action representing both. Even the clause a about vi clam aut precario
disappeared and the restriction to a year applied to both. The appeal to Roman
Law ,does not, therefore, assist us.
We may now consider whether ss. 8 and 9 are
to be distinguished on the lines suggested. In Mulla's Indian Contract and
Specific Relief Acts there is a commentary which explains the words 'in the
manner prescribed by the Code of Civil Procedure' by observing-"that is to
say by a suit for ejectment on the basis of title : Lachman v. Shambu Narain
(1911) 33 All. 174." The question in that case in the words of the Full
Bench was"The sole question raised in this appeal is whether a plaintiff
who sues for possession and for ejectment of the defendant on the basis of
title and fails to prove his title is still entitled to a decree for possession
under section 9 of the Specific Relief Act, 1877, if he can prove possession
within six months anterior to the date of his dispossession." In the
course of decision the Full Bench dissented from the earlier view in Ram Harakh
Rai v. Sheodihal Joti(1) and observed:
"With great respect we are unable to
agree with this view. Section 8 of the Act provides that a person entitled to
the possession of specific immovable property may recover it in the manner
prescribed by the Code of Civil Procedure, that is to say, by a suit for
ejectment on the basis of title. Section 9 gives a summary remedy to a person
who has without his consent been dispossessed of immovable property, otherwise
than in due course of law, for recovery of possession without establishing
title, (1) [1893] 15 All. 384.
175 provided that his suit is brought within
six months of the date of dispossession. The second paragraph of the section
provides, that the person against whom a decree may be passed under the first
paragraph may, notwithstanding such decree, sue to establish his title and to
recover possession. The two sections give alternative remedies and are in our
opinion mutually exclusive. If a suit is brought under section 9 for recovery
of possession, no question of title can be raised or determined.
The object of the section is clearly to
discourage forcible dispossession and to enable the person dispossessed to I
recover possession by merely proving title, but that is not his only remedy. He
may, if he so chooses, bring a suit for possession on the, basis of his title.
But we do not think that he can combine both remedies in the same suit and that
he can get a decree for possession even if he fails to prove title. Such a
combination would, to say the least of it, result in anomaly and inconvenience.
In a suit under section 9 no question of title is to be determined, but that
question may be tried in another suit instituted after the decree in' that
suit. If a claim for establishment of title can be combined with a claim under
section 9, the court will have to grant a decree for possession or
dispossession being proved, in spite of its finding that the plaintiff had no
title and that title was in the defendant." We agree as to a part of the
reasoning but with respect we cannot subscribe to the view that after the
period of 6 months is over a suit based on prior possession alone, is not
possible. Section 8 of the Specific Relief Act does not limit the kinds of suit
but only lays down that the, procedure laid down by the Code of Civil Procedure
must be followed. This is very different from saying that a suit based on
possession alone is incompetent after the expiry of 6 months. Under s. 9 of the
Code of Civil Procedure itself all suits of a civil nature are friable
excepting suits of which their cognizance is either expressly or impliedly barred.
No prohibition expressly barring a suit based on possession alone has been
brought to our notice, hence the added attempt to show an implied prohibition
by reason of s. 8 (s. 7 of the Travancore Act) of the Specific Relief Act.
There is, however, good authority for the
contrary proposition.In Mustapha Sahib v.Santha Pillai(1),Subramania, Ayyar J.
observes "...... that a party ousted by a person who has no better right
is, with reference to the person so ousting, entitled to recover by virtue of
the possession he had held before (1) I.L.R. 23 Mad. 179 at 182.
176 the ouster even though that possession
was without any title." ................................
"The rule in question is so firmly
established as to render a lengthened discussion about it quite superfluous.
Asher v. Whitlock (L.R. 1 Q.B. 1) and the rulings of the Judicial Committee in
Musammat Sundar v. mussammat Parbati (16 I.A. 186) and Ismail Ariff v. Mahomed-Ghouse
(20 I.A. 99) not to mention numerous other decisions here and in England to the
same effect, are clear authorities in support of the view stated above......
