Rev. Fr. K. C. Alexander Vs. State of
Kerala [1973] INSC 139 (16 August 1973)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN
DWIVEDI, S.N.
CITATION: 1973 AIR 2498 1974 SCR (1) 399 1973
SCC (2) 737
ACT:
Travancore Land Conservancy Act (4 of 1916),
s. 9-'Other product raised on land' if includes trees.
Trespasser-Right to compensation for trees
Planted on another's land.
HEADNOTE:
There was a dispute regarding the ownership
of certain land between a Jenmi family and the State Government, and the Jenmi
family filed a suit for declaration of its title.
While the dispute was pending, the appellant
applied to the Conservator of Forests for registration of the lands in his name
under the Travancore Land Conservancy Act, 1916, but the application was
rejected. After the suit filed by the Jenmi family was dismissed, the appellant
who was in possession of the land, was dispossessed. The appellant, thereafter.
filed a suit for the value of improvements affected by him on the land by
planting trees and constructing a building.
The trial Court decreed the suit for the
value of the building but rejected the rest of claim. The High Court dismissed
his appeal.
In appeal to this Court, it was contended
that : (1) there was no order of forfeiture of improvements as required under s.
9 of the Act; (2) the appellant was entitled to compensation under general,
law; and (3) the appellant was not served with a notice to quit as required by
s. 9 of the Act to enable him to cut and remove the trees.
Dismissing the appeal, HELD: (1) Section 9
provides for two notices to be given :
(a) one notice to be given to the person in
unauthorised occupation of government land to vacate within a reasonable time,
and (b) another for forfeiture of any crop or other product raised on the land
or to remove any building or other structure within a reasonable time. The
words 'raised on the land' qualify both the 'crop' and 'other product', and so,
the words 'other product' have to be read in the context of the word 'crop'. So
read, trees would not be included within the meaning of 'other product raised
on the land in s. 9 of the Act, and therefore. there is no obligation on the
respondent to give notice of forfeiture.
[405D-H; 406E] Clark and Another v. Gaskarth,
8 Taunt 431, applied.
(2) (a) The trial court and High-Court found
on the evidence that the appellant's possession commenced only after his
application for registration was rejected, and that. the improvements, if any,
were effected by him only thereafter, with full knowledge that the title to the
lands was in dispute. Therefore, he could not be said to be a bona fide
trespasser. It could not also be contended that nevertheless he was a bona fide
trespasser entitled to compensation on the basis that he entered upon the land
with a bona fide intention of improving the land. Such a contention would give
validity to a dangerous principle which will condone all acts of deliberate and
wrongful trespass, be-cause, any person desperate enough to trespass on other
man's land without any claim of title can always plead that he had a bona fide
intention of improving the land whether or not the owner of the land wanted the
improvement. The maxim of English law quicquid plantatur solo, solo cedit
(whatever is affixed to the soil belongs to the soil) is not applicable to
India. but that is not to say that wrongful trespasser can plant trees on
someone else's land and claim a right to those trees after he is evicted.
[406E-H; 407A] Vallabdas Narainji v.
Development Officer, Bandra, A.I.R.
1929 P.C. 163, applied.
400 (b) in any case, the position of a
trespasser cannot be better than that of a lawful tenant, who, having lost his
possession cannot claim compensation or damages for anything erected on the
land or any improvements made therein. [407H] (3) There are no clear
allegations in the plaint that the appellant was evicted without notice. No
issue had been framed regarding the notice of eviction not being given and no
application for framing such an issue was filed in the trial court, or the High
Court or this Court. Therefore, the appellant, who was not a mere trespasser
but one who had deliberately entered upon the land knowing full well that he
had no right, claim or title to the land, or any manner of right to enter the
land, and who had been rightly evicted as a trespasser, should not be permitted
to raise such a contention in this Court. [408H-409B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 744 of 1967.
Appeal by special leave from the judgment and
decree dated the 2nd March 1965, of the Kerala High Court at Ernakulam, in A.