Section 9 of the Specific Relief Act cannot possibly be held to take away any
remedy available with reference to the well-recognised doctrine expressed in
Pollock and Wright on possession thus :Possession in law is a substantive right
or interest which exists and has legal incidents and advantages apart from the
owner's title (p. 19)".
In the same case O'Farell J. points out that
"all the dictum of the Privy Council in Wise v. Ameerunissa Khatoon (7
I.A. 73) appears to amount to is this, that where a plaintiff in possession
without any title seeks to recover possession of which he has been forcibly
deprived by a defendant having good title, he can only do so under the
provisions of section 9 of the Specific Relief Act and not otherwise." It
is not necessary to refer to the other authorities some of which are already
referred to in the _judgment under appeal and in the judgment of the same court
reported in Kuttan Narayaman v. Thomman Mathai(1). The last cited case gives
all the extracts from the leading judgments to which we would have liked to
refer. We entirely agree with the statement of the law in the Madras case from
which we have extracted the observations of the learned Judges. The other cases
on the subject are collected by Sarkar on Evidence under s. 110.
The Limitation Act, before its recent
amendment provided a period of twelve years as limitation to recover possession
of immovable property when the plaintiff, while in possession of the property
was dispossessed or had discontinued possession and the period was calculated
from the date of dispossession or discontinuance. Mr. Nambiar argues that there
cannot be two periods of limitation, namely, 6 months and 12 years for suits
based on possession alone and that the longer period of limitation (1) 1966
Kerala Law Times 1.
177 requires proof of title by the plaintiff.
We do not agree.
No doubt there are a few old cases in which
this view was expressed but they have since been either overruled or dissented
from. The uniform view of the courts is that if s. 9 of the Specific Relief Act
is utilised the plaintiff need not prove title and the title of the defendant
does not avail him. When, however, the period of 6 months has passed questions
of title can be raised by the defendant and if he does so the plaintiff must
establish a better title or fail.
In other words, the right is only restricted
to possession.
only in a suit under S. 9 of the Specific
Relief Act but that does, not bar a suit on prior possession within 12 years
and title need not be proved unless the defendant can prove one. The present.
amended articles 64 and 65 bring out this difference. Article 64 enables a suit
within 12 years from dispossession, for possession of immovable property based
on possession and not on title, when the plaintiff while in possession of the
property has been dispossessed. Article 65 is for possession of immovable
property or any interest therein based on title. The amendment is not remedial
but declaratory of the law. In our judgment the. suit was competent.
Mr. Nambiar also relies in this connection
upon s. 110 of the, Indian Evidence Act and claims that in the case of the
Society there is a presumption of title. In other words, he relies upon the
principle that possession follows title, and that after the expiry of 6 months,
the plaintiff must prove title. That possession, may prima facie raise a
presumption of title no one can deny but this presumption can hardly arise when
the facts are known. When the facts disclose no title in either party,
possession alone decides. In this case s. 110 of the Evidence Act is immaterial
because neither party had title. It is for this reason that Mr. Nambiar places
a greater emphasis on the plea that a suit on bare possession cannot be
maintained after the expiry of 6 months and that the Society has a right to
plead jus tertii.
The first must be held to be unsubstantial
and the second is equally unfounded.
The proposition of law on the subject has
been summed up by Salmond on Torts (13th Edn.) at page 172 in the following
"The mere de facto and wrongful possession of land is a valid title of
right against all persons who cannot show a better title in themselves, and is
therefore suffi cient to support an action of trespass against such persons.
'Just as a legal title to land without the possession of it is insufficient for
this purpose, so conversely the possession of it without legal title is enough.
In other words, no defendant in an action of trespass can plead 178 the jus
tertii--the right of possession outstanding in some third person-as against the
fact of possession in the plaintiff." The maxim of law is Adversus
extraneous vitiosa possessio prodesse solet,* and if the plaintiff is in
possession the jus tertii ,does not afford a defence. Salmond, however, goes on
to say:
"But usually the plaintiff in an action
of ejectment is not in possession : he relies upon his right to possession,
unaccompanied by actual possession. In such a case he must recover by the
strength of his own title, without any regard to the weakness of the
defendant's. The result, therefore, is that in action of ejectment the jus
tertii is in practice a good defence. This is sometimes spoken of as the
doctrine of Doe v. Barnard [1849] 13 Q.B. 945." Salmond, however, makes
two exceptions to this statement and the second he states thus "Probably,
if the defendant's possession is wrongful as against the plaintiff, the
plaintiff may succeed though lie cannot show a good title: Doe d. Hughes v.