S. No. 216 of 1961.
J. Krishnamoorthy Iyer, Annamma Allexander,
S. K. Mehta, K. R. Nagaraja, Qamaruddin and Vinod Dhawan, for the appellant.
A. R. Somnath Iyer and M. R. K. Pillai, for
the respondent.
The Judgment of the Court was delivered by
JAGANMOHAN REDDY, J.-This appeal is by special leave against the judgment and
decree of the High Court of Kerala which dismissed an appeal against the
judgment and decree of the Subordinate Court of Havelikkara. The appellant had
filed a suit on October 24, 1942, for the recovery of Rs. 2 lakhs and interest
thereon from the date of suit and for costs originally against the State of
Travancore now the State of Kerala-the respondent-and three others who however
were not made parties in the appeal before the High Court. It has alleged in
the plaint that the plaintiff (appellant) was wrongfully dispossessed from 160
acres of land along with the improvements which had been effected by him and as
the State had appropriated those improvements without any right or title
thereto he claimed the value of those improvements.
It was the appellant's case that he had been
in occupation of the said 160 acres of Cherikkal land (unregistered dry lands
in hilly tracts) about which and the adjoining lands there was a dispute as to
whether the same belonged to a jenmi family known as Koodalvalli
Illom--hereinafter called 'the Illom--or to the Government of the erstwhile
Travancore State. The appellant's father and the appellant had occupied these
lands, made improvement thereon by planting coconut trees, arecanut palms,
peppervines, rubber-trees, jack trees, other trees, and by constructing
bungalow, huts, wells etc. in the bona fide belief that the lands belonged to
the Illom. It was stated that according to the practice prevailing in the
erstwhile State of Travancore the cultivators could enter into unoccupied waste
lands belonging to the janmies with the object of cultivating and improving
them, and as they held the lands under them by paying rent, the consent of the
Jemies to such occupation was implied. This practice it seems, 401 was also
current in respect of lands belonging to the, Government be-fore the Travancore
Land Conservancy Act 4 of 1091 (24-7-1916) (hereinafter called 'the Act'). It
is the case of the appellant that even, after the Act was passed, unauthorised
occupants of land belonging to the Government who had made improvements therein
had, under the rules made both under the Act and the Land Assignment Act a preferential
claim over others for getting kuthakapattom or assignment of the property in
their possession.
It may be mentioned that in respect of the
160 acres of land of' the Illom which were occupied by the appellant's father
and the appellant, there was a dispute between the Illom and the Travancore
State from about 1848. While this dispute was pending it appears the appellant
applied to the Conservator of Forests for registration of the lands in his
name, but the application was rejected on June 14, 1919 stating that the land
applied for cannot be registered (Ext.
A). While the application for registration
was pending, the dispute between the Illom and the State of Travancore had
reached a stage when the Illom had to institute a suit O. S.
No. No. 126 of 1096 (January 1918) in the
District Court at Quilon for a declaration of its title to those properties.
In that suit the appellant, after his
application for registration was rejected, sought to get himself impleaded, but
that application also was rejected. Thereafter the suit filed by the Illom was
dismissed on 28-6-1109 (February 10, 1934). An appeal against it was dismissed
on September 27, 1943. It may here be mentioned that while the suit of the
Illom i.e. O.S. No. 126 of 1096 M.E. was pending in the District Court, Quilon,
the Government of Travancore had initiated proceedings in ejectment against the
appellant by L. C. Case No. 112 of 1100; (1925 A.D.). As the suit of the illom
had been finally disposed of and the title of' the Illom to the lands was not
established, the appellant apprehending that he might be ejected in the above
L.C. Case filed a suit No. O.S. 156 of 1103 M.E. (1927-28 A.D.) in the District
Court at Quilon against the respondent to establish his right and title to the
said 160 acres and in the adjoining Cherikkal lands in his possession. In that
suit an injunction was prayed for in respect of 100 acres of the property
involved in the suit, but the prayer was rejected.
Against that order a Civil Miscellaneous
Appeal No. 206 of 1110 M.E. (1934-35 A.D.) was filed in the High Court of
Travancore. The High Court issued a commission for inspecting the properties
and the Commissioner in his report part 13 of Ext. CC set out the improvements
made by the appellant on the lands which comprised of a bungalow in which the
appellant was residing, a number of small houses.
a rubbers state, and a large number of other
valuable trees like jack trees, mango trees, coconut trees etc. It appears that
as there was no injunction restraining his dispossession in L.C. Case No. 112
of 11,00 M.E. an order was passed for dispossessing the appellant on July 24.
1939, Ext. VI. The appellant, pursuant to this order, was dispossessed from the
lands and possession of these lands was given to the second defendant Nair
Service Society Ltd.
in August 1939. Thereafter the suit out of
which this appeal arises was filed against the Government on October 24, 1942.
402 The respondent-State contended that the
appellant encroached on the suit lands, that proceedings were taken against him
in L.C. Case No. 112 of 11 00 M. E. and he was evicted in due course, that the
trespass by the appellant was of recent origin, that the allegation that the
entry was made in the belief that the land belonged to the Illom was false,
that the Revenue and Forest Departments did not harass the appellant but they
took steps for dispossessing him only in accordance with the law, that the
Commissioner's report was not correct in that all the improvements noted by the
Commissioner were not made by the appellant but by other independent squatters,
that after due notice an order of forfeiture had been passed in L.C. Case No.
112 of 1100 M.E.
and the appellant was therefore not entitled
to claim any value for improvements as it was his duty to remove any building
before he was evicted. The respondent also averred that it had not taken
possession of any crops or movables as stated in the ,plaint and that the
movables found in the building were attached for the realisation of arrears of
fine etc. There were other allegations also but it is unnecessary for purposes
of this appeal to refer to them.
Several issues were framed, but it is not
necessary to refer to :them except to say that the suit was decreed only for
Rs. 3000/being the value of the appellant's bungalow taken possession of by the
respondent. The rest of the claim was dismissed. it was observed by the Trial
Court that though there is no specific evidence to show when exactly the
possession of the appellant had commenced, the evidence however indicated that
it must have started close to the year I 100 M. E. and that in any case the
claim of the appellant that possession was from 1030 M.E. was not true inasmuch
as from the year 1067 M.E. when the Act was passed possession without
permission was penal and it could not be imagined that the appellant was left
in peace for all these long years. The Trial Court also held that all through
these long years there had been a dispute as to the title between the Illom and
the State and after the suit of the Illom was dismissed and the Illom's title
was not sustained, the allegation that the improvements were effected cannot be
stated to be bona fide. It pointed out that the plaintiff (appellant) had
applied to get himself impleaded on 0.S. No.126 of _ 109,6 M. E. but his
application was rejected, and after that suit was dismissed the appellant again
applied for registry, but that was also rejected. All this, according to the
Trial Court, would show that the appellant was aware that he was remaining on
Government lands without title. It was further held that the greater part of
the improvements were effected by the appellant after the proceedings in the
L.C. Case No. 112 of 1100 M.E. were stayed, as such it cannot be said that
these improvements could have been effected in good faith. With respect to the
allegation that an order of forfeiture was not served on the appellant under s.
9 of the .Act, the Court observed that though the State had in its written
statement contended that such an order had been passed, no order was produced
in evidence and consequently it was conceded by the Government Pleader that no
such order was passed. In the circumstances the question that had to be
considered was whether without an order of forfeiture being passed, the
respondent could forfeit the improvements. On this issue it was held that no
notice, of forfeiture of trees. need be given under s. 9 of the Act and,
therefore no compensation or damages were payable in respect thereof.