Dyball (1829) 3 C & P 610; Davision v. Gent (1857) 1 H & N 744. But
possession is prima facie evidence is not displaced by proof of title. If such
prima facie evidence is not displaced by proof of title in a third person the plaintiff
with prior possession will recover. So in Asher v. Whitlock [(1865) L.R. 1 Q.B.
1] where a man in closed waste land and died without having had 20 years'
possession, the heir of his devisee was held entitled to recover it against a
person who entered upon it without any title. This decision, although long, doubtful,
may now be regarded as authoritative in consequence of its express recognition
of the Judicial Committee in Perry v. Clissold [1907] A.C. 73." Mr.
Nambiar strongly relies upon the above exposition of the law and upon
institutional comments by Wiren "The Plea of jus tertii in ejectment"
(1925) 41 L.Q.R. 139, Hargreaves "Terminology and Title in Ejectment
(1940) 56 L.Q.R. 376 and Holdsworth's article in 56 L.Q.R. 479.
In our judgment this involves an incorrect
approach to our problem. To express our meaning we may begin by reading Perry
v. Clissold to discover if the principle that possession is *Prior possession
is a good title of ownership against all who cannot show a better.
179 good against all but the true owner has
in any way been departed from. Perry v. Clissold reaffirmed the principle by
stating quite clearly :
"It cannot be disputed that a person in
possession of land in the assumed character of owner and exercising peaceably
the ordinary rights of ownership has a perfectly good title against all the
world but the rightful owner.
And if the rightful owner does not come
forward and assert his title by the process of law within the period prescribed
by the provisions of the statute of Limitation applicable to the case, his
right is forever extinguished, and the possessory owner acquires an absolute
title." Therefore, the plaintiff who was peaceably in possession was
entitled to remain in possession and only the State could evict him. The action
of the Society was a violent invasion of his possession and in the law as it
stands in India the plaintiff could maintain a possessory suit under the
provisions of the Specific Relief Act in which title would be immaterial or a
suit for possession within 12 years in which the question of title could be
raised. As this was a suit of latter kind title could be examined. But whose
title? Admittedly neither side could establish title. The plaintiff at least
pleaded the statute of Limitation and asserted that he had perfected his title
by adverse possession. But as he did not join the State in his suit to get a
declaration, he may be said to have not rested his case on an acquired title.
His suit was thus limited to recovering possession from one who had trespassed
against him. The enquiry, thus narrows to this : did the Society have any title
in itself, was it acting under authority express or implied of the true owner
or was it just pleading a title in a third party ? To the first two questions
we find no difficulty in furnishing an answer. It is clearly in the negative.
So the only question is whether the defendant could plead that the title was in
the State ? Since in every such case between trespassers the title must be outstanding
in a third party a defendant 'will be placed in a position of dominance. He has
only to evict the prior trespasser and sit pretty pleading that the title is in
someone else. As Erle, J. put it in Burling' v. Read (11 Q.B. 904) 'parties
might imagine that they acquired some right by merely intruding upon land in
the night, running up a hut and occupying it before morning'. This will be
subversive of the fundamental. doctrine which was accepted always and was
reaffirmed in Perry V. Clissold. The law does not therefore, countenance the
doctrine of 'findings keepings'.
Indeed Asher v. Whitlock [1885] 1 Q.B. I goes
much further.
It laid down as the head-note correctly
summarizes 180 A person in possession of land without other title has a
devisable interest, and the heir of, his devisee can maintain. ejectment
against a person who had entered upon the land cannot show title or possession
in any one prior to the testator. No doubt as stated by Lord Macnagthen in
Perry v. Clissold, Doe v. Barnard (supra) lays down the proposition that
"if a person having only a possessory title to land be supplanted in the
possession by another who has himself no better title, and afterwards brings an
action to recover the land, he must fail in case he shows in the course of the
proceedings that the title on which he seeks to recover was merely
possessory". Lord Macnaghten observes further that it is difficult, if not
impossible to reconcile Asher v. Whitlock with Doe v. Barnard and then
concludes "The judgment of Cockburn, C.J., is clear on the point. The rest
of the Court concurred and it may be observed that one of the members of the
court in Asher v. Whit lock (Lush, J.) had been counsel for the successful
party in Doe v. Barnard. The conclusion at which the court arrived in Doe v.
Barnard is hardly consistent with the views of such eminent authorities on real
property law as Mr.
Preston and Mr., Joshua Williams-. It is
opposed to the opinions of modem text-writers of such weight and authority as
Professor Maitland and Holmes, J. of the Supreme Court of the United States
(see articles by Professor Maitland in the Law Quarterly Review Vols. 1, 2 and
4; Holmes, Common Law p. 244;
Professor J. B. Ames in 3 Hary. Law Rev. 324
n.") The difference in the two cases and which made Asher v.
White prevail was indicated in that case by
Mellor, J. thus "In Doe v. Barnard the plaintiff did not. rely on her own
possession merely, but showed a prior possession in her husband, with whom she
was unconnected in point of title. Here the first possessor is connected in
title with the plaintiff; for there can be no doubt that the testator's
interest was devisable." The effect of the two cases is that between two
claimants, neither of whom has title in himself the plaintiff if dispossessed
is entitled to recover possession subject of course to the law of limitation.
If he proves that he was dispossessed within 12 years he can maintain his
action.
it is because of this that Mr. Nambiar
claimed entitled to plead jus tertii. His contention is that in action of ejectment
(as opposed to an action of trespass) jus tertii is capable of 181 being
pleaded. The old action of ejectment was used to try freehold titles but it was
abolished in 1873. It was also used "for recovery of land by one who
claimed not the right to' seisin but the right to possession by virtue of some
chattel interest such as a term of year." In such cases "the defence
of jus tertii admits that the plaintiff had such a right of entry as , would
generally entitle him to succeed, but seeks to rebut that conclusion by setting
up a better right in some third person" or that the plaintiff had no right
of entry at all.
To summarize, the difference between Asher v.
Whitlock and Doe v. Bamard is this.: In Doe v. Barnard the principle settled
was that it is quite open to the defendant to rebut the presumption that the
prior possessor has title, i.e., seisin. This he can do, by showing that the
title is in himself; if he cannot do this he, can show that the title is in
some third person. Asher v. Whitlock lays down that a person in possession of
land has a good title against the world except the true owner and it is wrong
in principle for any one without title or authority of the true owner to
dispossess him and relying on his position as defendant in ejectment to remain
in possession. As Loft in his Maxim No. 265 puts it Possession contra omnes
velet praeter eur cui ius sit possessionis (He that bath possession bath right
against all but him that bath the very right): See Smith v. Oxenden 1 Ch. Ca
25. A defendant in such a case must show in himself or his predecessor a valid
legal title, or probably a possession prior to the plaintiff's and thus be able
to raise a presumption prior in time. It is to be noticed that Ames (Harvard
Law Review Vol. III p. 313 at 37); Carson (Real Property Statutes 2nd Ed. p.
180);
Halsbury (Laws of England, Vol. 24, 3rd Ed.
p. 255 f.n.(o);
Leake (Property in Land, 2nd Ed. p. 4, 40);
Lightwood (Time Limit. on Actions pp. 120-133); Maitland (supra), Newell
(Action in, Ejectment, American Ed. pp. 433-434);-Pollock (Law of Torts, 15th
Ed. P. 279); salmond Law of Torts (supra); and William and Yates (Law of
Ejectment, 2nd Ed., pp. 218, 250) hold that Doe v. Barnard does not represent
true law. Winer (to whom I am indebted for much of the information) gives a
list of other writers who adhere still to the view that jus tertii can be
pleaded.