The High Court accepted the finding of the
Trial Court on issue. It observed that the evidence in the case indicated that
the possession of the father of the appellant must have commenced close to the
year 1100 M.E. and consequently the claim of the appellant that lie was in
possession from 1030 M.E. cannot be true. It then said : "If the possession
commenced only about the year 1100, it certainly cannot be under any bona fide
claim of title for even on. 12-6-1094, the petitioner knew that the land was
Government land and had then applied for assignment of the land."
Accordingly the High Court found that at no time the occupation of the land by
the appellant was under a bona fide claim of title.
The contention of the appellant that the
trees which are the subject-matter of the appeal should have been forfeited by
an order passed under s. 9 of the Act and in the absence of such. an order his
right to the value of those trees had to be adjudged and paid. to him was also
negatived, as the Court held that the words "any crop or other product
raised on the land" occuring in s. 9 of the Act would not include trees.
In its view these words take in what is familiarly known in law as 'emblements'
which according to Black's.
Law Dictionary mean "Such products of
the soil as are annually planted, served and saved by manual labour, as
cereals, vegetables, Grass maturing for harvest or harvested, etc., but not
grass on lands used for pasturage." In this view it held that compensation
for trees which are to be dealt with under the general law cannot be decreed in
favour of a mere trespasser who had no rights therein. It was also of the view
that the claim for compensation for trees which has to be dealt with under the
general law under which a mere trespasser would have no rights to the payment
of compensation nor could be. appellant be allowed to remove them after his
dispossession.
Another reason for disallowing the
compensation for trees given by the High Court was that the position of a
trespasser-whether he be a mere trespasser or a trespasser under a bona fide
claim of title--cannot be better than that of a tenant, and that if this is
correct, then the appeal has to be dismissed on the short ground that there is
no principle of law or equity which requires the payment of compensation in
respect of trees, the ownership of which was all along, or at any rate from the
dale of the trespasser's dispossession, vested in the State.
The learned advocate for the appellant has
reiterated the submissions made before the Trial Court and the High Court and
contends that there is no order forfeiting the improvements as required under
s. 9 of the Act, and if s. 9 does not apply and there is no right of forfeiture
as contemplated under s. 9, then the appellant is entitled to compensation
under the general law. Apart from this contention, towards the end of his
argument, the learned advocate for the appellant sought to make out a fresh
case, namely, that as the appellant was not served with a notice to quit as
required under s. 9 of the Act but was forcibly evicted without giving him an
opportunity of cutting and taking away 404 the trees etc. from the lands from
which he was evicted, he would be entitled to claim compensation for the
improvements made by him.
It may be stated that the finding that the
possession of the appellant ,commenced after his application for registration
was rejected in 1919, and the improvements, if any must have been effected only
thereafter with full knowledge that the title to the lands was in dispute
between the Illom and the Government, is unassailable. We have earlier adverted
to Ext. A and also to the fact that after the application for registration was
,rejected the appellant tried to get himself impleaded in the suit filed by the
Illom against the State which application was also rejected and so the claim
that his possession was bona fide or that he was a bona fide .trespasser has no
validity. This finding is fortified by s. 5 of the Act which provides that from
and after the commencement of the Act it shall not be lawful for any person to
occupy land which is the property of the Government whether Poramboke or not
without the permission from the Government or such officer of the Government as
may be ,empowered in that behalf. In view of this specific provision the
contravention of which is punishable under s.
6 thereof, his conduct in applying for registration
and for getting himself impleaded in the suit of the Illom against the
Government, would show that he knew that the land was Government land or land
in which the Government had a claim.
In these circumstances he cannot be said to
be a bona fide trespasser particularly after he had applied to the Government
for obtaining .a registration in his name on the basis that it was Government
land.
It is however urged before us that the High
Court was in error in thinking that the appellant did not occupy the lands as a
trespasser with a bona fide claim of title because it was his case that he
trespassed upon the land with a bona fide intention to improve the land, and as
such he can still be considered as a bona fide trespasser entitled to
improvements under the general law.