Mr. Nambiar pressed upon us, the view that we
should not accept Perry v. Clissold. It must be remembered that that case was
argued twice before the Privy Council and on the second occasion Earl of
Halsbury, L. ' C. Lords Macnaghten, Davey, Robertson, Atkinson, Sir Ford North
and Sir Arthur Wilson heard the case. Lord, Macnaghten's judgment is brief but,
quite clear . Mr. Nambiar relies upon two other cases of, the Privy Council and
a reference to them is necessary.
In Dharani Kanta Lahiri v. Garbar Ali Khan,
25 M.L.J. 95 P.C. a suit 182 in ejectment was filed. The plaintiffs failed to
prove that the lands of which they complained dispossession were ever in their
possession within 12 years before suit and that the lands were not the lands
covered by a sanad which was produced by the defendants. The case is
distinguishable.
It is to be noticed that Lord Macnaghten was
the President of the Board and the judgment of the Board, December 5, 1912, did
not base the case on Doe v. Barnard or even refer to it. The second is Mahabir
Prasad v. Jamuna Singh, 92 I.C. 31 P.C. In this case the Board observed as
follows :"Counsel for the appellant (defendant) admits that in the face of
the ruling by the Board he could not impugn the reversionary right of the
plaintiff's vendors, but he contends that the defendant is in possession and in
order to eject him the plaintiff must show that there is no other reversionary
heir in the same degree 'or nearer than his assignors whose title he (the
defendant) can urge against the plaintiff's claim for ejectment. In other
words, the action being one of ejectment the defendant is entitled to plead in
defence the right of someone else equally entitled with the plaintiff's
vendors." After observing this the Board held that the defendant had
failed to prove his point. The observation does not lead to the conclusion that
a defendant can prove title in another unconnected with his own estate. The
case is not an authority for the wider proposition.
The cases of the Judicial Committee are not
binding on us but we approve of the dictum in Perry v. Clissold. No subsequent
case has been brought to our notice departing from that view. No doubt a great
controversy exists over the two cases of Deo v. Barnard and Asher v. Whitlock
but it must be taken to be finally resolved by Perry v. Clissold.
A similar view has been consistently taken in
India and the amendment of the Indian Limitation Act has given approval to the
proposition accepted in Perry v. Clissold and may be taken to be declaratory of
the law in India. We hold that the suit was maintainable.
It is next submitted that the High Court
should not have given its assistance to the plaintiff whose possession was
unlawful to begin with especially when, by granting the decree, an illegality
would be condoned and perpetuated. In support of this case the Society relies
on the provisions of Regulation IV of 1091 and other connected Regulations and
rules. It points out that under Regulation IV of 1091, it was unlawful for
anyone to occupy Government land and a punishment of fine in addition 183 to
eviction was prescribed, and all crops and other products were liable to
confiscation. If eviction was resisted the Dewan could order the arrest and
detention in jail of the offender. Section 18 barred Civil Courts from taking
any action in respect of orders, passed under the said Regulation except only
when it was established that the land was not government land. The civil court,
it is submitted, could not grant a decree for possession nor set up the
possession of a person who was an offender under the.
Regulation.
In our opinion these submissions are not
well-founded. The, Regulations were intended to regulate the relation of
Government and persons but had no bearing upon the relations between persons
claiming to be in possession. Further the penalty was. a fine for wrongful
occupation and in no sense a punishment for crime. The illegality of the
possession was thus not a criminal act and the regaining of lost possession
cannot be described as. an action to take advantage of one's own illegal
action. In fact the plaintiff was not required to rely upon any illegality
which is the consideration Which makes courts deny their assistance to a party.
The Society relied upon-the oft-quoted observations of Lord Mansfield, C.J. in
Holman v. Johnson, (1775) 1 Cowper 341 "the objection that a contract is
immoral or illegal as between plaintiff and defendant sounds at all times very
ill in the mouth of the defendant. It is not for his sake, however, that the
objection is ever allowed but it is founded in general principles of policy
which the defendant has the advantage of, contrary to the real justice, as
between him and the plaintiff, by accident, if I may say so. The principle of
public policy is this : ex dolo malo non oritur actio. No court will lend its
aid to a man who founds his cause of action upon an immoral or an illegal act.