Before dealing with this aspect,, we will
first consider the question whether trees are included within the meaning of s.9,
so as to entitle the appellant to a notice of forfeiture thereunder. Section 9
of the Act is in the following terms :
"Any person unauthorisedly occupying any
land for which he is liable to pay a fine under section 6 and an assessment or
prohibitory assessment under section 7, may be summarily evicted by the
Division Peishkar, and any crop or other product raised on the land shall be
liable to forfeiture and any building or other structure erected or anything
deposited thereon shall also, if not removed by him after such written notice
as the Division Peishkar may deem reasonable, be liable to forfeiture. 'Forfeiture
under this section shall be disposed of as the Division Peishkar may direct.
An eviction under this section shall be made
in the following manner, namely:
By serving a notice on a person reported to
be in occupation or his agent, requir ing him, within such time as the Division
Peishkar may deem reasonable after receipt of the said 405 notice to vacate the
land, and if such notice is not obeyed, by removing or deputing a subordinate
to remove any person who may refuse to vacate the same, and, if the officer
removing any such person shall be resisted or obstructed by any person, the
Division Peishkar shall hold a summary enquiry into the, facts of the case and,
if satisfied that the resistance or obstruction still continues, may issue a
warrant for the arrest of the said person, and on his appearance may send him
with a warrant in the form of the Schedule for imprisonment in the Civil Jail
of the District for such period not exceeding 30 days as may be necessary to
prevent the continuance of such obstruction or resistance Provided that no
person so committed or imprisoned under this section shall be liable to be
prosecuted under sections 176, 179 and 181 of the Travancore Penal Code in
respect of the same facts." This section provides for two notices to be given
one notice is to be given to the person who is in unauthorised occupation of
Government land to vacate the land within a reasonable time and the other
notice is to forfeit any crop or other product raised on the land or to remove
any building or other structure erected or anything deposited therein within a
reasonable time as may be stated in the notice. It was conceded before the
Trial Court and no attempt was made to establish anything to the contrary
before the High Court that no notice of forfeiture as required under s. 9 was
given to the appellant. In these circumstances, the question that would arise
for determination is whether the trees come within the description of
"other product raised on the land". It is stated before us that at the
time when the appellant was evicted the Transfer of Property Act was not in
force. But this is not relevant as what has to be considered is whether trees
can be said to be "other product raised on the land".
The words "raised on the land"
qualify both the 'crop' and 'other product', so the words "other
product" have to be read in the context of the word 'crop' which precedes
it.
It was pointed out by the learned advocate
that the High Court was in error in equating other product raised on the land
with emblements because the definition of crop in Black's Law Dictionary does
include emblements, as such the words 'other product' cannot also be treated as
emblements and must therefore be given a different meaning which according to
him would include trees. No doubt one of the meanings given in the Black's Law
Dictionary does say that in a more restricted sense the word is synonymous with
'fructus industrials'. But the meaning to be ascribed to that word is that it
connotes in its larger signification, products of the soil that are grown and
raised yearly and are gathered during a single season. In this sense the term
includes "fructus industrials" and having regard to the etymology of
the word it has been held to mean only products after they have been severed
from the soil. The same dictionary gives the meaning of the word
,,product" as follows :
"Product. With reference to property,
proceeds.: yield; income; receipts;
return . ............
406 The "products" of a farm may
include, the increase of cattle on the premises................" Even
under this definition "product" cannot mean anything which is
attached to the land like trees. It may, however, include the fruit of the
trees. This view of ours is supported by the case of Clark and Another v.
Gaskarth(1).
That was a case of a trespass for breaking
and entering the closes of the plaintiffs and tearing up, digging up, cutting
down, and carrying away the plaintiff's trees, plants, roots and seeds, growing
on the closes. Notice of this trespass was given to the defendant. At the time
of the distress the sum of pound 281.6 s. was due from the plaintiffs to the
defendant for rent in respect of the nursery ground. The question before the
Court was whether the plaintiffs were entitled to recover against the defendant
damages caused to them by cutting down and carrying away the plaintiffs' trees.