If, from the plaintiff's own stating or otherwise the cause of action appears
to arise ex turpicausa or the transgression of a positive law of this country,
there the court says he has no right to be assisted. It is upon that ground the
Court goes; not for the sake of the defendant, but because they will not lend
their aid to such a plaintiff.
These are general observations applicable to
a case of illegality on which a party must rely to succeed. In a case in which
a plaintiff must rely upon his own illegality the court may refuse him
assistance. But there is the other proposition that if a plaintiff does not
have to rely upon any such illegality, then although the possession had begun
in trespass a suit can be maintained for restitution of possession. Otherwise
the opposite 184 party can make unjust enrichment although its own possession
is worngful against the claimant. It is to be noticed that the law regards
possession with such favour that even against the rightful owner a suit by a
trespasser is wellfounded if he brings the suit within 6 months of
dispossession. We have also shown ,that there is ample authority for the
proposition that even after the expiry of these 6 months a suit can be
maintained within 12 years to recover possession of which a person is deprived
by one who is not an owner or has no authority from him.
The Society next argues that sinceit has got
a second Kuthakapattom we must relate it back to the original dispossession and
treat it as a statutory order under the laws of Travancore. It refers us to the
Travancore Survey and Boundaries Regulation of May 1942 (Rule 9), the Land
Conservancy Regulation (as ,amended from time to time), the Puduval Rules and
the Land Assignment Regulations and some other rules to show that the .forest
lands were property of Government and the plaintiff could not be said to be
holding land under a grant from Government but, the Society is. We think that
this argument is of the same character as the argument about jus tertii. The
case is between two persons neither of whom had any right to the suit lands and
were trespassers one after the other. No question of implementing a statutory
order arises. The, grant of the second Kuthakapattom is not related back to the
grant of the original grant and can only be considered if and when it is
pleaded. It is therefore not necessary to consider this point at the moment
when we are not in possession of the case of the plaintiff which he may set up
in answer to this case.
This brings us to the question whether the
High Court should have allowed the amendment sought in 1965. The suit was
.,filed in 1942 and the second Kuthakapattom was granted in 1948. The last
amendment was asked for in 1958. Before this the plaintiff had pointedly drawn
attention to the fact that arguments based on the new Kuthakapattom were likely
to be pressed. The trial Judge had ruled that arguments could not be shut out
in advance. These circumstances have to be borne in mind in approaching the
problem.
It is, however, plain that after the grant of
Kuthakapattom 'in 1948 the possession of the Society became not only de facto
but also de jure unless there was a flaw in the grant.
It is equally plain that the Society could
only resist the present suit by proving its title or the authority of the true
owner, namely. the State. The former was not open to the Society before 1948
'but the latter was after the grant.
The Society contends that even if the facts
were not pleaded the documents were before the Court :and the parties knew of
them and indeed the plaintiffhad himself 185 caused some of them to be
produced. It was the duty of the court to take note of them and suo motu to
frame an issue.
This point has hardly any force. The Society
could take advantage of such-evidence as was provided by the plaintiff but it
had to put it in support of a plea. Issue No. 2 on which great reliance is
placed was not concerned with an abstract proposition but what flowed from the
pleas. Nor could the court frame an issue from documents which not the Society
but the plaintiff had caused to be brought on file.
The cases reported in Ganoo & Anr. v.
Shri Dev Sideshwar & Ors. (1), Shamu Patter v. Abdul Kadir Ravuthan and
Ors. (2) and Kunju kesavan v.. M. M. Philip, I.C.S., and Ors.(3)do not help the
Society. If the plea had been raised by the Society it would undoubtedly have
been countered and one does not know what use the plaintiff would have made of
the document's had got marked. Therefore it cannot be said that the trial Judge
'was, in error in not considering the documents.
This brings us to the general proposition
whether the High Court should have allowed the amendment late as it was.
The, plaintiff is right that the application
Was made literally on the eve of the judgment. This argument is really based on
delay and laches. The application has: not been made for the first time in this
Court when other considerations might have applied' It was made in the High
Court, after the argument based on the documents on record was urged. This
argument was also urged in the court of trial. The contention of the Society
was thus present on both the occasions and it would have been better if the
Society was directed to amend the pleadings before the argument was heard. The
omission, however, remained.