It was Contended-that the defendant's action was justified under the statute II
G. 2, C. 19, s. 8, which after enumerating certain crops, empowered the
landlord to seize as a distress any "other product whatsoever which shall
be growing on any part of the estate demised" and, therefore, the trees
and shrubs in question came within that description. The Court rejected the
contention that the trees and shrubs could be distrained and held that the word
product' in the eighth section of the statute did not extend to trees and
shrubs growing in a nurseryman's ground, but that it was confined to products
of a similar nature. with those specified in that section, to all of which the
process of becoming ripe, and of being cut, gathered, made, and laid up when
ripe, was incidental. In our view, therefore, trees are not included within the
meaning of 'other products raised on the, land' in s. 9 of the Act and there
is, therefore, no obligation on the Government to give notice of forfeiture
under that section.
It is then contended that even if trees are
not included in s. 9 and no notice of forfeiture is necessary, under the
general law even a trespasser on the land, whether bona fide or not, is entitled
to compensation or damages for the improvements made by him on the land We have
already agreed with the Trial Court and the High Court that the appellant was
not a bona fide trespasser. But the learned advocate for the appellant submits
that it was not his case nor is it under the general law necessary for a person
who trespassed on the land to trespass with a claim of bona fide title.
According to his submission a person is
nevertheless a bona fide trespasser if he enters upon the land with a bona fide
intention of improving the land. No authority has been cited for this novel
proposition, and if accepted, it would give validity to a dangerous principle
which will condone all acts of deliberate and wrongful trespass because any
person desparate enough to trespass on other mans' land without any claim of
title can always plead that he had a bona fide intention of improving the land
whether the owner of that land wants that improvement or not. This vicarious
and altruistic exhibition of good intention may even cause damage to the land
of an owner who may not want improvements of such a kind as tree plantation. It
is true that the maxim of the English law "quicquid plantatur solo, solo
cedit" i.e. whatever is affixed to the soil belongs to the soil, is. not applicable
in (1) 8 Taunt 431, 407 India but that is not to say that a wrongful trespasser
can plant trees on some one else's land and claim a right to those trees after
he is evicted. The case of Vallabdas Narainji v. Development Officer,
Bandra(1), which was cited by the learned counsel for the appellant does not
assist him, for the Privy Council did not think it necessary to give a decision
on what it termed to be a far-reaching contention. That was a case in which the
Government had taken possession of the lands and had erected certain building
on the land before a decision under s. 6 of the Land Acquisition Act was made
as to the appellant's property arid it was contended that the appellant should
be allowed the value of the land in the state in which it then was i.e.
with buildings on it. It appears that the
Government had resolved to acquire the land in question and other lands and by
arrangement with certain of the sutidars it took possession of such land,
including a portion which was in the occupation of the appellant. Upon such
land, including a portion in the possession of the appellant they proceeded to
erect buildings without the necessary notification under s. 6 of the Land
Acquisition Act which was not served until November 4, 1920. On these findings
it was observed that the Government were in a position, by law at any rate, to
regularize their possession by such a notification a fact which becomes
material when it has to be considered what the nature of the trespass is. Both
the Assistant Judge and the High Court negatived the claim of the appellant.
Before the Privy Council it was contended on behalf of the appellant that in
the various cases relied upon, there was at least some genuine claim or belief
in the party erecting the buildings that he had a title to do so, even though
he was eventually held to be a trespasser; and it was urged that no such claim
or belief existed in that case, in which it was said the Government without any
pretence of a right, tortuously invaded the appellant's property and proceeded
to deal with it as their own. it is in this context that the respondent's
contention that even if the appellants were considered to be mere trespassers
they would still be entitled to the value of the improvements and contest the
claim of the appellant was described, as already stated, as a far-reaching
contention. The Board, however, agreed with what was apparently the view of
both Courts in India that under the circumstances of this case, as already set
forth, by the law of India, which they appear to have correctly interpreted,
the Government officials were in possession "not as mere trespassers"
but under such a colour of title that the buildings erected by them on the land
ought not to be included in the valuation as having become the property of the
landowner. This case does not support the contention that a mere trespasser who
has deliberately and wrongfully contrary to the provisions of s. 5 of the Act,
entered 'upon another's land which makes such an act even punishable under s. 6
thereof, is entitled to compensation for the trees planted by him on the land.