Now it is a fixed principle of law that a
suit must be 'tried on the original cause of action and this principle governs
not only the trial of suits but also appeals.' Indeed the appeal being a
continuation of the suit new pleas are not considered. If circumstances change.
they can form the subject of some other proceedings but need not ordinarily be
considered in the appeal. To this proposition there are a few exceptions.
Sometimes it happens that the original relief claimed becomes inappropriate, or
the law changes affecting the rights of the parties. In such cases courts may
allow an amendment pleading the changed circumstances, Sometimes also the
changed circumstances shorten litigation' and then to avoid circuitry of action
the courts allow an amendment' The practice of the courts is very adequately
summarized in Ram Ratan Sahu v. Mohant Sahu (4) Mookerjee and Holmwood, JJ.
have given them. kind of changed circumstances which the courts usually take
notice, with illustrations from decided cases. The (1) 26 Bom. 360.
(3) [1964] 3 S.C.R. 634.
L4 Sup. CI/68-13 (2) 35 Mad. 607 P.C.
(4) [1907] 6 C.L.J. 74, 186 judgment in that
case has been consistently followed in India. In Raicharan Mandal v. Biswanath
Mandal(1) other cases are to be found in which subsequent events were noticed.
The same view was taken by the Federal Court in Lachmeshwar Prasad Shukul v.
Keshwar Lal Chandhuri (2) following the dictum of Hughes, C.J., in Patterson v.
State of Albama(3). In Surinder Kumar & Ors. v. Gian Chand & Ors.
(4) this Court also took subsequent events
into account and approved of the case of the Federal Court. In view of these
decisions it is hardly necessary to cite further authorities.
Mr. Gupte on behalf of the plaintiff has
strenuously opposed the request for amendment. His objection is mainly based on
the, ground of delay and laches. He relies on Gajadhar Mahlon v. Ambika Prasad
Tiwari(5), R. Shanmuga Rajeshwara Sethupathie v. Chidambaram Chettiar(6) and
Kanda v Waghu(7) in which the Judicial Committee declined amendment before it.
These. cases were different. In the first case the Judicial Committee held that
it was within its discretion to allow amendment but did not feel compelled to
exercise the discretion. In the second case the amendment was no doubt refused
because it was asked for at the last moment but the real reason was that under
it a relief of a wide and exceptional nature was granted. The point was so
intricate that it required careful and timely pleading and a careful trial. In
the last case the Judicial Committee relying on the leading case of Ma Shwe Mya
v. Maung Mo Huaung(8) held that it was not open to allow an amendment of the
plaint to cover a new issue which involved setting up a new case.
As against these cases, this Court in L. J.
Leach & Co. v. Jardine Skinner & Co.(9) Pungonda Hongonda Patil v.
Kalgonda Shidgonda Patil(10) and A. K. Gupta and Sons v. Damodar Valley Corpn.
(11) allowed amendments when a fresh claim would have been time-barred. The
cases of this Court cannot be said to be directly in point. They do furnish a
guide that amendment is a discretionary matter and although amendment at a late
stage is not to be granted as a matter of course, the court must bear in favour
of doing full and complete justice in the case where the party against whom
amendment is to be allowed can be compensated by costs or otherwise. Also the
amendment must be one which does not open the case or take the opposite party
'by surprise.
(1) A.I.R. 1915 Cal. 103.
(3) [1934] 294 U.S. 600 at 607.
(5) A.I.R. 1925 P.C. 169, 170.
(7) L.R. 77 I.A. 15.
(9) [1957] S.C.R. 438.
(2) [1940] F.C.R. 84 at 87.
(4) [1958] S.C.R. 548 (6) [1938] P.C. 123.
(8) 1921 L.R. 48 I.A. 214, 217.
(10) [1957] S.C.R. 595.
(11) [1966] 1 S.C.R. 796.