In any case, as the High Court rightly
observed, the position of a trespasser cannot be better than that of a lawful
tenant who having lost his possession cannot claim compensation or damages for
anything erected on the land or any improvements made therein. The appellant's
claim after he was evicted cannot, on the same parity of reasoning, be held to
be valid. Once the appellant's counsel was confronted I with this (1) A.I.R. 1929
P.C. 163.
408 proposition, he tried to raise an
entirely new point, namely, that no notice of eviction was given to the
appellant, and if such a notice had been given to him under s. 9, he would have
cut the trees and taken them away, within the time allowed for him to vacate
the lands. In support of this contention he has referred us to the leadings
contained in paragraph-3 of the plaint in which it is stated :
"The improvements effected by the
plaintiff have a value of Rs. 2 lakhs as per the accounts shown below. In his
helplessness the plaintiff had even applied to Government to give him the land
in which he had effected improvements, on kuthakapattom. But out of the said
land 160 acres were taken out of my possession and given to the 2nd defendant
even without giving me the opportunity to remove the movable improvements, such
as cultivation, cattle, machines, utensils, houses, stocked crops, ripe crops
etc., belonging to me." These averments in the above paragraph do not
clearly allege that he was evicted without notice, nor has any allegation been
made that he was forcibly evicted from the lands with the help of the police
etc. as it has now been contended before us. On the other hand what the
plaintiff (appellant) stated shows that no opportunity was given to him to
remove the movable improvements, such as cultivation, cattle, machines,
utensils, houses, stocked crops, ripe crops etc.
which belonged to him. There is nothing
stated by him that he had no opportunity to cut trees and take them away. Even
in paragraph-4 of the plaint where he complains that no notice of forfeiture
was given to him, he mentions only the items referred to in paragraph-3. It is
in this connection, he says, that no legal procedure had been followed by
Government for taking them into possession, which only implies that it is in
respect of the items mentioned in paragraph-3. It is again stated in,
paragraph-4 that "It was irregular on the part of Government to take
possession of the above items". The respondent did not understand the
averments in the plaint as alleging that no notice to quit was given to him is
evident from the written statement of the respondent in paragraph, where it is
stated thus :
"This defendant submits that after due
notice an order of forfeiture has been passed in Poramboke Case 112 of 11 00
and the plaintiff is therefore not entitled to claim any value of improvements
or value of any building." The issues that had been famed by the Trial
Court also do not refer to this aspect. No doubt in the evidence of the
plaintiff P.W. 1 states that he was evicted from the lands without giving him
an opportunity to remove the improvements, and in cross-examination he was
asked whether he was not given any notice prior to the dispossession and he
said that certainly no notice was, received. P.W. 4 the Manager was asked in
cross-examination whether he had been given any prior information or notice
about eviction and this witness also said that there was no prior information
or notice. While these passages might show that no notice of eviction was
given, even at that stage there was no application for an issue being framed,
nor has such an application been made in the appeal before the High Court, nor
even before this Court. en it has been 409 held that the appellant was not a
mere trespasser and had deliberately entered upon the lands knowing fully well
that he had no right, claim or title to the lands or had in any manner a right
to enter the land and has been rightly evicted as a trespasser, he cannot now
be permitted to raise this contention before us.
In the view we have taken, the appeal has no
substance and is accordingly dismissed with no order as to costs, but the court
fee will be recovered from the appellant.
V.P.S.
Appeal dismissed.
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