187 In the present case the, amendment sought
was not outside the suit. In fact issue No. 2 could have easily covered it if a
proper plea had been raised. The Society was perhaps under an impression that
the fresh Kuthakapattom would be considered and the trial Judge had also said
that the argument could not be shut out. Although it is not possible to say
that parties went to trial in regards to the fresh Kuthakapattom, it cannot be
gain said that the plaintiff had himself caused all the documents necessary for
the plea to be brought on the record of the case. No doubt plaintiff tried to
implead Government with a view to obtaining an injunction but as no notice
tinder s. 80 of the Code of Civil Procedure was given this was an exercise in
futility. But the Society was under no disability except its own inaction.
If it had made a timely request it would have
been granted.
Thus it is a question of the delay and laches
on the part of Society. In so far as the court was concerned the amendment
would not have unduly prolonged litigation; on the other hand, it would have
cut it short. Without the amendment another suit based on the second
Kuthakapattom is inevitable. As we have shown above there is good authority in
support of the proposition that subsequent events may be taken note of if they
tend to reduce litigation. This is not one of those cases in which there is a
likelihood of prolonged litigation after remand or in which a new case will
begin. The amendment will prima facie allow the Society to show to the court
that in addition to possession it has also title. This will enable the court to
do complete justice, if the plea is found good, without the parties having to
go to another trial.
We are, therefore, of the opinion that we
should allow the amendment. Of course, the plaintiff will be at liberty to
controvert the new plea but he will not be allowed to raise new pleas of his
own having no relation to the grant of the second Kuthakapattom. As this
amendment is being allowed we do not consider it advisable to state at this
stage what the implications of the new grant will be under the law applicable
in 1948. We are, however, clear for reasons, already given, that the second
Kuthakapatttom cannot, be regarded as retroactive from the date of the grant of
the first Kuthakapattom. We wish to add that the document Ex. 1 does not
mention that it was to be retrospective. Now a formal document which has no
ambiguity cannot be varied by reference to other documents not intended to vary
it. The only other documents are Ex. 6, the order conferring the second
Kuthakapattom and Ex. 7 a demand by the Tahsildar of the Pattom calculated at
the same rate from the date of the first Kuthakapattom. This follows from the
Rules. Any person in unlawful possession may be compelled under the Rules to
pay pattom and 188 this is what appears to have been ordered. There is also
nothing to show that this was not the Tahsildar's own interpretation of the
facts and the documents. We are therefore quite clear that the second
Kuthakapattom must be read prospectively from the date of its grant, if, it be
held that it, is valid.
There are only two other matters to consider.
They are the question of mesne Profits and improvements. The rate of mesne
profits has already been decided and no argument was addressed to us about it.
We say no more about it except, that the rate Will be applicable to the new
state of facts in the case after the amendment. It is also not necessary to go
into the question of improvements now because in answer to the pleas to be
raised hereafter the question of improvements will have to' be gone into de
novo in the light of the findings reached. The argument of the parties that the
Rules.do not contemplate payment for improvement is neither here nor there.
That applies between Government and a private, party and not between two
private parties. These matters will,be left for determination in the
proceedings hereafter to be taken., In the result we dismiss the appeal as to
portion L(1) (a) both in regard to possession and mesne profits and improvements.
As regards L (1) (b) the amendment based on the second Kuthakapattom will be
allowed and parties will go to trial-on that amendment., The plaintiff will be
entitled to raise his defence in reference to the second Kuthakapattom. The
question of mesne profits and improvements in relation to L(1) (b) will be
reconsidered in the light of the finding regarding the second Kuthakapattom but
the, rate 'of mesne profits as already determined shall not be altered. The
plaintiff will, of course, be entitled to mesne profits till the date of the
grant of the second Kuthakapattom.
There is no doubt that the Society was
wrongly advised. and allowed the question of,. amendment to be delayed. At the
sane time by not allowing the amendment the plaintiff forces the Issue
regarding possession of L (1) (b). In our judgment the Society must pay the
costs thrown away, that is to say', that it must bear the costs incurred in the
High Court and the court of first instance by the plaintiff in Addition to
costs on its own account. 'In so far as the costs of this Court are concerned
parties will bear the costs as the case is being sent to the trial court for
further trial.
G.C: Appeal allowed in part and case
remanded.
Back
